A.-G ፖ. FORBFS. [ *133 ] having it shut up for a certain time, in order to have it repaired : but the defendants' object in cutting away these joists is not to repair the bridge, but that it may remain entirely unrepaired, or open and inaccessible to the public, or that another body of persons, not under their jurisdiction at all, may, in order to escape the penalties of the law for leaving the bridge out of repair, be compelled to concur in constructing in a particular manner that part of the bridge which, according to the argument, is exclusively within the jurisdiction and ought to be subject to the control of the Berkshire magistrates. If these two counties have been brought into a difficulty by an act, which was a highly proper act in the year 1811, and which one *only regrets is not the course of proceeding adopted in 1836, namely, a mutual agreement as to the mode in which that work is to be carried on, no doubt it is extremely unfortunate; and the only question is, in what way these parties can exercise their respective rights. But it is the duty of the Court to take care that while these magistrates attempt to exercise their respective rights, the public shall not sustain any injury, and that a public nuisance shall not be occasioned. With respect to the question of jurisdiction, it was broadly asserted that an application to this Court to prevent a nuisance to a public road was never heard of. A little research, however, would have found many such instances. Many cases might have been produced in which the Court has interfered to prevent nuisances to public rivers and to public harbours; and the Court of Exchequer as well as this Court, acting as a court of equity, has a well established jurisdiction, upon a proceeding by way of information, to prevent nuisances to public harbours and public roads; and, in short, generally, to prevent public nuisances. In Box v. Allen (1), this Court interfered to stay the proceedings of parties whose jurisdiction is quite as high as that of the Court of Quarter Sessions over bridges, namely, the Commissioners of Sewers. Those commissioners possess a jurisdiction founded on Acts of Parliament (2), and they have a right, within the due (1) 1 Dick. 49. (2) 23 Hen. VIII. c. 5, 3 & 4 Edw. VI. c. 8 13 Eliz. c. 9, 7 Ann. c. 10, and the recent statute, 3 & 4 Will. IV. c. 22. limits of their authority, to do all necessary acts in the execution of their functions. Nevertheless, if they so execute what they conceive to be their duty, as to create or occasion a public nuisance, this Court has an undoubted right to *interpose. The same question occurred in Kerrison v. Sparrow (1), before Lord Eldon, in which his Lordship, under the circumstances of the case, considered that he ought not to interfere; but the jurisdiction of the Court was not there denied or disputed. In Attorney-General v. Johnson (2), the objection to the jurisdiction was attempted to be raised. The defendants in that case, the corporation of the city of London, were authorised by Act of Parliament to do what was necessary to be done in the exercise of their duty as conservators of the river Thames; but, in that particular instance, they had assumed to themselves a right to carry on or sanction operations, which created a nuisance to the King's subjects; and the Court accordingly interfered to prevent them from so exercising their undoubted legal powers. To say that this Court, when it interferes in such a case, is acting as a court of appeal from the Court of Quarter Sessions, is any thing but a correct representation of the fact. The jurisdiction is exercised, not for the purpose of overruling the power of others, by way of appeal from their authority, but for the purpose of executing a salutary control over all, for the protection of the public. The allegations of fact appearing on the face of this information and bill may be pure fiction; but I am to take the record as it stands, and finding that it represents a case where, if the act proposed to be done be carried into effect, a great public mischief will be occasioned, I think the obvious result of all the authorities is, that I am bound to interfere. Mr. Wakefield then submitted that the demurrer of the defendants, the surveyor and contractors, ought at all events to be allowed. The LORD CHANCELLOR (after examining the statements in the information and bill, which referred to the proceedings of the surveyor and contractors), said that in his opinion those (1) 19 Ves. 449, (2) 18 R. R. 156 (2 Wils, C. C, 87). A.-G. 0. FORBES. defendants were all so much mixed up and identified with the proceedings of the Berkshire magistrates, that they were properly made parties, and that their demurrers also ought to be over-ruled. 1836. Nov. 22, 28. Lord COTTENHAM L.C. [135] [142] ATTORNEY-GENERAL v. SMYTHIES. (2 My. & Cr. 135-144; S. C. 6 L. J. (N. S.) Ch. 35; affirming 1 Keen, 289; 5 L. J. (N. S.) Ch. 247.) A decree having directed the settlement of a scheme for the regulation of the hospital of King James in Colchester, and for the future application of its revenues, the Court, in afterwards considering the scheme, came to the conclusion that, upon the true construction of the charter of foundation, and of the laws and statutes of the hospital, it was intended, and was essential to the proper performance of his official duties, that the master should have a proper residence within the hospital, or on the lands belonging thereto; and a reference was accordingly directed for the purpose of ascertaining the best mode of providing such residence; but the Court declined to make any specific declaration that it was the duty of the master to reside, that being a matter falling within the jurisdiction of the visitor. THIS was an appeal from an order of Lord LANGDALE, whereby it was declared that according to the true construction of the charter, the master of the college or hospital of King James, in the suburbs of Colchester, ought to reside in such college or hospital, for the purpose of discharging the several duties of his office; and that it should be referred to the Master to inquire whether there was a fit residence in the college or hospital for such master; and if the Master should find that there was not, then it was declared that such residence ought to be provided, and the Master was to review his scheme with reference to this declaration. The cause is reported upon the original hearing before Sir John Leach, and upon the appeal before Lord Brougham, in 34 R. R. 192 (2 Russ. & My. 717). [The LORD CHANCELLOR upon this appeal considered it abundantly clear that the master ought to be resident, and he approved of the inquiries directed with a slight variation, but with regard to the declaration which prefaced the inquiries, his Lordship said:] This college is a corporation, with a visitor appointed by the charter, who is to inspect and visit the college, and the master and poor, and the state, order, and government of the college. To call the master into residence, if improperly absent, to hear and judge of the excuse he may make for his non-residence, are properly the duties of the visitor. [The declaration was accordingly struck out of the order appealed from.] LLOYD v. LLOYD (1). (2 My. & Cr. 192-206; S. C. 3 L. J. (N. S.) Ch. 191; 6 L. J. (N. S.) Ch. 135; 1 Jur. 69.) In marriage articles or settlements containing reciprocal covenants to settle property on the marriage the failure or default of either covenantor is not generally any excuse or defence for the non-performance of the reciprocal covenant by the other covenantor. Marriage articles recited that L., the father of the intended husband, had agreed, in case the marriage should take effect, to pay 2007., and also to settle the lands of T. in the manner, to the uses, and upon the trusts thereinafter mentioned; and that S., the father of the intended wife, who was an infant, had agreed to convey the lands of G. in the manner, at the time, to the uses, and upon the trusts thereinafter mentioned, and also to pay to the intended husband 1007. upon the marriage it was then covenanted by L. that, in case the marriage should take effect, and S. should, as soon as the intended wife came of age, settle the lands of G. to the uses thereinafter expressed, he, L., would settle the lands of T. to his own use until the marriage, and from and after the marriage, to his own use for life, with remainder upon certain trusts for the benefit of the husband and wife, and the issue of the marriage; and it was covenanted by S., that in case the marriage should take effect, and L. should perform his covenant, he, S., would settle the lands of G. to the use of himself for life, with remainder upon certain trusts for the benefit of the husband and wife, and issue of the marriage. The marriage took effect, and the wife came of age, but S. failed to settle the lands of G.: Held, nevertheless, that L. was bound to perform the covenant on his part. [THIS case turned entirely upon the construction to be placed upon the special wording of a badly-drawn covenant in marriage articles which was inconsistent with the intention of the parties as plainly expressed in other passages in the same document. The judgment of the Lord Chancellor (Lord COTTENHAM) contains the following passage of general interest :] With respect to marriage contracts there can be no resistance on the part of one, because another contracting party has failed (1) Jeston v. Key (1871) L. R. 6 Ch. 610, 40 L. J. Ch. 503, 25 L. T. 322, A.-G. v. SMYTHIES. 1837. Feb. 7, 8. Lord COTTENHAM, L.C. [192] [ 203 to perform his part of the agreement; and the obvious reason is that the parties to the contract are not the only persons having an interest in the subject, but the contract is made by them on behalf of the issue of the marriage. Although, therefore, in the case of an ordinary contract, a party who has not performed his part may not be entitled to claim the benefit of it against the other party, it is different in marriage articles, where the two contracting parties reciprocally enter into contracts both of which are made for the benefit of a third party. Unquestionably, however, even in the case of a marriage settlement, the covenants may be so framed as to be mutually dependent; and if it be clear on the face of the settlement that such was the intention, that intention must prevail. [His Lordship then held that as it was impossible for each of two covenants to be a condition precedent to the other, the intention of the parties as declared by the recital must prevail, and that the covenants must accordingly be treated as independent of each other.] 1837. Feb. 2, 3, 15. Lord SOUTHBY 2. HUTT. (2 My. & Cr. 207–219.) any title By conditions of sale it was stipulated that the vendor of an estate which was sold in lots should deliver an abstract of the title to the purchasers, and de luce a good title; but that as to a part of the estate. acquired under an inclosure, he should not be bound to show thereto prior to the award; and it was farther stipulated that the vendor should deliver up to the largest purchaser in value all the title deeds and other documents in his custody, but should not be required to produce any original deed or other documents than those in his possession and set forth in the abstract: Held, on the construction of these conditions, that they did not relieve the vendor from his liability to verify the title shown upon the abstract by producing the title deeds themselves, or, if any of them were not in his possession, by other satisfactory evidence. If a vendor intends to deprive a purchaser of the right to the production of any evidence necessary to verify the title beyond what the title deeds in his own custody will supply, he is bound to make that intention previously known to the purchaser in clear and explicit terms. A vendor who has failed to deliver his abstract of title within the time specified by the conditions of sale cannot object to the delivery of requisitions by the purchaser after the time similarly specified. THIS was a suit instituted by the vendor of an estate which, in the month of May, 1833, was sold by auction in a great |