the judges who gave their opinions to the Lords on the appeal, was something to the effect that "If it was not my learned brethren who had disputed that black was white, I should have said no intelligent person could have disputed it."

The question proposed to the judges was-"Is the operation of the 94th section of the 8 Vict., c. 18, confined to lands not situate in a town, or not built upon ?" Blackburn J. says:

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My Lords, in my opinion the operation of the 94th section of the Lands Clauses Consolidation Act is confined to land not situate in a town, or not built upon. I might have confined myself to referring your lordships to the reasons contained in the judgment delivered in the Exchequer Chamber by Mr. Justice Willes, in which I entirely concur; but I will state some additional observations that have weight with me.

"The question is entirely one as to the construction of the act. We are bound to look at the language used in the act, construing it with reference to the object with respect to which the legislature have used that language, but construing it in its ordinary grammatical sense, unless there be something in the subject-matter or the context to show that it is to be understood in some other sense, and doing all this we are to say what is the intention of the legislature expressed by that language.

"The Land Clauses Consolidation Act is one passed for the purpose of embodying in one Act the provisions usually introduced in special Acts, so that the whole or part of these clauses may be incorporated in special Acts. It was convenient to group together the clauses relating to different subjects, so that they might readily be referred to in the special Acts, and incorporated or excluded from them. For this purpose, the various clauses relating to each separate subject are collected under separate headings. One of those headings is as follows, 'And with respect to small portions of intersected land, be it enacted as follows;' under it follow two clauses, sections 93 and 94, and no more. Section 93 is, 'If any lands, not being situate in a town or built upon, shall be so cut through and divided by the works as to leave on either or both sides or one side thereof a less quantity than half a Statute Acre,' the owner may require the company to purchase it, unless the owner have other land adjoining to that so left, into which the same can be thrown, so as to be conveniently occupied therewith,' in which case the company are required to be at the expense of throwing it into the adjoining land. Section 94 is, 'If any such land shall be so cut through and divided as to leave on either side of the works a piece of land of less extent than half a Statute Acre, or of less value than the expense of making such communication as the company are compelled to make,' &c., ' and if the owner of such lands has not other lands adjoining such piece of land, and require the company to make the communication,' the company may purchase the piece of land.

"Now it is an ordinary rule, not so much of law as of the grammatical construction of the English language, that words of relation primâ facie refer to the nearest antecedent; and such' in this passage is a word of relation referring to some land or other.

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The context shows

that it cannot refer to the adjoining land which has been last mentioned. We are to say whether it refers to the lands mentioned in the beginning of section 93, which is the next antecedent, or to the 'intersected land' mentioned in the heading to these two sections, which is an antecedent not very remote, but more remote than the other. The land in the beginning of section 93 is not only the nearest in position to the words 'such land' in the beginning of section 94, but it is connected with similar words. In section 93 the language is, ' If any lands, not being situate in a town or built upon, shall be so cut through and divided by the works as to leave,' &c. In the section 94 it is, 'If any such land shall be so cut through and divided as to leave,' &c. It certainly seems to me that no one looking merely at the collocation of these words could doubt, that in the grammatical construction of those two sections the one referred to the other, and that the lands mentioned in section 94 were to be such as the lands mentioned in section 93, viz., lauds 'not being situate in a town or built upon.' I agree that we are not to construe the Act merely from the collocation of the words; but the effect of this collocation is that the 94th section is thus to be construed, unless the nature of the subject-matter or the context shows us that a different meaning was intended.

"Then it is said, that unless section 94 applies to small pieces of land in towns, there are no provisions in the Lands Clauses Act relating to such picces of land in towns at all. That is true; but I am not pressed by the argument. The legislature may have thought that a general rule could be devised applicable to the simple case of land in the country, but that they did not see a rule generally applicable to the more complex case of land in the town; and they may also have thought the value of property in towns was so great, that the expense of procuring special enactments in the Special Act would not be excessive in relation to such property. I cannot tell whether they thought thus or not, or what the reason was that induced them to make the enactment as we find it. But at least there is nothing in confining the enactment to lands in the country (which, as it seems to me, it would be if understood in its ordinary grammatical sense), absurd or repugnant to justice.

"Some of the judges have in their judgments in the court below given reasons for thinking that a different enactment would have been more expedient. They may be quite right, but it does not follow that the legislature thought the other enactment best, or intended so to enact; still less does it follow that they have expressed such an intention, and that, I apprehend, is the only legitimate subject of inquiry. I dread very much the consequences if once the judicature begins to trespass on the province of the legislature, and to pronounce not what

VOL. X. NO. XIX.

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the law is, but what it ought to be. If we do, I do not know where we are to stop. I think it much better in construing an act to follow what has been called the Golden Rule, and to declare that to be the intention of the legislature which appears to be expressed by their words understood in their ordinary sense, though with reference to the subject-matter and context, unless that is manifestly absurd or unjust, which certainly is not the case here."

Mr. Baron Channell next advised their lordships. After showing that unless you inserted, before the 94th clause, the concluding words of the heading "be it enacted," the 94th section would not be enacted at all, he asks, If you take part of the heading, why not all? and he adds :—

"I cannot but think that if the legislature had intended to limit all the enactments to lands not being in a town or built upon, that that intention would have been indicated by the use of proper and restrictivę words in the heading itself.

"The word Idem, it is said, semper proximo antecedente refertur, Co. Litt. 20 b. No meaning of this sort has been, as far as I am aware, given to the word 'such,' whilst the notion of confining the reference made by the use of that word to the particular case described in the immediate antecedent has not been followed, even where, by so confining the words, no violence would have been done to the context, nor any repugnancy have arisen; see 2nd Institute, reading on the Statute of Marlbridge, vol. i., ch. 6, s. 6, where, commenting upon the words 'per hujusmode prandem,' referring to a particular feoffment, specially described, Lord Coke says, 'by such fraud' is to be understood such a mischief or such an inconvenience; and, therefore, all other fraudulent feoffments to the same ends are within the statute, whatsoever colourable pretext they have, and so (Lord Coke continues) is this word 'such' oftentimes taken on other statutes.

"It is said that there is a rule of grammatical construction, by which the word 'such,' as a relative word, is taken to refer, if not necessarily to the next immediate antecedent, to the nearest antecedent, by reference to which, sense can be made of the context. It is necessary for the argument of the plaintiff in this case, so to limit the rule, for the next immediate antecedent to the word 'such,' in the 94th section, would be the piece of land mentioned at the conclusion of the 93rd section, viz., the piece of land left and to be thrown into adjoining land, a construction which would create a manifest repugnancy; but if there are several antecedents, and you do not limit the word of reference to the next immediate antecedent, why refer to one more than another, except so far as the sense or general context guides

you.

"I adopt the expression of Chief Baron Macdonald, on giving the opinions of the judges to this house, in the case of Thelluson v. Woodford, 1 B., and Puller's New Reports, p. 393. The Chief Baron is there speaking of a will, but the observation is, I think, equally applicable

to a statute. The Chief Baron says, that construction is to be adopted which will support the general context. The grammatical rule of referring qualifying words to the last of several antecedents, is not even supposed by grammarians themselves to apply, when the general context of a writer or speaker would be defeated by such a confined application of them. Reason and common sense revolt at the idea of overlooking the plain intent which is declared in the context, viz., that they (that is, qualifying words) should be applicable tɔ such classes as require them, and as to the other, to consider them as surplusage.

"I think that the legislature intended by the 93rd Section to give a Protection to the owner, a part of whose land might be taken for the purpose of the Act, and by the 94th section, to give a protection to the company, where the expense of making a communication would be a waste of the funds of the company, and no benefit to the landowner, and that this intent is sufficiently manifest notwithstanding a somewhat inaccurate use of the word 'such.' The company can never avail themselves of the power conferred by the 94th section, adversely to the landowner, for the power given is inoperative unless the landowner requires a communication. The matter, if any in difference, is then to be referred to the decision of the tribunal pointed out by the Act. Considering such a reading of the Act as I have pointed out just and equitable, and not inconsistent with any legal or grammatical rule of construction, I answer your lordships' question by stating that, in my humble opinion, the word 'such' in the 94th section, is 'not confined to land in a town or built upon."

· Bramwell B., whose judgments always exhibit a remarkable combination of robustness and subtlety, next took up the word :

"My lords, I am of opinion your lordships' question should be answered in the negative. I cannot help thinking the case is very plain. I cannot, except in deference to the authority of those who think otherwise, entertain a doubt on it. I crave leave to refer to a proposed judgment prepared by me (reported in 2nd Hurlston and Norman's reports), by which I abide, but to which I wish to add the following:

I beg to remind your lordships of the ordinary practice of beginning the sections of an act of parliament with the words 'Be it enacted,' or other words of enactment. I do not say such words are essential, but that they are usual. This general heading is not only in good sense, but as matter of verbal accuracy, to be considered as governing, and to be read before each section which ranges under it, as though they had been numbered 1, 2, and so on. This is manifest from an examination of the statute. If so, all the reasoning for the plaintiff about the ordinary grammatical construction, and words of relation referring to the last antecedent, is misapplied, because it is applied as though there were no such general heading.

"Further, I deny there is any inflexible rule, as suggested, that 'such' must relate to the last antecedent. The sense must be looked

at in each case. Here, not only does all convenience require the reading to be as I suggest, but there are other considerations. The general heading is, And with respect to small portions of intersected land' in the singular; in section 93, it is, of any lands' (in the plural) 'not being situate in a town, or built on'; in section 94, it is If any such land,' in the singular, referring therefore to the heading,

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Again, the construction of the plaintiff would limit the general heading thus, as Mr. Crouch acknowledged, And with respect to small portions of land, not being in a town or built on.' Why did not the framer so limit it, why did he say as he does, that he is dealing with small portions of intersected land generally, and not with some only Further, if 'such' means 'last mentioned,' then, as Mr. Justice Erle said, it does not refer to land not in a town or built on.

"I cannot, with great respect, understand the expression, 'That section 94 by analogy to the 93rd, deals with the case of land of such small value that half an acre or more of it may not be worth the expense of making a communication.' I do not understand the use of the word 'analogy;' I cannot see there is any thing analogous in the two sections, except that they both relate to intersected land, both give protection to the respective parties intended to be protected, and both give protection as far as it is needed and no further; but then that requires that the protection to the promoters should extend to land in which protection to the landowner need not extend to land in a town or built on, nor do I see why, because the promoters are not to be oppressed with the obligation to buy land in a town where there is no need for such a burthen, they should not be at liberty to do so where there is need for such a privilege, nor can I understand how the word 'small' can be supposed to mean in these sections and heading 'small in value.' Would any one say that 'small portions' in the general heading means small in value? When it is followed by the next section with the words 'a less quantity than half an acre,' that does not mean less in value than half an acre,' for that is nonsense; the next phrase is such small parcel,' and in section 94 the expressions are used close together of 'less extent' and 'less value.'

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"The grammatical and verbal construction of the statute I think clearly with the defendants, so also are the general object and intent of section 94; so also are good sense and convenience, as I now proceed to show. That mischief may arise from the plaintiff's construction is manifest, from this case. It is true it is only a question if a few hundred pounds should be wasted; but if the cutting is deep enough, and the soil such as to make it necessary the banks should slope gradually, and foundations go deep, it might be a question of thousands. Now I venture to say, that while there is reason for the defendants' construction there is none for that of the plaintiff; there is no inconvenience or hardship if the statute is construed as the defendants construe it.

"I will deal with the objections of the plaintiff as far as I understand them. There seems to be a vague notion which, if made definite and expressed in words, would run thus :-'Land in a town or built on