1838. BOYD 1. THE CROYDON tinguished from natural persons. All acts of parliament that are in restraint or derogation of the common law right of the subject are to receive a strict construction-Per Lord Eldon, in Ash v. Abdy, 3 Swanst. 664. The RAILWAY Co. statute of mortmain is directed against both buyer and seller; the latter may be an ordinary person, the former a corporation. In no case has the word "person," standing alone, ever been held to include a corporation. Then, is there anything in this act of parliament to shew that the legislature in the clause in question intended the company to be included in the term "person"? In section 155 (one of those relied on by the defendants), the acts that are prohibited are only such as could be done by individuals, and penalties are imposed, with power of imprisonment in the event of their not being paid: that section therefore could hardly apply to the corporation. Three descriptions of persons are adopted in the act-"persons,' "parties," and "corporations :" and there are very many clauses evidently shewing that "person" and " party" are used advisedly to mean persona individua, and that, where corporations are intended, such intention is plainly expressed. Such is the inference to be drawn from a comparison of the language used in sections 1, 3, 8, 26, 32, 34, 35, 36, 39, 40, 41, 43, 53, 56, 62, 65, 86, 109, 111, 112, 120, 121, 123, 125, 134, 135, 150, 155, 159, 162, 163, 171, 173, 174, 191, 193, 197, 200. The legislature has clearly by the interpretation clause limited the meaning of the word "person" to the subordinate agents of the com pany. In the corresponding clause of the Brighton Railway act, 1 Vict. c. cxix, the words are "No action &c. shall be brought against any person or corporation, for anything done or omitted to be done" &c.—the very words which, if inserted here, would have rendered discussion unnecessary. In Scales v. Pickering, 1 M. & P. 195, 4 Bing. 448, Best, C. J., says: "If the words of the act be ambiguous or doubtful, every presumption must be 1838. BOYD v. THE CROYDON made against the powers of the company, and in favour of individuals." Wherever the legislature have intended the word "person" to have so large and comprehensive a RAILWAY CO. meaning as is here contended for, they have expressed their intention in apt and clear language. Thus, in the 3 & 4 Will. 4, c. 27, s. 1, and c. 74, s. 1, it is declared that "the word 'person' shall extend to a body politic, corporate, or collegiate, as well as an individual." And in the tithe commutation act, 6 & 7 Will. 4, c. 71, s. 12, it is enacted" that, in the construction and for the purposes of that act, unless there be something in the subject or context repugnant to such construction, the word 'person' shall mean and include the king's majesty, and any body corporate, aggregate or sole, as well as an individual." Wilde, Serjeant, and Kennedy, in support of the rule, were stopped by the court, 66 or TINDAL, C. J.-It appears to me that the company who are defendants in this action are within the protection of the 179th section of this act. It is perfectly clear that in very many of the clauses that have been referred to, the word "person" could by no possibility have been intended to include the company; for instance, where the directors or other common individuals are spoken of, or where the word "persons' parties" is put in opposition to "corporations." But it is equally clear, and indeed it is conceded, on the part of the plaintiff, that "corporations' may be included in the words "persons" or "parties." The question is, whether or not the word "person" in the 179th section is used in a qualified sense. It is to be observed that it is not a clause requiring anything to be done by the company. The interpretation clause professes to explain the sense in which particular words are used; but it does not necessarily follow that those words are to receive the same construction throughout the act. 46 1838. BOYD V. THE CROYDON I cannot read the 179th section without coming to the conclusion that it was intended to embrace any defendant. It enacts that no action, suit, or information, nor any other proceeding, of what nature soever, shall be brought, RAILWAY CO. commenced, or prosecuted against any person, for anything done or omitted to be done in pursuance of this act, or in the execution of the powers or authorities, or any of the orders made, given, or directed, in, by, or under this act, unless twenty days' previous notice in writing shall be given by the party (dropping the word first used) intending to commence and prosecute such action, suit, information, or other proceeding, to the intended defendant," &c.; and so it goes on to the end using the general term "defendant." I am clearly of opinion that the company fall within this description. The section which follows, viz. the 180th, is even stronger: it enacts "that no plaintiff shall recover in any action for any irregularity, trespass, or other wrongful proceeding done or committed in the execution of this act, or in, under, or by virtue of any power or authority hereby given, if tender of suffificient amends shall have been made by or on behalf of the party who shall have committed such irregularity, trespass or other wrongful proceeding, before such action brought; and in case no tender shall have been made, it shall be lawful for the defendant in any such action, by leave of the court where such action shall depend, at any time before issue joined, to pay into court such sum of money as he shall think fit; whereupon such proceedings, order, and adjudication shall be had and made in and by such court, as in other actions where defendants are allowed to pay money into court." By the 1st section of the act the company are made capable of being sued: and it is impossible not to see, that, if they are excluded from the benefit of the 179th section, the very parties. most standing in need of protection, and about whose purpose and situation the plaintiff could have no doubt, would 1838. BOYD THE CROYDON be deprived of it. If the action is brought against an individual, the plaintiff may reasonably entertain doubt as to whether or not the act he complains of is within the RAILWAY CO. protection of the statute; but there could be none when he brings his action against the company. Without impugning any of the arguments urged before us as to the common law meaning of the word "person," I think we should not be giving effect to the intention of the legis lature, unless we held the company to be comprehended within that term in the clause more immediately in question. I therefore think the rule for entering a nonsuit must be made absolute. PARK, J.-I am of the same opinion. It does not fol low, that, because in this act of parliament the words "person" and "party" are sometimes so used that they can only intend individuals, the same limited construction is to be applied throughout the whole act. VAUGHAN, J.-It is not surprising that in an act of parliament of such enormous length, the same words should sometimes be used in different senses. Looking at the object of the act, it is impossible to conceive that the legislature did not intend to include the company in the protecting clauses. Striking out of the 179th section the words "against any person" (and the clause would read as well, and be equally effective without them), there could not be a doubt as to the intention of the act. The use of the word "defendant" throughout the remainder of the clause materially tends to the same conclusion. COLTMAN, J.-In construing an act of parliament, whether public general, or of the nature of the act now under consideration, we are bound to ascertain as far as we can what was the intention of the legislature, and, if the language used be sufficient, to give effect to such intention. The interpretration clause, the object of which in an act of parliament is to aid the construction, is wholly affirm ative in its nature. We must give effect to the words used to the full extent of that clause: but it does not follow that the language of the act is to be restrained by the interpretation clause, and deprived of their natural and usual signification, where they are obviously so used by the legislature. It is obvious here that the act intended to give full protection to the company. In the absence of an interpretation clause, I should feel no difficulty in holding that the company might be included in the term "person:" and I see no reason why the introduction of that clause should narrow the construction. Upon the whole I think we do no violence to the language of the act, but, on the contrary, do but carry into effect the intention of the legislature, when we hold that the present defendants are within the protection of the 179th section, and therefore entitled to notice. Rule absolute (28). (28) See Cortis v. The Kent Water Works Company, 7 B. & C. 314, a decision to the same effect. 1838. BOYD v. THE CROYDON SIMPSON . Sir W. R. CLAYTON, Bart. Wednesday, THIS was an action of covenant brought by the plain- Lands held tiff, who claimed as assignee of five sixths of the interest under letters patent from the Duchy of Cornwall for a term determinable on the deaths of three parties named therein, were leased for 65 years if the cestui que vies should so long live, with a covenant on the part of the lessor, his executors, &c., in case of the death of those parties during the term by the indenture granted, to "apply for, and do his and their utmost endeavours to procure a renewal or renewals of such letters patent for another life or lives, so as the lessees, their executors, &c., might hold and enjoy the premises for the whole term, subject only to the rents and covenants in the indenture mentioned, and without being compelled or compellable or liable to pay any part of the fine or fines that should be paid on such renewal." Two of the lives having dropped, the grantee of the letters patent applied for a renewal. The Duchy demanded for such renewal a fine which was found by a special verdict to have been a reasonable fine, if such fine ought to be calculated on the annual value of the premises taken at rack rent-two and a half and three years' value:-Held, that this was a proper mode of valuation, and the fine not unreasonable; and that the lessor, having declined to pay such fine, had failed to perform his covenant to do his utmost endeavours to procure a renewal of the letters patent. Held also, that the above was a covenant running with the land. And that the fact of the plaintiff being assignee only of a part of the interest created by the lease, did not preclude him from suing for and recovering damages in respect of the breach of covenant. |