The price for each Volume is £1 5s., elotli, net; op £1 8s., half brown ealf, net. THE REVISED REPORTS. A EEPUBLICATION OF EEPOETS OF CASES IN THE ENGLISH COUETS OMITTING SUCH CASES and PARTS OF CASES as are CONSIDERED TO BE NO LONGER OF PRACTICAL VALUE. TABLE OF COMPARATIVE REFERENCE. OLD REPORTS, CASES FROM Adolphus & Ellis -12 vols. Anstruther— 3 vols. Arnold—- vols. Ball & Beatty— 2 vols. Barnewall & Adolph Barnewall & Aldersc Barnewall & Cresswi Beavan— Vols. 1 to 4 Bing-ham— 10 vols. . Bing-ham, N. C— 6 vo Blackstone, H,— 2 vol Blig-h— 4 vols. . Bligrh, N. S.-Vois. i to Bosanqiiet & PuUer- Broderip & Bingrham Campbell— 4 vols. . Carrington & Payne- Chitty— 2 \ ols. . Clark & Finnelly— Vo Cooper temp. Broug: Cooper, G. Cooper, Pr. Cas. Cox— 2 vols. Craig & Phillips Crompton & Jervis- Cronipton & Meeson Crompton, Meeson & •2 Vnl.s. Daniell Danson & Lloyd Do\^— I'l vols. Dow & Clark— Vols, i S Bowling-— Vols. 1 to rt Bowling & Ryland's Bowling & Ryland's Drury & Walsh— 2 vol Brury & Warren -Vol Burnford & East— 8 v East- 1-; vols. . Espinasae— •■' vols. . Forrest Gale & Bavison— Vols. 1 iinls. 5 Tamlyn 55, 57 Taunton— s vols. 21 Turner & Russell . 33,35 Tyrwhitt vmIs. 58 Tyrwhitt & Granger 47 Vesey, Jr. — I'.i v.ils. . 42 & 43 Vesey & Beames-;t V .34 West, H. L. 17 Wight wick 51 Willmore, Wollaston & Bavison ,, 58 Willmore, Wollaston & Hodges ,, 23 Wilson's Chy. ... 20 t.) 22 Wilson's Ex. Eq , 49, 55, 58 Younge 44 Younge & Collyer— 4 \ ols. ,, 38, 40 Younge & Collyer, C. C. . 25 t.i 31, 34 Younge & Jervis— s v.-ls. REVISED REPORTS. CITED AS R. R. ritic R. R. vols. 37, 39, 41, 42, 46, 49, 52, 56 gden . ,, 46 i • • ,, 36 . 15 to 18 & 20 to 83 ■Vols. 1 and 2 56, 58 vols. . ,, 31 to 34 15 & 17 i. „ 14 to 18 28 29 s. 1 to S 46, 49, 51, 52, 55, 56, 58 15 to 17 31 il. 1 . „ 42 19 to 29 43, 46, 50 ,, 29, to 31. 33 34, 35, 38 51 43, 45, 48 „ 36. 39, 41 38 to 43 44, 45 3&4 „ 48, 50, 52, 54 15 to 27 55, 57 25 to 29 32,34 16 27 9 4113 44, 50, 54 „ 56, 58 >, 38, 40, 42, 47 & 51, 54, 56 24 & 25 7&8 18 to 20 & 23 1S&19 31 9 to 21 23 J: 24 35, 37 to 40 46 1 to 13 12 & 13 51 12 52 52 18 18 34 41, 47 & 61, 54 57 30 to 32 June, J 903. liAW BOOKS PUBLISHED BY SWEET & MAXWELL, Limited, 8, CHANCERY LANE, LONDON. ENCYCLOPiEDIA OF THE LAWS OF ENGLAND, by the most eminent legal authorities. In 13 Vols. Price £13 net in cloth, or £15 5s. net in half calf. Full Prospectus and Names of Contributors 07i Application. Admiralty. — Williams and Bruce's Admiralty Practice. 3rd Edit. By C. F. Jemmett and G. G. Phillimore. 32s. 1902. Ag'ency. — A Digest of the Law of Ac'ency. By W. Bowstead. 2nd Ed. 16s. 1898. American Law. — Bouvier's Encyclo- paedic Diftionary of American and English Law. New Edition. 2 vols. 21. 10.5. net. 1898. J nnual Practice.~By T. Snow, Chas. Bui:n"ey, and F. A. Stringer. 25s. net. Arbitration and Award. — Russell's (F. ) Treatise on Power and Duty of an Arbi- trator ; with Forms and Statutes. 8th Edit. 30s. 1900. Attachment. — Attachment of Debts, Receivers by way of Equitable Execution, and Charging Orders on Stock and Shares. By M. Cababe. 3rd Ed. 6s. 1900. Auctions. — Bateman's Auctioneer's Guide, containing a Practical Treatise on the Law of Auctions; withForm.s and Precedents. 7th Ed. ]2s. 1894. Bailments. — Wyatt Paine on Bail- ments, including Carriers, Pledges, Hire- Purchase, Liens, &c. 25s. 1901. Bankrupt Law. — Williams' Law and Practice in Bankruptcy. 7th Ed. By E. ^Y. Hansell. Iloyal 8vo. 30s. 1898. Bills of Costs. — Johnson's Bills of Costs in the High Court of Justice and Court of Ajipeal, in the House of I^ords and Privy Council. With Fees, Orders, Rules, Decisions, &c., &c. Bv H. M. JoHxVSON. 2nd Edit. 35s. " 1901. Bills of Exchang*e. — Byles on Bills of Exchange. 16th Ed. By M. B. Byles and W. H. B. Byles. 25s. 1899. Law relating to Cheques. By E. R. Waisox. 2nd Edit. 2s. 6d net. 1902. Building- Contracts.— Conditions of Contract. By F. W. Macey. 15s.net. 1902. Building" Societies. — Davis's (H.F.A.) Law of Building and P'reehold Land Societies in England, Scotland and Leiand, &c. 4th Edit. By J. E. Walker. 2\s. 1896. Burials.— Baker's Law of Burials. The Law relating to Burials ; with Notes, Forms, and Practical Instructions. 6th Ed. By E. Lewls Thomas, Barrister-at-Law. 25s. 190L Capital and Income.— Conci.se Trea- tise on Capital and Income as between Life Tenant and Remainderman. By W. H. GovEK. 7s. 6d. 1901. Children. — The Law relating to Chil- dren and Young Persons. By J. B. Mat- thews. 10s. 6d. 1894. ChOSeS in Action.— The Law relating to Choses in Action. By W. R. Warken\ 16s. 1899. Common Law. — Broom's Commen- taries on the Common Law. 9th Edit. By W. F. A. Archibald and H. A. Colefax, 25s. 1896. Companies. — Lindley, A Treatise on the Law and Practice of Joint-Stock and other Companies. By Lord Lindley. 6th Edit. By his honour Judge Lindley. 2 vols. 3Z. 10s. 1902. Conflict of Laws.— A Digest of the Law of England with reference to the Conflict of Laws. By A. V. Dicey, q.c, b.c.l. 30s. 1896. Contracts. — Chitty's (J., jun.) Treatise on the Law of Contracts. 13th Ed. By J. M. Lely. 30s. 1896. The Specific Performance of Contracts. By W. B. Rawlins, k.c. ns. net. 1899. Elements of the Law of Contract. By A. T. Carter. 7s. 6d. 1902. Conveyancing". — Bythewood and Jar- man's Precedents in Conveyancing. 4th Ed. By L. G. G. Bobbins. With a Supplemental volume bringing each volume down to 1893. 8 vols. lUditced to 51. net. 1884-93. Davidson's Concise Precedents in Conveyanc- ing. 17th Ed. ByM. G.Davidson. 21s. 1899. Introduction to Conveyancing. By Sir H.W, Elphinstone. 5th Ed. 14s. 1900. Key & Elphin-stone's Precedents and Forms in Conveyancing. Thoroughly revised, with large additions both to the Precedents and Notes. 7th Ed. By Sir H. Elphinstone. 2 vols. Bl. 10s. 1902. Student's Precedents in. By Jame.s W. Clark, m.a. 2nd Edit. 5s. 1896. Coroners.— Jervis (Sir John) Practical Treatise on the Office and Duties of Coroners. With an Appendix of Forms and Precedents. 6th Edit. By Rudolph E. Melsheimer. 10s. 6d. 1898. A CODE LAW OF COMPENSATION UXDEK THE LANDS CLAUSES ACTS, AND OTHER STATUTES RELATING TO THE COMPULSOEY PURCHASE. OR INJURIOUS AFFECTING OF LAND TOGETHER MlitI; an ^pp^niiii', COXTAIKIKG FOKMS AND PEECEDENTS ; THE AEBITEATION ACT, lb«'J; PAET OF THE SETTLED LAND ACTS, 1882, 1887, AND 1890 ; OEDEES 52, 53 AND G4 OF THE SUPEEME COUET EULES ; CEOWN OFFICE EULES FOR MANDAMUS ; SPECIMENS OF VALUA- TIONS MADE FOE THE PUEPOSE OF COMPENSATION; AND VALUATION TABLES. BY SYLVAIN MAYER, B.A. (Lo^'D.), Ph.D., BARRISTER-AT-LAW {Of the Middle TeoviiJe, Gray's Inn. and lite Noitlurn Circv.it), AUTHOR OF "a code OF THE LAW OF RATING," "THE LAW OF AGEICULTLKAL HOLDINGS," "THE FRENCH CODE OF COMMERCE," ETC. " I'll give thrice so much land to any ircll-deserving friend; But in the way of bargain, marlc ye me, I'll cavil on the ninth part of a hair." — Shakespeare. LONDON : SWEET AND MAXWELL, Limited, 3, Chancery Lane, W.C. WATERLOAV AND SONS, Limited, London Wall, E.G. 1903. \ \qc:s ,„.i,«iBV, »o»5w, & CO. LB., rairo.,, LOKDOK A^D TONBBIDGE. ^ h "? ^ Ql/0 THE EIGHT HOXOUEABLE EICHAPtTJ EYERAED, BAEOX ALVEESTOXE, G.C.M.G., 'tort (Cljicf Justice of CBnglanb, THIS WORK IS BY PERMISSION RESPECTFULLY INSCRIBED. PREFACE. The present work is offered to the legal profession and to those engaged in Valuing Land for the purpose of Com- pensation as a practical method of dealing with so vast a subject as the Law and Practice of Compensation for land taken or injuriously affected. The statutes dealt with include the Lands Clauses Con- solidation Act, 1845, and the amending Acts ; the Railway Clauses Consolidation Act, 1845, and amending Acts; the Waterworks Clauses Act, 1847 ; the Public Health Acts 1875 and 1883; the Local Government Acts, 1888 and 1894; the Metropolis Management Acts, 1855 and 1862 ; the Metropolitan Paving (Michael Angelo Taylor's) Act, 1817 ; the Housing of the "Working Classes Act, 1890, and many others, up to and including the Metropolis Water Act, 1902. Under each section of each Act the decisions given thereunder are arranged in the form of a code. In the Appendix will be found a set of Forms and Pre- cedents ; the Arbitration Act, 1889; portions of the Settled Land Acts, 1882, 1887, and 1890; the Orders and Eules for enforcing awards, and the lodgment of funds in Court ; the Crown Ofhce Rules for Mandamus ; and the Report of a Select Committee of the House of Lords on Betterment. To further add to the utility of the work, I have given some Specimens of Valuations made for the purpose of assessing compensation and the Valuation Tables in con- nection therewith. These valuations, taken in conjunction with the principles discussed at lengtli in the text, will, it is hoped, make the law reasonably clear. vi Preface. Every care has been taken in collating the various cases and a complete set of references to each case is given. I have bestowed great care upon the Index with a view to making it as exhaustive as possible. My thanks are due to Mr. A. C. McBarnet, of the Inner Temple, for his assistance in preparing the notes to the Arbitration Act, 1889 ; and to Mr. J. S. Henderson, of the Middle Temple, for like assistance in connection with the Settled Land Acts. While a work of this size and detail may contain short- comings, it is ofiered to those who, in their profession or business, have to deal either with the law or practice of Compensation, in the hope that it may throw some light upon a subject, the intricacies and refinements of which are rarely equalled, and certainly not surpassed by any branch of our law. SYLVAIN MAYEK. 1, Garden Court, Temple, E.G., Jlay, 1903. CONTEXTS. PAGE PEEFACE V TABLE OF CASES xiii EEEATA AXD ADDENDA Iviii PART I. LANDS CLAUSES ACTS. THE LANDS CLAUSES CONSOLIDATION ACT, 1845, (8 & 9 Yict. c. is) 3—3-16 Section 1. Application of Act 3 — 6 2 — 4. Interpretation, Citation, &c 6 — 14 5. Form in which. Act may be Incorporated with other Acts 14—18 6—15. Purchase of Lands by Agreement . . . IS — 41 16 — 68. Purchase and Taking of Lands otherwise than by Agreement 41 — 190 69 — 80. Purchase-money or Compensation coming to Parties having Limited Interests, or Prevented from Treat- ing, or not making Title 190—247 81 — 83. Conveyances of Land 247 — 252 84-92. Entry upon Lands by the Promoters of the Under- taking ISedivn 92 has no connection with the preceding sections of this group. It deals ivith counter-notice hy landowner^ ....... 252 281 . 281—284 . 281—289 . 289—296 . 296—302 93, 94. 95- -98. 99- -107. 108- -114. 115- -118. 119- -122. 123. 124- -126. 127- -132. Small Portions of Intersected Laud Copyhold Lands .... Common or Waste Lands Lands subject to Mortgage . Lands Charged with any Eent-service, Eent-charge, or Chief or other Eeut, or other Payment or Incum- brance not hereinbefore provided for . . 302 — 304 Lands subject to Leases 304 — 311 Limit of Time for Cominilsory Purchase . . 311—313 Interests in Lands which have by mistake been omitted to be Pui-chased 313—316 Lands Acquired by the Promoters of the Undertaking under the Provisions of this or the Special Act, or any Act incorporated therewith, but which shall not be required for the purposes thereof . . 316—332 133. Land-tax and Poor-rate to be made good . . 332—338 134. Service of Notices upon Company . . . 338—339 135. Tender of Amends 339 viii Coil t ('lit s. PAGE THE LANDS CLAUSES CONSOLIDATION ACT, 1845, (8 & 9 Yict. c. 18) — cuiitiiiut-d. 136—149. Recovery of Forfeitures, Penalties, and Costs . 339—344 150, 151. Provision to be made for affording access to the Special Act by all Parties Interested .... 344—345 Schedules 345—346 LANDS CLAUSES ACT, 1860 (23 & 24 Vict. c. 106) . . 347—350 LANDS CLAUSES ACT, 1869 (32 & 33 Yict. c. 18) . . 350—351 LANDS CLAUSES (UMPIRE) ACT, 1883 (46 Yict. c. 15) . . 352 LANDS CLAUSES (TAXATION OF COSTS) ACT, 1895 (58 Yict. c. 11) 352—354 RAILWAYS CLAUSES ACTS. RAILWAYS CLAUSES CONSOLIDATION ACT, 1845 (8 et 9 Yict. c 20) 355—427 ABANDONMENT OF RAILWAYS ACT, 1850 (13 & 14 Yict. c. s:j) 428—433 RAILWAYS CLAUSES ACT, 1863 (26 & 27 Yict. c. 92) . 434—438 RAILWAYS CONSTRUCTION FACILITIES ACT, 1864 (27 & 2s Vict. c. 121) 439—442 RAILWAY COMPANIES ACT, 1867 (30 & 31 Yict. c. 127) . 443—444 REGULATION OF RAILWAYS ACT, 1868 (31 & 32 Yict. c. 119) 445—447 WATERWORKS AND GASWORKS ACTS. WATERWORKS CLAUSES ACT, 1847 (10 & 11 Yict. c. 17) 448—462 GAS AND WATER FACILITIES ACT, 1870 (33 & 34 Yict. c. 70) 463 GASWORKS CLAUSES ACT, 1871 (34 & So Yict. c. 41) . 464-466 LOCAL GOVERNMENT ACTS. METROPOLITAN PAVING ACT, 1817 (57 Geo. IIL c. xxix.) .......... 467 — 484 METROPOLIS MANAGEMENT ACT, 1855 (18 & 19 Yict. r. 120 485—494 METROPOLIS MANAGEMENT ACT, 1862 (25 & 26 Yict. r. 102; 495—497 METROPOLIS MANAGEMENT THAMES RIVER PREVEN- TION OF FLOODS; ACT, 1879 (42 .^ 43 Yict. c. • xcviii.) 498 — 505 LOCAL GOVERNMENT ACT, 1888 (51 & 52 Yict. c. 41) . . 506 LOCAL GOVERNMENT ACT, 1894 {od & 57 Yict. c. 73) . 507—512 I'UBLIC HEALTH ACTS. PUBLIC HEALTH ACT, 1875 (3S .V; 39 Yict. c. 55) . . 513—525 PUBLIC HEALTH ACT AMENDMENT ACT, 1883 (46 & 47 \ irt. c. 37j 526—529 ALLOTMENTS ACT, 1887 (50 & 51 Yict. c. 48) . 530—534 ( '(intents. ix MISCELLANEOUS ACTS. PAGE MARKETS AND FAIRS CLAUSES ACT, 1847 (10 & 11 Vict. c. 14) .......... .j">.') — j.">7 HARBOURS, DOCKS, AND PIERS CLAUSES ACT, 1847 (10 & 11 Viet. c. 27) o;58— 542 TOWNS IMPROVEMENT CLAUSES ACT, 1847 (10 & 11 Vict. c. 34) .......... o-i'-i — o45 CEMETERIES CLAUSES ACT, 1847 (10 & U Vict. c. (i-5) . o4(3— -549 INCLOSURE ACT, 1852 (15 & 1(3 Vict. c. 79) .... 5,50— ool INCLOSURE ACT, 1854 (17 & 18 Vict. c. 97) .... 552—554 COMMONABLE RIGHTS COMPENSATION ACT, 1882 (45 & 4G Vict. c. 15) . . . . . . . . . 009 — 558 ELEMENTARY EDUCATION ACT, 1870 (33 & 34 Vict. c. 75) .......... 559 — 564. TITHE ACT, 1878 (41 & 42 Vict. c. 42) 5G5— 566 POST OFFICE (LAND) ACT, 1881 (44 & 45 Vict. c. 20) . . 567—569 METROPOLIS OPEN SPACES ACT, 1881 (44 & 45 Vict. c. 34) . 570 ELECTRIC LIGHTING ACT, 1882 (45 &- 46 Vict. c. 56) . 571—574 HOUSING OF THE WORKING CLASSES ACT, 1890 (53 & 54 Vict. c. 70) ......... 575 — 613 PARLIAMENTARY DEPOSITS AND BONDS ACT, 1892 (55 e^- 56 Vict. c. 27) 614—616 MILITARY LANDS ACT, 1892 (oo & 56 Vict. c. 43) . . 617—624 MILITARY LANDS ACT, 1900 (63 & 64 Vict. c. d(i) . 625—627 MERCHANT SHIPPING ACT, 1894 (57 & 58 Vict. c. 60) . 628 LIGHT RAILWAYS ACT, 1896 (59 & 60 Vict. c. 4S) . ' . 629—630 METROPOLIS WATER ACT, 1902 (2 Edw. VII. c. 41) . 631—636 PART II. APPENIJIX. A. PRECEDENTS— 1. Notice to Treat ......... 640 2. Particulars of Claim . . . . . . . . 642 3. Notice to Treat for an Easement ...... 643 4. Notice to Treat under Metroi)olitan Paving Act, 1817 (Michael Angelo Taylor's Act) 644 5. Particulars of Claim under Metropolitan Paving Act, LSI 7 . 646 6. Agreement between Promoters and Landowner for the Purchase of Lands 647 7. Nomination of Two Surveyors under Section 9 of tlie Lands Clauses Con.solidatiou Act, 1845 648 8. Notice of Application to Justices to Ai)point a Surveyor . 648 9. Appointment of Third Surveyor by Justices .... 649 10. Certificate of Two Justices that Capital has been Subscribed . 649 11. Counter-notice by an Owner under Section 92 of the Lands Clauses Consolidation Act, 1845 649 12. Withdrawal of Notice to Treat by Pronioters .... 650 13. Assessment of Comi^ensation by Two Justices . . . 650 14. Notice of Desire to have Compensation Assessed by an Arbi- trator under Section 23 of the Lands Clauses Consolidation Act, 1845 . . 651 X Contents. A. TU'EC'ED'ENTS— continued. TAGS 15. Demand for Arbitration under Section 68 of the Lands Clauses Consolidation Act, 1845, where Lands have been Injuriously AfPected 652 16. Appointment of Arbitrator by the Claimant .... 652 17. Notice by Claimant of Appointment of Arbitrator, and Eequest to Promoters to Appoint an Arbitrator .... 653 18. Appointment of Arbitrator by Promoters .... 653 19. Notice by Promoters of Appointment of an Arbitrator and Eequest to Landowner to Appoint an Arbitrator . . 654 20. Ajipointment of a Single Arbitrator by Agreement . . 654 21. Appointment of an Arbitrator to Act for Both Parties . . 655 22. Appointment of an Arbitrator under Section 64 of the Lands Clauses Consolidation Act, 1845, by a Claimant who is dissatisfied with the Valuation of a Surveyor under Section 58 ......... . 656 23. Appointment of Umpire by Arbitrators ..... 656 24. Appointment of L^mpire by Board of Trade .... 657 25. Enlargement of Time for making Award by Arbitrators . 657 26. Notice by Arbitrators of Pailure to Agree .... 658 27. Award bj^ Two Arbitrators ....... 658 28. Award by an Umpire . 659 29. Award in the Form of a Special Case ..... 6G(> 30. Notice desiring a Jury where Lands have been Injuriously Affected . . " '.661 31. Notice of Intention to Summon a Jury and of Offer of Com- pensation .......... 661 32. "Warrant to Sheriff to Summon Jury to determine the Value of Lands taken . . . " 662 33. Notice of Desire for Special Jury ...... 663 34. Notice from Sheriff of Time and Place for Nominating and Striking Special Jury ........ 664 35. Notice to Attend for Pveducing a Special Jiiry . . . 664 36. Notice of Time and l*lace of Inquiry to ])e given by Promoters 664 37. Verdict and Judgment ........ 665 38. Deed Poll in Default of Conveyance ..... 666 39. Nomination of a Surveyor by Two Justices under Section 59 . 667 40. Api)ointment of a Surveyor by Two Justices under Section 85 667 41. Notice of Intention to Apjilj' to B(iard of Trade to Appoint Surveyor under Section 3(5 of the Railway Companies Act, lS(i7 . . .668 42. Appointment of Surveyor by the Board of Trade uiuler Section 3(5 of the Railway Companies Act, 1867 . . 669 43. Bond entered into with Siu-eties under Section 85 . . . 670 44. Declaration of Impartialitj' by Surveyor 671 45. Valuation by a Surveyor ....... 671 4(5. Declaration of Con-ectness of Valuation by a Surveyor . . 672 47. Notice to Promoters to Apportion Rent ..... 672 48. Summons to Ap))orti(m Rent 672 49. Ajiportionmont of Rent by Two Justices .... 673 50. Noticf! to a I'crson having no greater Interest in Lands than as Tenant for a Year or from Year to Year . . . 674 51. Summons to Appear before Two Justices for Assessment c)f Compensation payable to a Yearly Tenant .... 674 52. Notice to I'rodiice Ijeasc under Section 1 22 . . . . 675 Co)it('iits. xi A. PRECEDENTS— '"/(i/////^*/. PAGE 53. Notice of Trial and to Produce ...... 675 54. Notice to Admit ......... 676 55. Offer of Right of Pre-emption of Superfluous Ijauds . . 677 B. THE ARBITRATION ACT, 1889 (.52 & o.i Vict. c. 49) . 678—698 C. THE SETTLED LAND ACT, 1882 (45 & 46 Vict. c. 38), ss. 21—30, 32, 36 699—710 THE SETTLED LAND ACT, 1887 (30 & 51 Met. c. 30), ss. 1, 2 710-711 THE SETTLED LAND ACT, 1890 {.y.j & 54 Vict. c. 69), ss. 13—15 711—714 D. RULES OF SUPREME COURT FOR MOTIONS AND OTHER APPLICATIONS ^Order 52, Eules 1, 2, 4, 5, 6, 7 and 18. and Order (i4, Kulrs 14 and 14a) . . . 715—716 E. SUPREME COURT FUNDS RULES AS TO LODGMENT OF FUNDS IN COURT 717—719 F. TITLES TO ORIGINATING SUMMONSES AND PETI- TIONS UNDER THE LANDS CLAUSES CONSOLI- DATION ACTS, 1845, 1860 and 1869 . . . 720 G. CROWN OFFICE RULES FOR MANDAMUS AND ORDER 53 OF THE RULES OF THE SUPREME COURT 721 H. SPECIMENS OF VALUATIONS MADE FOR THE PUR- POSE OF ASSESSING COMPENSATION— 1. Valuation of Trade Premises held on a liOng- Lease . . 726 2. 'N'aluation of Trade Premises held on a Short Lease . . 726 3. Valuation of Lessee's Interest in Land upon which he was ahout to Erect Shojis and Houses ..... 727 4. Valuation of Premises which have Depreciated in Valu ■ . 727 5. Valuation of Freehold Land on Banks of a Eiver, but for which thei'e was no Demand . . . . . .728 6. Valuation of Freehold Land taken out of an Estate with Injurious Affection to Remainder ..... 728 7. Valuation of Freehold Land as Clear Site with an Alternative Valuation on basis of Owner Building Shops upon it . . 728 8. Valuation of Agricultural Land taken for a Railway with Injurious Affection to Adjoining Land .... 729 9. Valuation of Freehold Houses let to Weekly Tenants . . 729 10. Valuation of Business Premises cai-ried on in Three Houses held under Leases for Different Terms . . . .730 IL Valuation of Premises where a well-known Trade was carried on . . . . . . . . . .731 12. Valuation of a Pawnbroker's Business where Premises were Required for a Street Improvement . . . . .731 13. Valuation of a Theatre ........ 732 14. Valuation of Premises used partly for Business ami partly for Residential I'urposes . . . . . . . .732 15. Valuation of a Freehold Wharf held by l-^xecutors into whose Possession it would pass at the Death of the Tenant for Life 733 16. Valuation of Front Portion of a Proposed Building taken under the Metropolitan Paving Act, 1817 . . . .734 xii Contents. H. SPECIMENS OF VALUATION, &c.—a,ntinncd. PAGE 17. Yahiation similar to No. 16 ....... 735 is. Valuation of Land taken by a Gas and Water Company witli Consequential Damage to the Eeniainder of the Estate . 735 19. Valuation of Water Eights taken hj a Corporation from a Landowner .......... 736 '20. Valuation of a Tied Public-house 737 21. Valuation of a Public-house (Free Lease) .... 738 22. Valuation of a Brewer's Leasehold Interest .... 739 23. Valuation of a Public-house where Mortgagees are in Possession .......... 740 24. Valuation of Premises taken for a Street Improvement with an Allowance for Betterment ...... 740 I. VALUATION TABLES— 1. For the I'urchasiug of Leases, Estates, or Annuities, at 2^, 2|, 3i and 4^ per cent. Interest ...... 743 2. For the Purchasing of Leases, &c., at 3, 4, 5, 6. 7, S, 9 and 10 per cent. ......... 744 3. Showing the Present Value of the Reversion of a Perpetuity after any given Term not exceeding 60 years . . . 745 4. Showing the Present Value of One Pound payable at the end of any luimber of Years, at 3, 4 and 5 per cent. Interest . 747 0. Present Valire of a Lease, Estate, or Annuity for a given number of Years, to Pay the Purchaser 5 per cent, on his Capital, Ee-investing the Surplus at 3, 3^, 4, or 5 per cent., to Eeproduce his Capital . 749 6. The same as the foregoing to Pay the Purchaser 6 per cent, on his Capital 749 7. The same as the foregoing to Pay the Purchaser 7 per cent. on his Capital ToO 8. Present Value of One Pound payable at the 1 )eatli of a Person of a given Age, at 3, 4 and 5 per cent. .... 751 9. Showing the Expectation of liife, or the Time a I'erson of a given Age may expect to livi' ...... 751 K. REPORT OF SELECT COMMITTEE OF HOUSE OF LORDS ON BETTERMENT, WITH SPECIMENS OF BETTERMENT CLAUSES 752 INDEX 763 TABLE OF CASES. A. PAGE Aberdare Railway Company, In re (1860), 8 W. R. 603 . . . 261 Abergavenny (Earl op, -E'A-^rfr^3(1856j, 4 W. R. 315 . . . .192 Abraham v. Great Niatheni Railway Company (1851), IG Q. B. 586 • 20 L. J. Q. B. 322 ; 15 Jiir. 855 ........ .372 Abraliams v. Corporation of London (1868), L. R. 6 E^. 625 ; 37 L. J. Ch. 732 ; 18 L. T. 811 . 64, 114 119 Acton V. Blundell (1844), 12 M. & W. 324 ; 13 L. J. Ex. 289 . . 454 Adams v. Cattley [1892], 66 L. T. 687 ; 40 W. R. 570 . . . .686 V. London and Blackwall Railway Companv (1850i, 19 L J Ch 557 ; 2 M. & G. 118 ; 2 H. & Tw. 285 ; 14 Jur." 679 . . . I. 55, 258 Ad,'-Gardner, In re (1884), 25"Cli. 1). 60 ; 53 L. J. Ch. 347; 49 L T. 804 ; 32 \\. R. 356 2S8 Aldi.s V. London Corporation [1899], 2 Ch. 169 ; 68 L. J. Ch 576 • 80 L. T. 683 ; 47 W. R. 514 ; 63 J. P. 376 ! 469 Aldred's Estate, In re (1882), 21 Ch. D. 228 ; 51 L. J. Cli 94"^ • 46 L. T. 379 ; 30 W. R. 77 I95 Alexander v. Crystal Palace Railway Company (1862\ 30 Beay 556 • 31 L. J. Ch. 500 ; 8 Jur. X. S. 833 . . . '. . 271 274 Allen, ^ic^Mr^e (1881), 7 L. R. Ir. 124 ' 202 Allhusen v. Ealin^; and South Harrow Railway Company (1898) 78 L. T. 396 ; 46 W. R. 483 . . . . ' . . ' . . .274 Allwood V. Merrybent and Darlington Railway Company (1886) 33 Ch. D. 571 ; 55 L. J. Ch. 743 ; 55 L. T. 835 ;' 35 W. R. 180 . ' .263 Alston'.s Estate, Re (1857), 5 W. R. 189 ; 28 L. T. (O. S.) 337 . 224, 227 Andensliaw's School, In re (1863) 1 N. R. 255 .... 240 241 Anderson v. Wallace (1835), 3 CI. & F. 26 ' "92 Andrewes r. Tyrrell (1885), 29 Sol. J. 622 200 Arden, In re [1894], 7(J L. T. 506 238, 709 Arden's Estates, //; /-; (1875), L. R. 10 Ch. App. 445 ; 24 W. R. 190 . ' 21() Armitage v. Askham (1855), 1 Jur. N. S. 227 . . . . \ 233 Armstrong v. Waterford and Limerick I'ailway Company (1846) 10 Ir. Eq. 60 252, 269, 270 Arnold v. Mayor of Gravesend (1856), 25 L. J. Ch. 776 ; 2 K. & J. 574 41 Ashford v. London, Chatham, and Dover Railway Company (1866) 14 L. T. 787 \ : 261 Ashton Vale Iron Companv v. Bristol (Mayor of) [1901], 1 Ch 591 • 70 L. J. Cii. 230 ; 83 L. T. 694 ; 49 W. R. 295 ; 17 T. L. R. 183 ' 70 280 Askew V. Woodhead (1880), 14 Ch. D. 27 ; 49 L. J. Ch 370 • 42 L T ' 567 ; 28 W. R. 874 ; 44 J. P. 570 217,242 Astlev r. Manchester, Sheffiehl, and Lincolnshire Railway Company' (1858), 2 De G. & J. 453 ; 27 L. J. Ch. 478 ; 4 Jur. N. S." 567 . 326 329 Athlone Rifle Range, I/i ?-e [1902], 1 L R. 433 150 Athorpe, £'x 2xn-^e (1839). 3 Y. & C. 396 \ 240 Atkins's Estate, In re (1875), 1 V\\. D. 82 ; 45 L. J. Ch. 117 ; 24 W. R. 39 209 Attorney-General v. Barry Dock and Railway Company (1887\ 35 Ch. D. 573 ; 56 L. J. Ch. 1018 ; 56 L. T. 559 ; 35 \Y. R. 830 • 51 J. P. 644 391 V. Dorset Central Railway Company (1861), 3 L. T. 608 . . 372 V. Drapers' Company (1869), L. R."9 E(|. 69 ; 21 L. T. 651 . ! 244 xiv Tabic of Cases. PAGE Attorney-General v. Ely, Ilacldenhani, and Sutton Eailway Company (1869), L. K. 4 Ch. A].p. 194 ; 38 L. J. Ch. 258 . . . 371 V. Funiess llaihvay Company (1878), 47 L. J. Cli. 776; 38 L. T. 555 ; 2G W. R. 650 373, 389 V. Gaslight and Coke Company (1877), 7 Ch. D. 217 ; 47 L. J. Ch. 534 ; 37 L. T. 746 ; 26 W. R. 125 173, 573 r. Great Eastern Railway Company (1872), L. R. 7 Ch. App. 475 ; 41 L. J. Ch. 505 ; 26 L. T. 749 ; 20 W. R. 599 .. . 46 ,: Great Northern Railway Company (1850), 4 De G. & S. 75 ; 14 Jur. 684 46,392 /■. Great Western Railway Company (1866), 14 W. R. 726 . . 368 Hanwell Urban District Council [1900], 2 Cli. 377 ; 69 L. J. Ch. 626 ; 82 L. T. 778 ; 48 W. R. 690 .... 323, 513 V Leeds Corporation (1870), L. R. 5 Ch. App. 583 ; 39 L. J. Ch. 711 ;■ 1 W. R. 19 545 V London and NorthWestern Railway Company [1900], 1 Q. B. 78 ; 69 L. J. Q. B. 26 ; 81 L. T. 649 ; 63 J. P. 772 . . . 388 v. Metropolitan Railway Company [1894], 1 Q. B. 384 ; 69 L. T. 811 ; 42 W. R. 381 ; 9 R. 598; 58 J. P. 342 . . , .168 r. Meyrick [1893], A. C. 1 ; 62 L. J. Ch. 313 ; 68 L. T. 174 ; 1 R. 54 ; 57 J. P. 212 290 r Rochester Corporation (1867), Ki L. T. 408 ; 15 W. R. 765 236, 238 St. John's Hospital, Bath [1893], 3 Ch. 151 ; 62 L. J. Ch. 707 ; 69 L. T. 178 ; 42 W. R. 172 ; 3 R. 661 . . . . 209, 229 c. Sittinghourne and Sheerness Railway Company (1866), L. R. 1 E(i. 636 ; 14 L. T. 92 ; 14 W. R. 414 263 r. Sunderland Corporation (1858), 1 Giif. 363 ; 29 L. J. Ch. 282 ; 1 L. T. 155 ; 6 Jur. N. S. 46 514 r Teddington Urban Council [1898], 1 Ch. 66 ; 67 L. J. Ch. 23 ; 77 L. T. 426 ; 46 W. R. 88 ; 61 .i. P. 825 .. . 323, 514 i: Tewkesbury and Malvern Railway Company (1863), 32 L. J. Ch. 482 ; 1 De G. J. & S. 423 ; 8 L. T. 682 .... 365, 366 r. Tomliue (1877), 5 Ch. D. 750 ; 46 L. J. Cli. 454 ; 36 L. T. 684 ; 25 \V. R. 802 413 r. AVidues Railway Company (1874), 30 L. T. 449 ; 22 W. R. 607 391 Attorney-General of Straits Settlements c. Wemys (1888), 13 A. C. 192 ; 57 L. J. P. C. 62 ; 58 L. T. 358 160 Aubrey's Estate, In re (1853), 1 W. R. 464 ; 17 Jur. 874 .. . 214 Austin V. Aiuhurst (1878), 7 Ch. D. 689 ; 47 L. J. Ch. 467 ; 38 L. T. 217 ; 26 W. R. 312 294 Autothreptic Steam Boiler Conqiany and Townsend, In re (1888), 21 g. B. D. 182 ; 57 L. J. Q. B. 488 ; 59 L. T. 632 ; 37 W. R. 15 . . 684 AylesRu-d's (Earl ol) Estates, In rr (1886), 32 Ch. 1). 162 ; 55 L. J. Ch. 523 ; 54 L. T. 414; 34 W. R. 410 710 Ayr Harbour Trustees v. Oswald (1883), 8 A. C. 623 ... 54, 152 B. Back, Kx parte (1828), 2 Y. & J. (Ex.) 386 205 i5a ,r (1866), 14 !.. T. IV.l ; 14 \V. P. 471 . . 238 Bailev r. Badiiam (1885), 3(» Ch. D. 81 ; 54 L. .1. Ch. 1067 ; 53 L. T. 13 ; 33 W. R. 770 163 V. De Crespignv (1869), L. K. 4 (,). B. 180 ; 38 L. J. Q. B. 98 ; 19 L. T. 681 ; 'l7 W. H. 494 33 Ex vartc (1852), Bail Court Cases, 66 66, 1 15 r. Isle of Thanet Ligiit Railways (.'oiupanv [1900], 1 (»>. B. 722 ; 69 L. J. g. B. 442 ; 82 L. T. 713 : 48 W. P. 589 143 Baker v. Metropolitan Railway Company (1863), 31 iuav. 5<>4 ; 32 L. J. Ch. 7 ; 7 L. T. 494 ; 11 W. R. 18 ; 9 Jur. X. S. 41 . 23, 36, 106 Tahle of C^ .... 238 Bra.sher's Trust, In re (1858), 6 W. R. 406 «:.PI) lan^ . . . .219 Braund r. Earl of Devon (1868), L. R. 'j Ch. ^ i>p. 800 . . . . 206 Bray r. South-Eastern Railway Company ('18'i^, 19 L. J. Q. B. 11 ; 7 D. & L. 307 .... ■ 132 L.C. xviii Tahle of Cases. PAGE Brave, Ex parte (1863), 32 L. J. Cli. 432 ; 11 W. R. 333 ; 9 Jur. N. S. 454 229 Bredicot, Ex parte Rector of (1848). 17 L. J. Ch. 414 ; 5 R. G. 209 . 211 Brent's Trusts, In. re (1860), 8 W. R. 270 205 lirewer, In re (1875), 1 Ch. D. 409 ; 34 L. T. 466 ; 24 W. R. 465 . 10, 34, 303 Breynton v. Lnnduu and Nortli-Westeru Railway Company (1846), 10 Beav. 238 ; 4 Rail. Cas. 553 ; 11 Jur. 28 . " 46 Bridgend Gas and Water Conipauv r. l^uuraven (1885), 31 Ch. D. 219 ; 55"l. J. Ch. 91 ; 53 L. T. 714 ; 34 W. R. 119 ... . 36, 106 Bridges v. Wilts, &c.. Railway Company (1847), 16 L. J. Ch. 335 ; 9 L T. 0. S. 242 ; 11 Jur. 315 261 Brierlev Hill Local i^oard v. Pearsall (1884), 9 A. C. 595 ; 54 L. J. Q. B. 25 ; ol L. T. 577 ; 33 W. R. 56 79,518,520,525 Bri 1 43 r. Fenwick (1866), 35 L. J. Ch. 241 ; 13 L. T. 787; 14 W. R. 257 . . . . ... . 233, 234 Brown and London ami Nort'n-Wusti-ru Railway Com])any, In re (1863), 4 B & S. 326; 32 L. J. Q. B. 318 ; 11 W. J{. 884; 10 Jur. X. S. 234 426 Browne and Oxford, &c.. Railway Acts, /,( re (1852), 6 R.- C. 703 ; 16 Jur. 158 197, 2<»5 Browne'.s Trusts, In re (1866), 14 L. T. 37 210 Tahle of Cast's. XIX Bro willow V. Metropolitan Board of AYorks (1864\ 33 L J C P -^33 • 12 W. E. 871 '.' . .''""' 490 Bruusldll V. Caird (1873), L. R. 16 E(|.493 ; 43 L. J. Cli. 1(53 ; 21 W. K. !J43 19.-> Bryau v. Child (1851), 5 Ex. 308 Ig Brynibo Water Company v. Lester's Lime Coiiijiany [1894], 8 R. 329 . 454 Buccleucli V. Metropolitan Board of Works (1871), L. R. 5 H. L 418 • 41 L. J. Ex. 137 ; 27 L. T. 1 ; L. R. 3 Ex. 306 ; L. R. 5 Ex. 221 .' 104, 106, 146, 160, 181 Buck, E.c parte (1863), 33 L. J. Ch. 79 ; 3 X. R. IK) ; 1 H. & M :)19 • 9 L. T. 374 ; 12 W. R. 100 ; 9 Jiir. X. S. 1172 . . . . .' 306 Buckin^jliain, In re (1876), 2 Ch. D. 690 19.9 Buckingliamshire Railway Company, 7/t /e (1850), 14 Jur. 106.5 . . 238 Bunlekiu, /// re [1895], 2 Ch. 136"^; 64 L. J. Ch. 561 ; 72 L. T. 639 • 43 W. R. 534 ; 12 R. 243 514 Burges v. Bristol Urlian Sanitary Authority (1886), 2 T. L. R. 719 ; 50 J- P- 455 " 517^ .-,77 Burgess r. Xorthwicli Local Board (1880\ 6 (}. B. U 264- 50 L J Q. B. 219 ; 44 L. T. 154 ; 29 W. R. 931 ;' 45 J. P. 256 . ' . '. 524 Burkinshaw v. Birmingham and O.xt'ord Junction Railway Company (1850), 5 Ex. 475 ; 2) L. J. Ex. 246 ; 6 R. C. 600 . . 110, 187, 188 Burnard r. Wainwright (1850), 19 L. J. Q. B. 423 ; 1 L. M. & P. 455 . 107 Burnell's Estate, In re (1864), 12 W. R. 568 211 Burr v. Wimbledon Local Brjard (1887), W. X. 155 . . . .517 Burrup v. London and Snuth- Western Railway Company (1891), 64 L T 112 '. . . .337 Busk V. Trowliridge Waterworks Company (1875), L. R. 19 E([. 291 ; 10 Ch. App. 459 ; 44 L. J. Ch. 645 ; 33 L. T. 137 ; 23 W. R. 641 . 57> 161, 254, 449 Butchers' Comi)any, In re (1885), 53 L. T. 491 . . . -^38 Butler's Will, In re (1873), L. R. 16 Erp 479 -202 Butterlield, In re (1861), 9 W. R. 805 243 Buxton V. Xorth-Eastern Railway Company (1868), L. R. 3 Q. B. 549 , 406 BwUCa and Merthyr Dare Steam Collieries, Limited, and Puntvpridd Waterworks, In re [1902], 2 K. B. 135 ; 71 L. J. K. B. 613 ; 87 L T 291 ; 50 W. R. 627 143, 152 Bygrave v. Metropolitan Board of Works (1886), 32 Ch. D. 147 ; 55 L J Ch. 602 ; 54 L. T. 889 ; 50 J. P. 788 24, 258 Byles and The Ipswich Dock Commissioners, In re (1855), 11 Ex. 464 ; 25 L. J. Ex. 53 125 Byng's Settled Estates [1892], 2 Ch. 219 ; 61 L. J. Ch. 511 ; 66 L. T. 754 ; 40 W. R. 457 700 Byron, In re (1863), 1 D. J. & S. 358 243 Byron's Charity, In re (1883), 23 Ch. D. 171 ; 53 L. J. Ch. 152 ; 48 L. T. 517 ; 31 W. R. 317 198, 210, 709 Byron's Trusts, In re (1859), 7 W. E. 367 ; 5 Jur. X. S. 261 . . . 240 C. Oaddick, In re ('1852), 9 Hare, App. ix. ; 1 AV. R. 47 ; 16 .Tur. 965 . 207 •Calcraft r. Roebuck (1790), 1 Ves^y, 22 1 27 Caledonian Railway Company v. Carmichael fl870), 2 L. R. H. L. (Sc.) 56 . " 25, 125 r. Colt (1860'), 3 Macq. 833 ; 3 L. T. 252 ; 7 Jur. X. S. 475 . 17], 392 V. Lockhart (1860), 3 Macq. 808 ; 3 L. T. 65 ; 8 W. R. 373 . 81, 85, 92, 144, 178 V. Ogilyy (1856), 2 Macq. 229 ; 7 Jar. X. S. 475 . . . 127, 174 v. Sprot'(1856), 2 Maop 449 ; 4 W. R. 659 ; 2 Jur. X. S. 623 . 41 S V. Tiircan [1898], A. C. 256 ; 67 L. J. P. C. 69 . . . . 259 ^ V. Walker'.s Trustees (1882), 7 A. C. 259 ; 46 L. T. 826 ; 30 W. R. 569 ; 40 J. P. 576 . . . , . 159, 164, 168, 169, 174, 175, 186 C'alton's Will, In re (1883), 25 Ch. D. 240 ; 53 L. J. Ch. 329 ; 49 L. T. 566 ; 32 W. R. 167 207 ■Cambridge Corporation, Ex parte, In re Eastern Counties Railway Com- pany (1848), 6 Hare, 30 ; 5 R. C. 204 196 h2 XX Tahlc of Cases. PAGE Cameron r. Charing Cross Eailway Company (1864), 33 L. J. C. P. 313 ; 19 C. B. N. S. 764 ; 16 C. B. X^ 8. 430 ; 10 L. T, 381 ; 12 L. T. 121 ; 12 W. R. 105 ; 13 W. E. 390 73 Campbell v. Corporation of Liverpool (1870), L. R. 9 Eq. 579 ; 21 L. T. 814 ; 18 W. R. 422 80, 124, 140 Cann's Estate, In re (1850), 19 L. J. Ch. 376 ; 15 Jur. 3. . . 196, 237 Canterbury, Ex parte Archbishop of (1848), 2 De G. & Sm. 365 ; 5 R. C. 692 ; 12 Jur. 1042 207, 215 , Ex parte Dean of (1862), 7 L. T. 240 ; 10 W. R. 505 . . 199, 238 Cant's Estate, In re (1859), 29 L. J. Ch. 119 ; 4 De G. & J. 503 ; 6 Jur. X. S. 183 200' Capell r. Great Western Railway Com] any (1883), 11 Q. B. D. 345 ; 52 L. J. Q. B. 348 ; 48 L. T. 505 ; 31 W. R. 555 .... 100, 131 Cardiff (Mayor of) r. Cardiff Water>Yorks Company (1859), 5 Jur. N. S. 953 52 Cardigan (Countess of) v. Curzon-Howe (1893), 9 T. L. R. 244 . . 713 Carey, £'.';^x(r;'e (1847), 10 L. T. 0. y. 37 30^ Cariugton v. AVycombe Railway Company (1868), L. R. 3 Cli. AjjJ). 377 ; 37 L. J. Ch. 213 ; 18 L. T. 96 ; 16 W. R. 494 . 50, 320, 327, 328, 329 Carlisle and Silloth Railway Companv, lie (1863), 33 Beav. 253 . . 244 Carney, Be (1872), 26 L. T. 308 ; 20 'W. R. 407 23.> Carnochan v. Norwicli and Spalding Railway Company (1858), 26 Bear. 169 ' 65 Carpmael v. Profitt (1853), 17 Jur. 875 23a Carr r. Metropolitan Board of Works (1880), 14 Cli. D. 807 ; 49 L. J. Cli. 272 604 Carter v. Great Eastern Railway Company (1863), 8 L. T. 197 ; 9 Jur. X. S. 618 64 Cassel, In re (1829), 9 B. & C. 624 89, 682. Castle Bytham (Yicar of). Ex parte [1895], 1 Ch. 348 ; 64 L. J. Ch. 116 ; 71 L. T. 606 ; 43 W. R. 156 ; 13 R. 24 . . . . 196, 198, 709- Catling r. Great Xorthern Railway Company (1869), 21 L. T. 769 ; 18 W. R. 121 20, 27,9* Catling's Estate, In n- (1890), W. X. 75 243" Chabot r. Morpeth (1850), 15 Q. B. 446 ; 19 L. J. Q. B. 377 ; 12 Jur. 1023 . _ 79, 124, 125. Chamber Colliery Company v. Rochdale Canal Company [1895], A. C. 564 ; 64 L. J. Q. B. 645 ; 73 L. T. 258 ; 11 R. 264 ! . . . 41& Chamberlain, Ex parte (1880), 14 Ch. D. 323 ; 49 L. J. Ch. 354 ; 42 L. T. 358 ; 28 W. R. 505 225 r. West-End of London and Crystal Palace Railwaj' Companv (1863), 2 B. & S. 605 ; 32 L. J. Q. B. 173 ; 8 L. T. 149 ; 11 AV. R. 472 ; 9 Jur. X. S. 1051 l.-)9, 17& Chambers r. London, Chatham and Dover Railway Company (1863), 8L. T. 235 ; 11 W. R. 479 278- Chandler's AViltshire Brewery Ci mipany r. London County Council [1903], 1 K. B. 569 ; 72 L. J. K. B. 250 ; 88 L. T. 271 . \ . . . 584 Chapman v. Monmouthshire Railway Company (1858), 27 L. J. Ex. 97 • 2 H. & X. 267 "; 124 Chapi)ell r. Xorth [1891], 2 Q. B. 252 ; 60 L. J. Q. B. 554 ; 65 L. T. 23 ; 40 W. R. 16 G85 Charlton -•. RoUestou (1883), 28 Ch. D. 237 ; 54 L. J. Ch. 233 ; 51 L. T. 612 228 Chasemore v. Richards (1859), 7 11. L. C. 349 ; 29 L. J. E.\. 81 ; 7 W. R. 685 166, 454 ('hay tor's Settled Estate Act, In re (1884), 25 Ch. D. 651 ; 53 L. J. Ch. 312 ; 50 L. T. 88; 32 W. R. 517 699- Chelsea AVaterworks, //* re (1887), 56 L. J. Ch. 640; 56 L. T. 421 ; 3 T. L. R. 464 30, 202 Chelsea AVaterworks, la re. Ex parte Phillijjs (1855\ 10 Ex. 731 ; 24 L. J. Ex. 79 ; 3 AV. R. 174 ; 1 Jiir. X. S. 143 . .' . .117, 118 Cherrv's Settled Estates, //* rr (1862), 4 I). F. & J. 332 ; 31 L. J. Ch. 351 ; 10 W. R. 305 ; 6 L. T. 31 5,230,231 Cheshunt College, In re (1855), 3 W. R. 638 ; 1 Jur. X. S. 995 . 198, 206". 'J'<(hle of Cast's. xxi PAGE €hild V. Hearn (1874i, L. R. 9 Ex. 176 ; 43 L. J. Ex. 100; 22 "\V. P.. 864 406 Chilwortli Gunpowder C'onipau}' i: Manchester Sliip Canal Company (1891), 8 Times L. R. 79 64,' 80. 88 Chissuni V. Dewes (1828 , 5 Riiss. 29 299 Christchurch, Ex pfui, (1861), 9 W. R. 474 244 (Dean and Chapter of,s Ex r^rt, (1853;, 23 L. .J. Ch. 149 . . 21.5 Christie v. Caledonian Railway Cumiiany (1847), 10 Sc. Sess. Ca. 312 . 394 Christ's Hospital, 7-;.c2x//-^« (1875). L. R. 20 E.i. 605 .... 235 Christ's Hospital (Governors of), In re (1864), 12 W. R. 669 ; lo L. T. 262 235 Christ's Hospital (Goyernors of). Ex parte (1864), 2 H. & M. 166 . . 243 Church and London School Board, In re. Sec Reg. /•. Manley Smith (1892). City and South London Railway Company and St. Marv Wi i' dnoth, In re (1902), 18 T. L. R. 612 " . . .140 €ity of Calcutta, The (1899), 79 L. T. 517 686 City of Glasgow Union Railsvay Company v. Caledonian Railway Com- pany (1871), L. R. 2^1. L. (Se.) 160 ... . 40, 320 V. Hunter (1870, L. R. 2 H. L. (Sc.) 78 .... 166, 169 -Clark V. School Board for London (1874), L. R. 9 Cli. App. 120 : 43 L. J. Ch. 421 ; 29 L. T. 908 ; 22 W. R. 354 . . 55, 186, 254, 562 Clarke and the Wandsworth District Board of "Works, In re ^1868), 17 L. T. 549 180 Clarke c. Mancliester, Sheffield and Lincolnshire Railway Company (1861), IJ. & H. 631 389 V. Stocken (1835), 3 Scott, 90 ; 5 D. P. C. 32 ; 2 Bing. N. C. 651 . 679 V. Thornton (1887), 35 Ch. D. 307 ; 56 L. J. Ch. 302 ; 56 L. T. 294 ; 35 W. R. 603 203, 705 ■Clarke's Estate, In re (1865), 13 W. R. 401 ; 11 L. T. 667 ; 11 Jur. X. S. 7 200 (J.) Estate, In re (1882j, 21 Ch. D. 776 ; 52 L. J. Ch. 88 . . 245 Settlement, In re [1902] , 2 Ch. 327 ; 71 L. .J. Ch. 593 ; 86 L. T. 653 ; 50 W R 585 " • . . • .712 Clavpole (Rector of), Ex parte (1873 1, L. R. 16 Erp 574 ; 42 L. J. Cli. 776 ; 29 L. T. 51 194, 237 Clergy Orphan Corporation, In re ri894], 3 Ch. 145 ; 64 L. J. Cii. 66 ; 71 L. T. 450 ; 43 W. R. 150 ^. 201 Cleveland's Settled Estates, //; re [1902]. 2 Ch. 350 ; 71 L. .J. Ch. 763 ; 86 L. T. 678 ; 50 AV. R. 50« 702 Clinton, la re (1860), 8 AV. R. 492 ; 6 Jur. N. S. 6(il .... 205 Clitherue's Trust, In re (1869), 20 L. T. 6 ; 17 AA\ R. 345 . . .194 Clothier v. AA'ebster (1862;, 12 C. B. X. S. 790; 31 L. J. C. P. 317 ; 6 L. T. 461 ; 10 AA'. R. 624 ; 9 .Jur. N. S. 231 172 Clout V. Metropolitan and District Railway Comptiuies (1882), 46 L. T. 141 ' 86 r. Metropolitan and District Railways .Joint Committee (1883), 48 L. T. 257 " 146 Clowes V. StafiFordshire Potteries AVatersvorks CJompany (1872 . L. It. 8 Ch. App. 125 ; 42 L. J. Ch. 107 ; 27 L. T. 521 ; 21 AV. R. 32 . 52, 172, 450 Coats V. Clarence Railway Company (1830^ 2 Russ. & Mv. 181 . . 374 Cobb V. Mid-AVales Railway Company (1866), L. R. 1 Q. B. 342; 35 L. J. Q. B. 117 ; 14 W. R. 775 ; 12 Jur. X. S. 228 . . . 132, 283 Codrington's Charity, In re (1874), L. R. 18 Eq. 658 . . . . 2ii6 Cofield, £'x2X(r^> (1847), 11 Jur. 1071 2o5 Cohen r. AVilkinson (1849\ 1 M. & G. 481 ; 12 Beav. 138 ; 18 L. J. Cli. 378 ; 14 Jur. 491 43 Colac V. Summerfield [1893], A. C. 187 ; 62 L. J. P. C. 64 ; 68 L. T. 769 523 Cole V. AA^est London and Crystal Palace Railway Company (1859), 28 L. J. Ch. 767 ; 27 Beav. 242 ; 1 L. T. 17s ; 5 Jur. X. S. 1114 . . 273 Colley V. London and Xorth-AVestern Railway Company (1880;, 5 Ex. D. 277 ; 49 L. J. Ex. 575 ; 42 L. T. 807 . . . ' . . . .408 Collins r. South Statfordshire Railway Company (1852), 7 Ex. 5 ; 21 L.J. Ex. 247; 16 Jur. 843 . . " ^76,84 Collinsonr.Xewcastleand Darlington liailwav Company (1844), 1 C. & K. 546 ' 393 xxii TahJc of Cases. PAGE Collins's Charity, In re (1851), 20 L. J. C'h. 168 20G Collis's Estate, In re (1866), 14 L. T. 352 214, 215 Collver-Bristowe and Company, In re [1901], 2 K. B. 839 ; 70 L. J. K. B. 941 ; 85 L. T. 208 ; 50 W. R. 4 . .684 Colman v. Eastern Counties Railway Company (1846), 10 Beay. 1 ; 16 L. J. Ch. 73 ; 11 Jur. 74 . . . ." 4a Coleridge'p (Lord) Settlement, In re [1895], 2 Cli. 704 ; 73 L. T. 206 ; 44 W. R. 59 . . . ^ . 701 Commissioners of Cluircli Temporalities in Ireland, In re, Ex imrte Lord Leconfield (1874), I. R. 8 Eq. 559 197, 239 Consett Waterworks Company r. Ritson (1889), 22 Q. B. D. 702 ; 60 L. T. 360 ; 53 J. P. 373 418 Cook's Estate, Re (1863), 8 L. T. 759 226 Coolinq r. Great Northern Railway Company (1850), 15 Q. B. 486 ; 19 L. J. Q. B. 529; 14 Jur. 875 ' 118 Cooper, Ex imrte, In re North London Railway Company (1865), 34 L. J. Ch. 373 ; 11 L. T. 661 ; 13 AY.'R. 364 ; 2 Dr. & Sm. 312 ; 11 Jur. N. S. 103 . . . . 123, 141, 148, 224, 243 V. GostlinL; (1863), 4 Gilt". 449 ; 9 L. T. 77 ; 11 W. R. 931 . . 31 V. Metropolitan Board of Works (1883), 25 Ch. D. 472 ; 53 L. J. Ch. 109 ; 50 L. T. 602 ; 32 ^\. R. 709 . . 63, 142, 200, 223, 299 r. Norfolk Railway Company (1849), 3 Ex. 546 ; 18 L. J. Ex. 176 ; 6 R. C. 24 ; 13 Jur. 195 284 Copley, Ex parte (1858), 4 Jur. N. S. 297 235, 236 Corpus Christ! College, Oxford, Ex parte (1871), L. R. 13 Ecp 334 ; 41 L. J. Ch. 170 .' 244 Corrigal v. London and Blackwfdl Railway Company (1842), 2 D. P. C. 851 ; 12 L. J. C. P. 209 ; 3 R. C. 411 ; 5 M. & G. 219 . 113, 121, 122, 128 Corry v. Great Western Railway Company (1881), 7 Q. B. D. 322 ; 50 L.'J. Q. B. 386 ; 44 L. T. 70l'; 29 W. R. 623 ; 45 J. P. 712 . . 405 Cother r. Midland Railwav Company (1848), 17 L. J. Ch. 235 ; 5 R. C. 187 ; 2 Ph. 469 . ." 359, 373 Cotter V. Metropolitan Railway Company (1864), 10 L. T. 777 ; 12 W. R. 1021 ; 10 Jur. N. S. 1014 ' . . ' . . . .36, 138, 260, 261 Cotton's Trustees and School Board for London, Be (1882), 19 Ch. D. 624 ; 51 L. J. Ch. 514 ; 46 L. T. 813 ; 30 W. R. 610 . . . . 36 Cottrell V. Cottrell (1885), 28 Ch. 1). 628 ; 54 L. J. Ch. 417 ; 52 L. T. 486 ; 33 W. R. 361 216 Coulson, In re (1867), W. N. 233 205 County Theatres and Hotels, Limited r. Knowles [1902], 1 K. B. 480 ; 71 L. J. K. B. 351 ; 86 L. T. 132 686 Coventry Justices, In re (1854), 19 Beav. 158 ; 24 L. J. Ch. 586 . . 229 Coventry r. London, Brighton and South Coast Railway Company (1867), L. R.' 5 Eq. 104 ; 37 L. J. Ch. 90 ; 17 L. T. 368 ; 16 W. R. 267 327, 328 Covington r. Metropolitan District Railway Company [1903], 1 K. B. 231 ; 72 L. J. K. B. 93 ; 87 L. T. 649 ; 19 T. L. R. 142 . . . 3.54 Cowper Essex v. Acton Local Board (1889\ 14 A. C. 153 ; 58 L. J. Q. B. 594 ; 61 L. T. 1 ; 38 W. R. 209 . . . 126, 144, 145, 146, 181, 342 Coyte's Estate, /?! ?t' (1851), 1 Sim. N. S. 202 198,219 Crane's Estate, In re (1869), L. R. 7 Eq. 322 ; 17 AV. R. 316 . . 215, 219 Cranwell i: Mayor of London (1870), L. R. 5 Ex. 284 ; 39 L. J. Ex. 193 ; 22L. T. 760" 147,307 Crayen, Ex parte, In re Cheltenham and Great Western Railway Com- pany (1848), 17 L. J. Ch. 215 " . .196 Crawfurd r. Chester and Holyhead Railway Company (1847), 11 Jur. 917 367 Creech St. Michael (Vicar of). Ex parte (1852), 21 L. J. Ch. (577 . . 235 Croft V. London and North-Western Railway Comjiany (1863), 32 L. J. Q. B. 113 ; 3 B. & S. 4.36 ; 7 L. T. 741 ; Vl W. R. 360 . .178, 179 Cromford Canal Comi>any r. Cults (1848), 5 R. C. 442 . . . . 418 Crook V. Seaford Cori)oration (1871), L. 1!. 6 Ch. Ai)p. 551 ; 25 L. T. 1 ; 19 \V. R. 938 20 Cucktield Burial Board, In re, Ex jHirte Earl of Abergayeuny (1854), 19 Beavan, 153 ; 24 L. J. Ch. 585 " . . . 3(> Tahh' of Cases. xxiii D. PAGE Dageuhani Dock Coinpanv, In re (1873), L. E. 8 C'li. 1022 ; 43 L. J. Cb. 2(31 ; 21 W. R. 8!)8 28 Da-lish r. Barton [1900], 1 (,». B. 284 ; 68 L. J. Q. B. 1044 ; 81 L. T. 551 ; 48 W. R. 50 6-'3 Dalisou's Settled Estates, //( re [1892], 3 Cli. 522 ; Gl L. J. Cb. 712 ; 41 \V. R. 15 711,713 Darbvsbire r. Lei^b [1896], 1 Q. B. 554 ; 65 L. J. Q. B. 360 ; 74 L. T. 241 ; 40 W. R. 452 G90 Dare Valley Railway Coiupanv, In re (1869), L. R. 4 Cb. A]. p. 554 ; 38 L. J. Cb. 417 ; 20"L. T. 219'; 17 W. R. 717 . . 81, 104, 107, 6!Jl Dainlev r. London, Cbatbam and Dover Railway Company (1867), L. R. 2 H.'L. 43 ; 36 L. J. Cb. 404; 16L. T. 217 ; 15 W. R. 817 . . 683 Dartford Rural Council r. Bexlev Heatb Raihvay C(»nipany [1898], A. C. 210 ; 67 L. J. Q. B. 231 ; 77 L. T. 601 ; 46 W. R. 235 ; 62 J. P. 227 . 385 Dasbwood, £:(;^xn-;e(1856), 26L.J.Cb. 299;3 Jur. N. S. 103 . . 232 Davenant's Cbarity, In re (1854), 2 W. R. 344 206 Davies v. Suutb Stallordsbire Raihvay Company (1851), 21 L. J. M. C. 52 ; 15 Jur. 1133 ; 1 B. C. C. 599 . . • 9i> Davis V. Witney Urban District Council (1899), 15 T. L. R. 2/5; 63 J. P. 279 ^'^ Davis's Estate, In re (1858), 27 L. J. Cb. 712 ; 3 De G. & J. 144 . 194, 199 Dawson r. Midland Railwav Company (1872), L. R. 8 Ex. 8 ; 42 L. J. Ex. 49 ; 21 W. R. 56 *i5 De Beauvoir's Trusts (1860), 29 L. J. Cb. 567 ; 2 D. F. & J. 5 ; 6 Jur. X. S. 593 235 Deere v. Guest (1836). 1 My. & Cr. 516 De Grey's Entailed Estate, Re (1887\ W. X. 122 DelagoaBay Company and Tancred, In re (1889), 61 L. T. 343 ; 37 W. R. 578 Delaney v. Metropolitan Board of Works (1867), L. R. 2 C. P. 532 ; L. R. 3 C. "P. Ill ; 37 L. J. C. P. 59 ; 17 L. T. 262 ; 16 AV. R. 137 . Denton r. Strong (1874), L. R. 9 Q. B. 117 ; 43 L. J. Q. B. 41 ; 30 L. T. 52 ; 22 W. R. 316 Derbv Municipal Estates, In re (1875), 3 Cb. D. 289 ; 24 W. R. 729 De Tabley (Lord), //t?-« (1896), W. N. 162 712 De Teisser, In re [1893], 1 Ch. 153 ; 62 L. J. Cb. 552 ; 68 L. T. 275 ; 41 W. R. 186 "12 Dimes v. Grand Junction Canal Comjianv (1846), 9 Q. B. 469 ; 16 L. J. Q. B. 107; 11 Jur. 429 285 Dinn r. Blake (1875), L. R. 10 C. P. 388 ; 44 L. J. C. P. 276 ; 32 L. T. 489 .. 10". 692 Dnming v. Henderson (1848), 2 De G. & S. 485 ; 19 L. J. Cb. 2,3 ; 14 Jur. 1038 233 Diss Urban Sanitary Autbority r. Aldricb (1877), 2 Q. B. D. 179 ; 46 L. J. M. C. 183 ; 36 L. T. 663 ; 41 J. P. 549 522 Divers, In re (1855), 1 Jur. X. S. 995 25, 232 Dixie r. Wright (1863), 32 Beav. 662 ^ • .193 Dixon c. Caledonian Railwav Company (1880), 5 A. C. 19 ; 43 L. T. 513 ; 29 W. R. 249 . " 412, 417 • V. Great Western Railwav Company [1897], 1 Q. B. 300 ; 66 L. J. Q. B. 132 ; 75 L. T.'539 ; 45 W. R. 226 404 v. Jackson (1856), 25 L. J. Cb. 588 ; 4 W. R. 450 . . . 198, 237 Dobson r. Blackmure (1846), 9 Q. B. 991 ; I6 L. J. Q. B. 233 ; 11 Jur. 556 157 Dodd V. Salisbury and Yeovil Railwav Company (1859), 1 Giil. 158 ; 5 Jur. X. S. 782 . . . . " ^^ Dodd's Estate, lie (1870), 24 L. T. 542 ; 19 W. R. 741 . . . . 234 Doe (I Armitstead v. Xortli Staffordsbire Railway Comi)any (1851), 20 L. J. Q. B. 249 ; 16 Q. B. 526 ; 15 Jur. 944 155, 25,, 311,313, 367 J. Hudson r. Leeds and Bradford Railwav Company (1851), 16 (^ B. 796 ; 20 L. J. Q. B. 486 ; 15 Jur. 946 253 J. Hutcbinson v. Manchester, &c., Railway Company (1845), 15 L. J. Ex. 208 ; 15 M. & W. 687 ; 9 Jur. 949 221 68 209 692 189 81 196 xxiv Table of Cases. PAGE Doe (I Hyde v. Mayor of Mancliester (1852), 12 C. B. 474 . . 315, 316 d. Payne v. Bristol and Exeter Piaihvav Comiiany (1840), 6 M. & W. 320 ; 2 R. C. 75 * 367 Donaldson r. South Shields Corporation (1899), W. X. 6 ; 79 L. T. 685; 68 L. J. Oil. 162 . . . . . 49 Donisthorpe and Manchester, Sheffield and Lincolnshire Railway Com- pany, In re [1897], 1 Q. B. 671 ; 66 L. J. Q. B. 399 ; 76 L. T. 371 ; 45 W. R. 386 446 Donkin, In re (1893), 9 T. L. E. 192 680 Douglass v. London and Nortli-Western Railway Company (1856\ 3 K. & J. 173 ; 3 Jur. X. S. 171 . . . \ . . . ' . 221 Doulton V. Metropolitan Board of "Works (1870), L. R. 5 Q. B. 333 ; 39 L. J. Q. B. 165 ; 18 W. R. 790 101,353 Dover (Warden of) v. London, Chatham and Doyer Railway Comitauy (1861), 30 L. J. Ch. 474; 3D. F. & J. 559 . . . '. . . 385 Dowlin^S //( re (1876), 45 L. J. Ch. 568 ; 24 W. R. 729 . . . . 205 v. Pontypool, &c.. Railway Company (1874), L. R. 18 Eq. 714 ; 43 L. J. Ch. 761 . . ■; 47, 48, 54, 368, 372 Doyne, In re (1888), 24 L. R. (Ir.) 287 66 Drake r. Greayes (1886), 33 Ch. D. 609 ; 55 L. J. Ch. 133 ; 55 L. T. 353 ; '34W. R. 757 234 — — V. Trefusis (1875), L. R. 10 Ch. App. 364 ; 33 L. T. 85 ; 23 W. R. 762 ........... 194 238 701 Drax t: Somerset and Dorset Railway Comnany (1869), 38 L. J 'cji 232 ; 19 L. T. 626 . . . ... ' 964 Dreyfus, //( re (1893), 9 T. L. R. 358 .' 680 Drummond and Davies' Contract, Li re [1891], 1 Cli. 524 ; 60 L. J Ch' 258 ; 64 L. T. 246 ; 39 W. R. 445 200 Dublin and I^rogheda Railway Company r. X^ayan and Kingscourt Rail- way Comixuiy (1871), L R. 5 Etj. 393 . . . . ' . . . 437 Dublin Corporation, /;( re (1881), 7 L. R. Ir. 173 ..... 232 (Mayor of) r. Dowling(1880), 6L. R.lr. 502 . . .' . 175,584 Dublin, Wicklijwand Wexford Railway Comijany, la re. Ex parte Richards ' (1890), 25 L. R. Ir. 175 . . ..'... . . 19G Dublin, Wicklow and Wexford Railway Company, In re, Ej' parte Totteidiam(1884), 13L. R. Ir. 479 .' . .' . . . . 197 Dudley Canal Company i-. Grazebrook (1830), 1 B. & Ad. 59 . '. 416 418 Dudley Corporation, In re (1881), 8 Q. B. D. m; 51 L.J. Q. B. 121 ; 45 ' L. T. 733 ; 46 J. P. 340 .... 264, 418, 465, 489, 514, 528 Duffy s Estate, In re [1897], 1 Ir. R. 307 326 Duggan's Trusts, In rr (1869), L. R. 8 E([. 697 ..." ' 245 Dummer, In re (1865), 2 De G. J. & S. 15 ; 34 L. J. Ch 496 • 12 L T 626; 13 W. R. 908 ; llJur. N. S. 615 " " 194 Dungey -. Mayor of London (1869), 38 L. J. C. P. 298 ; 20 L T 9-^1 • 17 W. R. 1106 " '. .'e, 16 Duuhill V. Xorth-Eastern Railway Company [1896], 1 Cii. 121 • 65 L J Ch. 17K ; 73 L. T. 644 ; 44 W. R. 231 ; 60 J. P. 228 . . ' . ' " 322 Dunn r, Birmingham Canal Company (1881), L. R. 8 (). B 4-^ • 42 L J Q. B. 34 ; 27 L. T. 683 ; 21 W. W". 266 " ! 416 Durrant r. Branksome Urban Council [1897], 2 Ch. 291 • 66 L J Ch 655 ; 76 L. T. 739 ; 46 AV. R. 134 ... ' ' ' ' 5^4 Dylar's Estate, In r<' (1855), 1 Jur. X. S. 975 ..." -907 Dy.son and Fowke, Jn r, [1896], 2 Ch. 720 ; 74 L. T. 45() ; 44 W R 610 ^32 JA.S0U V. Hornby (1851;, 4 Dc G. «.\: Sm. 481 27 E. Eagle v. Charing Cross Railway Com])anv (1867), L. R 2 C P 638 • 36 L. J. C. P. 297 ; 16 L. T. 593 ; 15 W. R. 1016 . . ' 86' 181 183 Eurn.shaw-Wall, In re [1894], 3 Ch. 154 ; 63 L. J. Cli. 836 ; 8 R 558 • ' 71 L. T. 173; 42 W. R. 567 . ' 249 East and West India Dock Company r. (Jattke (1851), 3 M. & G. 155 '; 20 L. J. Ch. 217 ; 6 R. C. 371 ; 15 Jur. 261 80, 188, 189, 520, 525 Talk' of Cases. xxv PAGE East and West India Dock Company r. Kirk and Randall (1887), 12 A. C. 738 ; 57 L. J. Q. B. 295 ; 58 L. T. 158 . . . . 87, 680 East Dereham, Ex parte Vicar ot (1852), 21 L. J. Ch. G77 . . . 207 Eastern Counties llaihvav Company r. Hawkes (1855), 5 H. L. C. 331 ; 24 L. J. Ch. GOl ;" 3 W. R. (300 22 ix^xn-^c(1845), 5 R. C. 210 267 ■ hi re, Ex parte Caye (1856), 26 L. T. 0. S. 176 . . . . 250 In re, Ex parte Vicar of Sawston (1858), 27 L. J. Ch. 755 ; 6 W. R. 492 ; 4 Jur. N. S. 473 237 Eastern Counties, &c., Railway Company r. Marriage (1860), D H. L. C. 32 ; 31 L. J. Ex. 73 ; 3 L. T. 60 ; 8 \Y. R. 748 ; 6 Jur. X. S. 53 17, 283 Eastliam r. Blackburn Raihvav Com]>any (1854), 9 Ex. 758 ; 23 L. J. Ex. 199 ; 2 W. R. 377 . " T3, 339 East Lincolnshire Railway Act, la re (1851), 1 Sim. X. S. 260 . . 192 East London Railway Company, In re, Oliver's Claim (1890), 24 Q. B. D. 507 ; 63 L. T. 147 ; 38 W. R. 312 80, 446 East London Railway Company r. Whitchurch (1874), L. R. 7 H. L. 81 ; 43 L. J. M. C. 159"; 30 L. T" 412 ; 22 W. R. 665 .... 336 East London Union r. Metropolitan Railway Company (1869), L. R. 4 Ex. 309 ; 38 L. J. Ex. 225 ....".... 103 Eaton r. Midland Great Western Railway Compmv(1847), 10 L. R. Ir.310 187 Eccleshill Local Bivard, la re (1880), 13 Cli. D. 365 ; 49 L. .J. Ch. 214; 28 W. R. 536 25 Ecclesiastical Commissioners, Ex partr (1870), 39 L. J. Ch. 623 . . 240 V. Commissioners of Sewers (1880), 14 Ch. D. 305 ; 28 W. R. 824 . 66, 114, 470 V. London and South-Western Railway Company (1854), 23 L. J. C. P. 177 ; 14 C. B. 743 ; 2 W. R. 560 ; 18 Jur. 911 . . . 285, 287 Eckersley r. Mersey Docks [1894], 2 (,). B. 667 ; 71 L. T. 308 ; 9 R. 827 680, 687 Eden r. Thompson (1864), 2 H. & M. 6 234, 242 Ediid)urgh and District AVater Trustees r. Clippens Oil Company (1902), 87 L. T. 275 458 Ednieade's Estate, //( re (1860), 8 W. R. 327 ; 6 .Jur. X. S. 986 . . 229 Edmunds, la re (1866), 35 L. J. Ch. 538 240, 247 Edmundson, He (1852), 17 Q. B. 67 ; 18 Q. B. 243 ; 21 L. J. M. C. 193; 16 Jur. 817 77, 82 Edwards, Ex parte, In re Marylebone Lnproyement Act (1871), L. R. 12 Eq. 389 ; 40 L. J. Ch. 697 ; 25 L. T. 149 ; 19 W. R. 1047 . . 65 Edward VI.'s Almshouse.*, In re (1868), 37 L. J. Ch. 664 ; 19 L. T. 80 ; 16 W. R. 841 206, 210 Eguiont's (Lord) Settled Estates, In re (1890), 45 Cli. D. 395 ; 59 L. J. Ch. 768 ; 63 L. T. 608 ; 38 W. R. 762 711 ■ (Earl of) Settled Estates, Jyi r<^ (1900), 16 T. L. R. 360 . . . 714 Egremont, lie Lord (1848), 12 Jur. 618 212 Eldon (Earl of) <-. Xorth-Eastern Railway Comiuvny (1899), 80 L. T. 723 185 Elliot V. Xorth-Eastern Railway Company (1863), 10 H. L. C. 333 ; 32 L. J. Ch. 402 ; 9 Jur. N. S. 551 318 r. Remington (1839), 9 Sim. 502 210 V. South Devon Railway Company (1848), 2 De G. & S. 17 ; 2 Ex. 725 ; 17 L. J. Ex. 262 ; 5 R. C. 500 ; 12 Jur. 445 ... 85, 282 Ellison's Estates, In re (1856), 25 L. J. Ch. 379 ; 8 De G. M. & G. 62 ; 2 Jur. X. S. 293 229 Elrington r. Elrington (1859), 4 Drew. 545 210 Emerson v. Secretary ot State for War (1893), 9 T. L. R. 470 . . . 680 Emmanuel Hospital Trustees c Metropolitan District Railway Company (1869), 19 L. T. 692 119 Emsley r. Xorth-Eastern Railway Company [1896], 1 Ch. 418 ; 65 L. J. Ch. 385 ; 74 L. T. 113 ; 60 J. P. 182 373 En^dish, J/i n (1865), 12 L. T. 561 ; 13 W. R. 932 243 English's Settlement, In re (1888), 39 Ch. D. 556 ; 57 L. J. Ch. 1048 ; 60 L. T. 44 ; 37 W. R. 191 234 Errington v. Metropolitan District Railway (1881), 19 Ch. D. 559 ; 51 L. J. Ch. 305 ; 46 L. T. 443 ; 30 W. R. 663 . 19, 65, 36U, 414, 415 xxvi Tdhic of Cases. PAGE Estlaile, In re. See Esdaile r. Esdaile. V. Esdaile (1886), 54 L. T. 637 163. 700 V. Metioi)olitau and District Eailway Companies (1881), 46 J. F. 103 163 Eton, i;/;2wr/t'(1842), 3 H. C. 271 ; 6 Jur. 908 23G College, Ex r Fenwick v. East London Railway Companv (1875), L. E. 20 Ecj. 544 ; 44 L. J. Ch. 602 ; 23 \\. E. 901 . . ' . . . . 371, 373, 379 Feigusson r. London, lirighton and South Coast Railwav Company (1864), 3 De G. & S. 653 ; 33,Beav. 103 ; 33 L. J. Ch. 29 ; 9 L. T. 134 ; 11 W. R. 1088 272 Ferraml v. Bradlbrd Corporation (1856), 21 Beav. 412 ; 25 L. J. Ch. 389 ; 2Jur. N. S. 175 57,161,449 Ferrar r. Commissioners rietors of Bann Reservoir (1878) 3 A. C. 430 . . .172 Gedling Rectory, In re (1885), 53 L. T. 244 237 Gedye r. Comniissioners of Works [1891], 2 Ch. 630 ; 60 L. J. Ch. 587 ; 65 L. T. 359 ; 39 W. R. 598 225 (ierard and Beecham's Contract, In re [1894], 3 Ch. 295 ; 63 L. J. CJi. 695 ; 7 E. 519 ; 71 L. T. 272 38 Gerard (Loid) andthe London and Xorth- Western Eailway Company, /ji re [1895], 1 g. B. 459 ; 64 L. J. (}. B. 260 ; 72 L. T. 142 ; 43 W. E. 374 ; 14 E. 201 87, 411, 415,680 Gerard's (Lord) Settled Estate, In re [1893]. 3 Ch. 252 ; 63 L. J. Ch. 23 ; (i9 L. T. 393 ; 9 T. L. E. 587 . . . . . . 203, 705, 712 Gibson r. Hammersmith Eailway Com]>anv (1863), 32 L. J. Ch. 337 ; 8 L. T. 43 ; ] 1 W. E. 299 ; 9 Jur. N. S. 221 . . . . 152, 259, 276 GiUord and Bury Town Council, //( re (1888), 20 Q. B. 1). 368; 57 L. J. Q. B. 181 ; 58 L. T. 522 ; 36 W. E. 468 ; 52 J. P. 119 . . 520 Giles V. London, Chatham and Dover Railway Company (1861), 1 Dr. & Siu. 406 ; 30 L. J. Ch. 603 ; 5 L. T. 479 ] 9 W. R. 587 ; 7 Jur. X. S. 509 259 fiiliard r. Cheshire Lines Committee (1884), 32 W. R. 943 . . . 156 Gladwin r. Ciiilcote (1841), 9 1). W C. 5.50 ; 5 Jur. 749 .... 93 (ihisgow (Lord Provost of) r. Fairie (1888), 13 A. C. 657 ; 58 L. J. P. C. 33 ; 60 L. T. 274 ; 37 W. R. 627 412, 413 Clos.sop r. Ueston Local lioard (1879), 12 Ch. D. 102, 122 ; 49 L. J. Ch. S9 ; 40 L. T. 736 ; 28 W. R. Ill 75 Gloucester (Dean of), Ex )i. 55 ; 9 Jur. X. S. 119 ; 11 W. R. 75 680 Hartiii-ton, i!-',';7/<(//(.(1875), 23 W. R. 484 195 Harvie <•. South Devon Railway Compaiiv (1874), 32 L. T. 1 ; 23 W. R. 202 70, 274, 281 Harw(;rth, In re (1855), AV. X. 48 208 Hasker v. AVood (1885), 54 L. J. Q. B. 419 ; 33 W. R. 697 . . . 230 Hawkins, A'x^wr^e (1843), 13 Sim. 569 192 Hawley v. Xortli Stalfordshire Railway Companv (1848), 2 De G. & Sm. 33 ;'l2 Jur. 389 ; 5 R. C. 383 89, 93 Hay V. City of Glasgow Union Railway Coiiii.any (1874), 1 Sc. Ses.s. Cas., (4tiiser.) 1191 . . . '. . ^ 392 Hayes, In re (1861), 9 W. W. 769 200 Hayne, /:;.'• /w/Vc' (1865), 12 L.T. 200; 13 AV. R. 492 . . . .224 Haviies V. ]}arton (1861), 30 L. J. Ch. 804 ; 1 Dr. & Sm. 483 . . 233 . L i: Hayncs (1861), 1 Dr. & Siu. 426 ; 30 L. J. C!i. 578 ; 4 L. T. 199 ; 9 W. R. 497 ; 7 Jur. X. S. 595 23 Hayward v. :Metropolitan Hallway Company (1864), 33 L. J. Q. B. 73 ; 4 B. & S. 787 ; 9 L. T. G80 ; 12 AV. R. 577 ; 10 Jur. X. S. 418 . 97, 99, 110, 111, 129, 131, 177, 190 Tahh of Cases. xxxi PAGE Havwar.1 v. :\rutual Reserve- Association [1891], 2 Q. B. 236 ; 65 L. T. 491 ; 39 W. R. 624 690 Healey v. Thames A^alley Railway Company (1864), 34 L. J. Q. B. 52 ; 11 L. T. 268 ; 13 W. R. 44 ; lo'jur. X. S. 1 182 ; 5 B. & S. 769 72, 73, 177 Hedj^es v. Metropolitan Railway Comiiany (1861), 28 Beav. 109 ; 3 L. T. 643; 6 Jur. N. S. 1275 .'^ . .' 59 Henniker r. Chafy (1861), 28 Beay. 621 ; 7 Jiir. N. S. 87 . . . 233 Herbert v. Salisbury and Veoyil Railway Company (1866), L. R. 2 E(j. 221 ; 14 L. T. 507 27 Heriot v. London, Cliatliam and Doyer Railway Coinpanv (1867), 16 L. T. 473 ' . . ' . . . 263 Herring v. Ikletropolitan Board of Works (1865), 19 C. B. N. S. 510 ; 34 L. J."]M. C. 224 16(5, 4!K), 523 Herron v. Ratlimines and Ratligar Improvement Commissioners [1892], A. C. 498 ; 67 L. T. 658 51, 367 Hewitt and Port^nioutli Waterworks Company, In re (1862), 10 W. R. 780 :..... 94 Hewson V. London and South-Western Railway Company (1860), 2 L. T. 369 ; 8 W. R. 467 . . . . ". . \ . . . 273 Hext t: Gill (1872), L. R. 7 Cli. App. 699 ; 41 L. J. CIi. 701 ; 27 L. T. 291; 20 W. R. 957 - 413 Hicks, In re, Ilx parte Nortli-Eastern Railwav Company (1894), 70 L. T. 529 ; 63 L. J. Cli. 568 ; 8 R. 319 . " . . ' . . . .208 Hi^fjins and Hiteliman's Contract, //( re (1882), 21 Cli. D. 95 ; 51 L. J. C'h. 772 ; 30 W. R. 700 ; 46 J. P. 805 324 Hi-s,dns r. Mayor of Dublin [1891], 28 L. R. Ir. 484 .... 62 Hi-iigate Arcliwav Company r. Jeakes (1871), L. R. 12 E([. 9 ; 40 L. J. Ch. 408 ; 24 L.^T. 567 ; 19 W. R. 692 329 Hilcoat V. Arciibisliop of Canterbury (1850) 10 C. B. 327 ; 19 L. J. C. P. 376 ' 140 Hill V. Great Northern Railway Company (1854), 5 I)e G. M. & C. 66 ; 24 L. .T. Ch. 212 . . ' 62 V. Haire [1899], 1 Ir. R. 87 7, 313 V. ]\Iidland Railway Company (1882), 21 Ch. D. 143 ; 51 L. .J. Ch. 774 ; 47 L. T. 225 ; 30 W. R. 774 55, 254, 259 Hitchins, Be (1853), 1 W. R. 505 212 Hobbs V. Midland Railway Company (1882), 20 Ch. D. 418 ; 51 L. J. Ch. 320 ; 46 L. T. 270 ; 30 AV. R.\516 327, 328 Hobson's Trusts, /;( re (1878), 7 Ch. D. 708 ; 47 L. J. Cli. 310 ; 38 L. T. 365 ; 26 W. R. 470 201 Hod^e, A'.nwrfP (1848), K; Sim. 159 ; 12 Jur. 239 .... 238 Hodgkinson v. Feriiie (1858), 27 L. J. C. P. 66 ; 3 C. B. N. S. 189 . 107 Hodg.son I. Bell (1890), 24 Q. B. D. 305 ; 62 L. T. 481 ; 54 J. P. 455 . 678 ■ V. Railway Passengers' Assurance Conipaiiy (1882), 9 Q. B. D. 188 686 Holden, In re (1863), 1 PI. & M. 445 . . " 202 Holden's Estate, //( re (1864), 10 Jur. X. S. 3o8 202 Holdsworth r. AVilscjii (1863), 4 B. & S. 1 ; 32 L. J. Q. B. 289 ; 8 L. T. 434 ; 11 AV. R. 733 ; 10 Jur. N. S. 171 . . . . 81, 88, 91, lol Hollick, Exjmrte (1846), 16 L. J. Ch. 71 ; 4 U. C. 498 . . . . 210 Hollidav and Wakefield ,Coriioration, In re (1888), 20 Q. B. D. 699; [1891], A. C. 81 ; 60 L. J. q. B. 361 ; 04 L. T. 1 ; 40 AY. R. 129 ; 55 J. P. 325 97,411,410,421,450,458,460,461 Holliugsworth, ^'.o^xofe (1871), 24 L. T. 347 ; 19 W. R. 580. . . 226 Holt i).' Gas Light and Coke Company (1872), L. R. 7 Q. B. 728; 41 L. J. Q. B. 351 ; 27 L. T. 442 121, 146, 328 Holywell (Rector of), Kx parte (1865), 2 Dr. & Siu. 463 ; 13 W. R. 960 ; 11 Jur. N. S. 579 235 Holvwell-cum-X^eedingworth, Ex yarte Rector of (1879), 27 W. R. 707 ... " 195 Hood V. Noith-Easteru Railway CVnnpany (1870), L. I!. 11 Eip 116 ; 40 L. J. Ch. 17 ; 23 L. T. 493 ; 19 W. R.\323 407 Hooper v. Bourne (1877), 3 Q. B. D. 258 ; 47 L. J. Q. B. 437 ; (1880), 5 A. C. 1 ; 49 L. J. Q. B. 370 ; 42 L. T. 97 ; 28 AV. R. 493 ; 44 J. P. 327 39, 317, 319, 321, 322, 328 xxxii Tdhlc of Cases. Hooper v. Bristol Port Kailwav and Piur Company (1866), 35 L. J. C. P. 299 . . . / 188 Hopkins V. Great Northern llailway Company (1877), 2 Q. B. 1). 224; 4(3 L. J. Q. B. 265 ; 36 L. T. 898 161, 169 Hopper, In re (1867), L. E. 2 Q. B. 367 ; 8 B. & S. lUO ; 36 L. J. Q. B. 97 ; 15 W. R. 443 89, 682, 687 Hordern, E.r jmie (1848), 2 De G. & S. 263 ; 12 Jur. 846 . 206, 240, 245 Hore v. Smith (1850), 14 Jiir. 55 243 Horfield Trust, i,',';|)rtrfe (1881), 29 W. R. 462 235 Home V. Lymington Railway Company (1874), 31 L. T. 167 . . 319 Horrocks v. Metropolitan Railway Company (1863), 32 L. J. Q. B. 367 ; 4 B. & S. 315 ; 8 L. T. 663 ; 11 W. R. 910 ; 10 Jur. N. S. 204 79, 124 V. Metropolitan Railway Company (1865), 19 C. B. X. S. 139 . 117 Horwood's Estate, In re (1861), 3 Giff. 218 223 Hosking V. Phillips (1848), 3 Ex. 168 ; 18 L. J. E.v. 1 ; 5 R. C. 560 ; 12 Jur. 1030 260 Hotham, In re, Hothani r. Doughty [1902], 2 Cli. 575 ; 71 L. J. Cli. 789 ; 87 L. T. 112 ; 50 W. R. 692 702 HouL,diton's Estate, In re (1885), 30 Ch. 1). 102 ; 55 L. J. Ch. 37 ; 53 B."T. 196 ; 33 W. R. 869 203, 703 Howard's Settled Estates, In re [1892], 2 Ch. 233 ; 61 L. J. Ch. 311 ; 67 L. T. 156 ; 40 W. R. 360 711 Howell V. Metropolitan District Railway Company (1881), 19 Ch. D. 508 ; 51 L. J. Ch. 158 ; 45 L. T. 707 ;'30 W. R. 100 . . . 104, 123 How's Trust, In re (1850), 20 L. J. Ch. 422 (n) ; 15 Jur. 266 . . . 205 Huddersfield (Mayor of), Ex porte (1882), 46 L. T. 730 . . . .267 Huddersfield v. Sliaw (1890), 54 J. P. 724 83 Huddersfield Corporation and Jacomb, In re (1874), L. R. 10 Ch. App. 92 ; 44 L. J. Ch. 96 ; 31 L. T. 466 ; 23 W. R. 100 . . . 46, 413 Hungerford, In re (1855), 1 K. & J. 413 ; 1 Jur. X. S. 845 . 31, 205, 214 Hungerford'sTrusts, /» re (1857), 3K. & J. 455 .... 206,245 Hunt's Estate, In re (1884), W. N. 181 217 Hunt r. AVimbledon Local Board (1878), L. R. 4 C. P. D. 48 ; 48 L. J. C. P. 207 21 Hurlbatt V. Barnett and Company [1893], 1 Q. B. 79 ; 62 L. J. Q. B. 1 ; 67 L. T. 818 ; 41 W. R. 33 .678 Hutchins r. Manchester, &c.. Railway Company (1846), 15 M. & AV. 314 ; 15 L. J. Ex. 293 ; 3 R. C. 748 ; 10 Jur. 361. . . . 252, 269 Hutton r. London and South-Western Railway Company (1849), 7 Hare, 259 ; 18 L. J. Ch. 345 ; 13 Jur. 486 156 Hyde r. Mayor of Manchester (1852), 5 De G. & S. 249 ; 16 Jur. 189 . 314 Imperial Gas Light and Coke Company r. Broadbent. See Broadl^ent v. Imperial Gas Light and Coke Company. Inge r. Biiminghani and Soutli-Western Railway Company (1853), 3 De G. M. & G. 658 ; 2 Eci- 1!. 80 ; 2 \\. 1!. 22 \ . ' . . .22 Ingram r. Midland Railway Company (1860). 3 L. T. 533 ... 23 Inland Reyenue Commissioners v. Glasgow and South-Western Bailway Company (1887), 12 A. C. 315 ; 56 L. J. P. C. 82 ; 57 L. T. 570 ; 36 W. R. 241 142 Isitt V. Railway Passengers' Assurance Company (1889), 22 (^). B. D. 504 ; 58 L. J. Q. B. 191 ; 60 L. T. 297 ; 37 W. R. 477 690 Islington Cor])oration v. London Scliool Board [1902], 2 K. B. 701 ; 71 L."J. K. B. 852 ; 87 L. T. 177 ; 18 T. L. R. 657 333 Issauchaud, /!;.'• ^mrte (1839), 3 Y. & C. (Ex.) 721 . . . . .227 lyes and Barker r. Williams [1894], 2 Ch. 484 ; 63 L. J. Ch. 521 ; 70 L. T. 674 ; 42 W. R. 483 ; 7 R. 243 685, 686, 687 Ive.son V. Moore (1697), 1 Lord Raymond, 486 ; 1 Salk. 15 . . . 157 Table of Cases. xxxiii J. PAGE Jackson, Be [1894], W. X. 5n 209, 229 V. Barry Railway Compauv [1893], 1 Ch. 238 ; 6S L. T. 472 ; 2 R. 207 . . ' . / 686 1-. Tyas (1883), 52 L. J. Ch. 830 204 Jame.s v. Attwond (1839), 7 Scott 841 ; 5 Bing. N. C. 628 . . . 680 V. James (1889i, 23 Q. B. D. 12 ; 58 L. J. Q. B. 424 ; 01 L. T. 3M ; 37 W. R. 600 080 Jersey v. Britoii Ferry Floating Dock Company (1869 1, L. R. 7 Eq. 409 ^ . . . . 38, 262 (Earl of) V. Xeath Guardians (1889), 22 Q. B. D. 555 ; 37 AV. R. 388 -113 Jesus College, Cambridge, E.r parte (1884), W. N. 37 ; 50 L. T. 583 . 198, 209 Johnson r. Edgware, &c., Railway Company (1866), 35 Beay. 480 ; 35 L. J. Ch. 322 ; 14 L. T. 45 ; 14 W. R. 416 63 Johnson's Settlements, In re (1869), L. R. 8 E<[. 34S . . . .194 Johnstone v. Crompton & Co. [1899], 2 Ch. 190 ; 68 L. J. Ch. 559 ; 81 L. T. 165 ; 47 W. R. 604 413 Jolitfe's Estate, la re (1870), L. R. 9 E.i. 008 ; 23 L. T. .303 . . 205, 229 Jolly r. Wimbledon and DurkiiiLr Railway Company (1861), 31 L. J. Q'. B. 95 : 1 B. & S. 807 ; 5 L.T. 015 ; \0 ^^'. R. 253 ; Jur. X. S. 1037 314,315 Jones, Ex parte (1880), 14 Ch. D. 624; 43 L. T. s4 . . 2(.)7, 245, 608 r. Lewis (1850), 2 M. & G. 163 2.36 V. South Staffordshire Railway Company (1869), 19 L. T. 603 . 330, 331 r. Stanstea^l Railway Company (1872), L. R. 4 P. C. 98 ; 41 L. .J. R C. 19 ; 26 L. T. 450 ; 20 \V. R. 417 . . . . 253, 257 c. Victoria Graving Dock Comi^any (1877), 2 Q. B. D. 314 ; 40 L. J. Q. B. 219 ; 36 L. T. 347 ; 25 W. R. 501 19 Jones's Settled Estates, lie (1858), 6 W. R. 762 2.30 Jones's Trust, In re (1870), 39 L. J. Ch. 190 ; 18 W. R. 312 . . . 234 Jordeson v. Sutton, Soutlicoates,and Drypool Gas Company ^1899], 2 Ch. 217 ; 68 L. J. Ch. 457 ; 80 L. T. 81.5 ; 03 J. P. 092 . . . .573 Jubb V. Hull Dock Company (1846), 9 Q. B. 443 ; 15 L. J. g. B. 403 ; 3 R. C. 795 ; 11 Jur. 15 ' l^~ K. Keatley, Ex parte (1890), 25 L. R. Ir. 205 250 Keep V. St. Martin's, Xewington [1894^ 2 Q. B. 524 ; 63 L. J. Q. B. 369 ; 70 L. T. 509 ; 58 J. P. 748 . 40- Keighley, Maxted & Company, and Durant & Company, In re [1893], 1 Q. B. 405 ; 62 L. J. Q. KH)5 ; 70 L. T. 155 . . 107, 678, 682, 692 Kelland c. Fulford (1877), Ch. D. 491 : 47 L. J. Ch. 94 ; 25 W. R. 506 192, 193, 199 Kellett r. Tranmere Local Board (1864), 34 L. J. Q. B. 87 ; 14 L. T. 457 521 Kelly, i:.';^o./^: ri893j. 31 L. R. Ir. 137 23.3,2.50 Kelner v. Baxter (1866), L. R. 2 C. P. 175 ; 36 L. J. C. P. 94 ; 15 L. T. 313 ; 15 \V. R. 278 ; 12 Jur. X. S. 1016 20 Kemp v. London, Brighton, and South Coast Railway (1838), 1 R. C, 495 ; 3 Jur.' 403 ^18 V. South-Eastern Railway Comjiany (1872), L. R. 7 Ch. App. 304 ; 41 L. J. Ch. 404 ; 26 L. T. 110 ; 20 W. R. .306 . 20, 58, 60, 313 V. West End of London an.l Crystal Palace Railway Company (1855\ 1 K. & J. 081 ; 3 \V. R. 007 '; 1 Jur. X. S. 1012 . . 46, .302 Kensey,'//i )■< (1863), 1 X. R. .303 ,• _• -^^ Kerford r. Seacombe, &c., Railway Company 1 1888 1. 57 L. J. Ch. 2.0 58 L. T. 445 ; 36 W. R. 431 ; 52 J. P. 487 272 Kerr v. Ailsa (1854), 1 Macq. H. L. 7.36 Kilworth RiHe Range, In re [1899], 2 Ir. L. R. 305 King Edward YI.'s Almshouses, In re (1868), 37 L.J. Ch. 664 ; 19 L. T 80 ; 16 W. R. 841 L.C. C 12 152 210 xxxiv Tahle of Cases. PAGE Kind's College, Cambritlge, Ex parte (1852), 5 De G. & Sni. 621 . 210, 238 ^[18911, 1 Ch. 333, (577 ; 60 L. J. Cli. 508 ; 64 L. T. 623 ; 39 W. R. 331 195 Kiiii,''^ Leasehold Estate, Li re (1873), L. K. 16 Eq. 521 ; 29 L. T. 288 ; 21 W. R. 881 C3, 73, 309 King's Lvnn (Mayor of) v. Peiiil)eiton (1818), 1 Swaiist. 244 . . 44 King V. Wycombe Railway Company (1860), 28 Beav. 104 ; 29 L. J. Cli. 462 ; 6 Jur. X. S. 239 ..."'... 69, 273, 274, 277, 280 Kirbv V. Harrogate School Board [1896], 1 Ch. 437 ; 65 L. J. Ch. 376 ; 74'L. T. 6 ; 60 J. P. 182 562 Kirkleatham Local Board, In re [1893], 1 Q. B. 380 ; 62 L. J. Q. B. 180 ; 67 L. T. 811 ; 57 J. P. 421 690, 695 Kirksmeaton (Rector of), Ex parte (1882), 20 Ch. D. 203 ; 51 L. J. Ch. 581 ; 20 W. R. 539 196 Kitts V. Moore [1895], 1 Q. B. 253 ; 64 L. J. Ch. 152 ; 71 L. T. 676 ; 43 W. R. 84 80, 86, 189, 687 Knap]i r. London, Chatham, and Dover Railway Company (1863), 2 H. & C. 212 ; 32 L. J. Ex. 236 ; 8 L. T. 541 ; 11 W. R. 890 ; 9 Jur. K. S. 671 156, 185, 253 Kniglit i: The Tabernacle Permanent Building Society [1892], 2 Q. B. 6i3 ; 62 L. J. Q. B. 33 ; 67 L. T. 403 ; 41 ^Y. R. 35 ; 57 J. P. 229 . 97, 684, 690, 696 Knight and the Tabernacle Permanent Building Society's Arbitration, In re [1892], A. C. 298 ; 62 L. J. Q. B. 50 ; 67 L. T. 483 ; 41 W. R. 207 ; 56 J. P. 709 678 Knock V. :\Ietropolitan Railway Company (1868), L. R. 4 C. P. 131 ; 38 L. J. C. P. 78 ; 19 L. T. 239 ; 17 W. R. 10 181, 360 Knowles r. Lancashire and Yorkshire Railway Company (1889), 14 A. C. 248 ; 61 L. T. 91 ". . 416,418,683 Knowles & Sons r. Bolton Coriwration [1900], 2 Q. B. 253 ; 69 L. J. Q. B. 481 ; 82 L. T. 229 ; 48 W. R. 433 .... 81, 521, 691 L. Laird r. Birkenhead Railway Company (1840), 29 L. J. Ch. 218 ; 6 Jur. N. S. 140 20 r. Pirn (1841), 7 M. &W. 714 ; 10 L. J. Ex. 259 . . . .103 Lamacraft r. St. Thomas Rural Sanitary Authority (1880), 42 L. T. 365 ; 44 J. P. 441 522 Lamb r. North London Railway Company (1869), L. R. 4 Ch. App. 522 ; 21 L. T. 98 ; 17 W. R. 746 .'^ . . 52 Lambert v. Dublin, &c.. Railway Company (1890), 25 L. R. Ir. 163 . 259 Lambeth (Rector of). Ex parte (1846), 4 R. C. 231 217 Lambton, Ex parte. See Pile v. Pile. Lancashire and Yorkshire Railway Company, Ex parte (1886), 55 L. T. 58 267 In re (1849), 6 R. C. 150 206, 245 r. Bury (1889), 14 A. C. 417 ; 59 L. J. Q. B. 85 ; 61 L. T. 417 ; 36 W. R. 491 386 V. Evans (1851), 15 Beav. 322 ; S. C. at law, 1 El. & PI. 754 ; 22 L. J. Q. B. 254 ; 17 Jur. 878 4, 179, 231 Li re, Slater v. Slater [1895], 64 L. J. Ch. 688 ; 72 L. T. 627 . 209, 229, 247 Lancashire Brick and Terra Cotta Com])anv, Limited v. The Lancashire and Yorkshire Railway Company [1902], 1 K. B. 651 ; 71 L. J. K. B. 431 ; 86 L. T. 176 410 Lang V. Glasgow Court-House Commissioners (1871), 9 (!'t. of Sess. Cas., 3rd series, 768 120 V. Kerr (1878), 3 A. C. 529 18 Lmgford v. Brigliton, Lewes and Hastings Railway Coujpanv (1845), 4 R. C. 65 ". . .253 Langliam v. Great Northern Railway Company (1847), K! L. J. Cli. 437 ; 1 De G. & Sm. 486 ; 5 R. C. 263 . . . . . 138, 257, 260, 261 Tdhlc of ( Vrsv'.s'. XXXV 1'A(;e Lannuth and Lees, Ex parte (1894), 10 'I\ L. 11. 225 .... GIO Lascellesv Swansea School J'>oai. 043 ; 20 L. J. Q. B. 293 ; R. C. 050 ; 15 Jiir. 052 .... 171, 179, 373 Lawson, i«jxn-/e (1869), 17 \V. R. 180 232 Lea, Ex parte Rector of, (1852), 21 L. .1. Ch. 770 209 Lee and Hemingway, In re, (1883), 24 Ch. 1). 009; 49 L. T. 155 ; 32 AV. R. 220 230 Lee V. Milner (1837), 2 M. & AV. 824 ; 2 Y. 6c C. (E.x.) (;18 ; M. & H. 275 ; L. J. Ex. 205 51 Leeds Grammar School, //t re [1901], 1 Ch. 228 ; 70 L. J. Ch. 89 ; 83 L. T. 499 ; 49 AV. 1!. 120 ; 05 J. P. 88 232 Leeson r. (iencral jNIedical Council (1890), 43 Ch. 1). 300; 59 L. J. Ch. 233 ; 01 L. T. 849 ; 38 W. R. 303 .13 Legs '('. ]3eltast and Ballymena Bailwav Comiianv (1850), 1 Ir. ('. L. 124 -34 Leg"-ot.t r. Alctropolitan Railway Comi)any (1870), L. R. 5 Ch. 710 ; 18 AV. R. 1000 . . . . " 28 Legh's Settled Estates, //;. re [1902], 2 Ch. 274 ; 71 L. J. Ch. 008 ; 80 L. T. 884 ; 50 W. R. 570 ; 00 .1. P. 000 713 Leigh'.s Estate, In re (1871), L. R. Ch. App. 887 ; 40 L. J. Ch. 087 ; 25 L. T. 044; 19 AV. R 1105 194,205,243 Letsom n Bickley (1815), 5 M. c^: S. 144 114 Levick and the Epsom and Leatlicrhcad Railway Company, In re (1859), 1 L. T. GO ; 8 W. R. 60 . . . . " . / . . .94 Lewis V. South AVales Railway Company (1853), 10 Hare, 113 ; 22 L. J. Ch. 209 ; 1 AV. R. 45 ; 10 Jur. 1149 " 25 Lictch and Kewney (1867), 15 W. P. 1055 249 Lincoln Corporation, K.<- inutc (1851t, 21 L. J. Ch. G21 ; R. C. 738 . 293 Lind r. Isle of Wight Ferry Company (1862), 1 N. R. 13 ; 7 L. T. 410 . 08, 82 Lindsay c. Direct Portsmouth Railway Company (1850), 19 L. J. (-^>. B. 417 ; 1 B. C. C. 529 ; 15 Jur. 224 104,108 Lipi.incott v. Smvth (1860), 29 L. J. Ch. 521 ; 8 AV. R. 330 ; Jur. N. S. 811 .. " 30, 32 Lisburn's (Earl of) Settled Estates (1901), AV. N. 91 . . . 704, 714 Lister v. LoLlev (1837), 7 A. & E. 124 489 Listers Hospital, l,i re (1855), De G. M. & G. 184 ... . 206 Little V. Ne^yport, &c.. Railway Comjumy (1852), 22 L. J. C. P. 39 ; 12 C. B. 752 ; 7 R. C. 280 ; 17 Jur. 209 305 Littler v. Rhyl Improyement Comuiissioners (1878), AV. N. 219 . . 278 Little Steeping, ;<;./; ^/ro/t' Rector of (1848), 5 R. C. 207 . . . .214 Littlewood r. Pattison (1864), 10 Jur. N. S. 875 217 Liyerpool Corporation, K.r parte {ISQG), L. R. 1 Ch. App. 59(5 ; 35 L. J. Ch. 655 ; 14 L. T. 785 ; 14 AV. R. 900 19 LiveriKJol Improvement Act, In re (1868), L. R. 5 Eq. 282 ; 37 L. J.Ch. 370 ; 10 AV. R. 667 250 LiyerpooUMayor ol) r. Chorley fl852), 2 ])e G. M. & G. 852 . . 51 Liveri)ool, is.'-^wWc, Rector of (1870), L. R. 11 Eq. 15 ; 40 L. J. Ch. 65 ; 23 L. 'J\ 354; 19 AV. R. 47 206 Liyerjiool, &c.. Railway Company, In re (1853), 17 P>eay. 392 . . 237 Llewellyn r. A'ale of Glamorgan Railway Con)pany [1898], 1 (,). B. 473 ; 67 L. J. Q. B. 305 ; 78 L. T. 70 ; 40 AV. R. 290 393 Lloyd and the North London Railway Act [1896], 2 Ch. 397 ; 65 L. J. Ch. 020 ; 74 L. T. 548 ; 44 AV. R. 522 234 Lloyd, In re, Edwards r. Lloyd, AV. N. (1886) 37 ; 54 L. T. 043 . . 699 Lockwood, ii',/.,2>«r?t' (1851), i4 Beav. 158 194 c 2 xxxvi Tahh' of Cases. PAGE Luiuax, In re (1864), 34 Beav. 294 237 London ami BirminKliam Bailway Companv r. Winter (1840), Cr. & Ph. London aiul Blackwall Bailway Company v. Cross (1886), 31 Cli. D. 354 ; 55 L. J. Ch. 313 ; 54 L. T. 309 ; 34 W. B. 401 . 80, 86, 188 V. Letts (1851), 3 H. L. C. 470 ; 15 Jur. 995 163 London and I'.iiK'liton Bailwav Company, In re (1854), 18 Beav. 608 . 238, Lundon and Greenwich Bailwav Company, In re (1835), 2 A. & E. 678 ; 4 L. J. K. B. 103 ; 4'N. & M. 458 121, 122 //( re, Ex parte Adder's Charity (1843), 3 Hare, 22 ; 12 L. J. Ch. 513 ; 3 B. C. 119 251 i: Goodchihl (1844), 13 L. J. Ch. 226 ; 3 B. C. 507 ; 8 Jur. 455 . 329 London and Xorth-Western Bailway Company, Ex imrte (1887), ^Y. X. 128 267 . la re (1852), 1 W. B. 60 210 //( re (1872), 26 L. T. 687 266 c. Ackrovd (1862\ 31 L. J. Ch. 588 ; 10 ^Y. B. 367 ; 8 Jur. N. S. 9ir. . ' -118 r Bradlev (1849), 3 M. & G. 336 ; 6 B. C. 551 ; 15 Jur. 639 . 166 r. Evans [1893], 1 Ch. 16 ; 62 L. J. Cli. 1 ; 67 L. T. 630 ; 41 W. B. 149. -118 r. Lancaster Corporation (1851\ 15 Beav. 22 ; 16 Jur. 677 . . 192 i: 0"wen District Council (1899), 80 L. T. 401 ; 63 J. P. 295 372, 37 < r (^)uick, (1848\ 18 L. J. Q. B. 89 ; 5 D. & L. 685 ; 5 B. C. 520 . 98 I- Buncdru Bural Council [1898], 1 Ch. 561 ; 67 L. J. Ch. 324 : 78 L. T. 343 ; 46 W. B. 484 ; 62 J. P. 643 403 i: Skirton Township (1864), 33 L. J. M. C. 158 ; 5 B. & S. 559 ; 10 L. T. 648 ; 12 W. B. 1102 386 V. Walker [1900], A. C. 109 ; 69 L. J. Q. B. 367 ; 82 L. T. 93 ; 48 W. B. 384 ; 64 J. P. 483 75, 102, 103, 693 r. West (1867), L. B. 2 C. P. 553 ; 36 L. J. C. P. 245 . . . 32a r. Wetherall (1851), 20 L. J. Q. B. 337 ; 15 Jur. 247 .. . 396 London and South- Western Bailway Companv, Ex i>arte (1859), 38 L. J. Ch. 527 ' 137 c. Blackmore (1870\ L. B. 4 H. L. 610 ; 39 L. J. Ch. 713 ; 23 L. T. 504 ; 19 W. B. 305 . . . . 282.320,327,328,329 r. Gomni (,1881), 20 Cli. D. 562 ; 51 L. J. Ch. 530 ; 46 L. T. 449 ; 30 \V. B. 620 . . 324 London Association of Shipowners v. London and India Docks Joint Committee (1892), 3 Ch. 242 ; 62 L. J. Cli. 294 ; 67 L. T. 238 ; 2 B. 23 539 London .'Bishop ol). Ex purte (1860), 29 L. J. Cii. 575 ; 2 De G. F. & J. 14 ; 2 L. T. 365 ;8 W. B. 4(55 ; 6 Jur. X. S. (;40 . . 197,239,245 London, Brighton and South-Coast Bailway Company, //( re, Ex iMirti' Flower, ^ee Ex intrte Flower. r. Truman (1885), 11 A. C. 45 ; 55 L. J. Ch. 354; 54 L. T. 2.50 ; 34 W. B. 657 ; 50 J. P. 388 168, 373 London, Chatham and Dover Bailway (Company v. Wandsworth Board of Works (1873), L. B. 8 C. P. 185 ; 42 L. J. M. C. 70 . . . 399 London Cori)oration, Ex parte (1868), L. B. 5 Erp 418 ; 37 L. J. Ch. 375 ; 17 L. T. 439 ; 16 W. B. 355 .... 197, 239, 244 i:-'.,w(;7c (1900), 17 T. L. 1!. 232 709 Ex parte (1883), 25 Ch. D. 384 ; 53 L. J. Ch. 6 ; 49 L. T. 437 ; 32 W. B. 87 208 V. St. Andrew's, Holboni (1867), L. B. 2 C. P. 574 ; 30 L. J. M. ( '. 95 ; 16 L. T. 665 ; 15 \V. B. 92S 334 London Couiity Council, In re. Ex parte Pennington (1901), 84 L. T. 808 ; 17 T. L. B. 614 ; 65 J. P. 536 195 London School Board v. Smith (1895), AV. X. 37 . . . . 55, 562 r. South-Eastern Railway Company (1887), 3 T. L. B. 710 . . 148 London Street, Greenwich, and the London, Chatham, and Dover Bailway Act, 1881, In re (1888\ 57 L. T. 673 .... 197, 239 London, Tilhiiiv, and Southend Haih'av Coiii]iai)v. /•,'.'' parte (1852), 1 AV. B. .533 .' 261 T((hle of Cases. xxxvii PAGE London, Tilburv, &c. , Eaihvav C'ouipanv and Gowei's AValk Sclioids, In re (1890l,'24 Q. B. D. 326 ; 59 L. J. Q. B. 1G2 ; 02 L. T. :3<)6 ; 38 W. 11. 343 .J5, 181, 585 Loni,' Katon Reci'eati(jn Grounds Company r. Midland Railway Company [1902], 2 K. B. 597 ; 71 L. J. K. B. 837 ; 86 L. T. 873 ; 5u W. B. 693 182 Lon<;'s Estate, //I ?Y' (1853', 1 W. R. 226 240 Lonjr's Trnsts, In re (1864\ 33 L. J. Cli. 620 ; 10 L. T. 21 ; 12 W. R. 460; 10 Jnr. y. S. 417 229 Longworth, In re (1853), 1 K. & J. 1 243 Loosemoie v. Tiyerton and North Deyon Raihvay Company. .SVe Tiverton, &c., Railway Company c. Loosemore. Lord r. Lee (1868), L.'R. 3 Q. B. 404 ; 9 B. & S. 269 ; 37 L. J. Q. B. 121 ; 16 W. R. 856 81, 521, 683, 691 Longhton, Ex varte, Rector of (1849). 5 E. C. 591 ; 14 Jur. 102 . . 212 Loyeband's Settled Estate?, In re (1861). 30 L. J. Cli. 94 . . . 238 Loyering r. City of London and Suutiiwark SuLwav Conipany (1891 1. 7 T. L. R. 600 '..'.. 73, 681 Low r. Staines Reservoirs Joint Committee (1900i, (;4 J. P. 212 : 16 T. L. R. 184 . . . 273 Lowestoft (Manor of) and Gieat Eastern Railway Cumiianv : Ex '[larte Reeve (1883|, 24 Cli. 1). 253 ; 52 L. J. Cli. 912; 49 L. T. 523 ; 32 W. R. 309 225 Lowndes's Trnst, In re (1851), 20 L. J. Cli. 422 205 Lowry's Will, Iti re (1872), L. R. 15 Eq. 78 ; 42 L. J. CIi. 509 : 21 W. R. 428 33 Lowther v. Caledonian Railway Company [18921, 1 Cli. 73 ; 61 L. .1. Cli. 108 ; 40 W. R. 225 . . . \ . ^ . . . . 2;s6, 693 Lund V. Midland Railway Company (1865), 34 L. J. Cli. 276 . . 50 Lnrgan L'rban District Council, Ex parte [1902], 1 I. R. 157 . 234, 250 Luscomlie r. Great Western Railway Company [1899], 2 g. B. 313 ; 68 L. J. Q. B. 711 ; 81 L. T. 183 404 Lycett V. Stalford and Cttoxeter Raihvay Compjany '1872', L. E. 13 Ei^. 261 ; 41 L. J. Ch. 474 ; 25 L. J. 870 '. . \^ . ' . . 24, 264 Lye's Estates, /h re (1866), 13 L. T. 664 241 Lymington Baptist Chapel, In re (1877), W. N. 226 . . . .195 Lynch v. Commissioners of Sewers (1886), 32 Cli. D. 72 ; 55 L. J. Ch. 409 ; 54 L. T. 669 ; 50 J. P. 548 69, 469, 470 Lyon V. Fishmongers' Company (1876), 1 A. C. 662 ; 46 L. J. Ch. 68 ; 35 L. T. 569 160 Lytton V. Great Northern Railway Company '1856\ 2 K. ^.K: ,J. 394 : 4 W. R. 441 ; 2 Jur. N. S. 436 \ . .^ . ' . . . . 22 M. Macaulay, Ex -parti'. In re Lancashire and Yorkshiie Railway C'omi>aiiv (1854 i, 23 L. J. Ch. 815 ; 2 W. R. 667 '. 198 Macey v. Metropolitan Boanl of Works (1864\ 33 L. J. Cli. 377 ; 10 L. T. 66 ; 12 AV. R. 691 ; l(t Jur. N. S. 333 . ' . 55, 56, 156, 161), 254, 563 Macfie r. Callender an May r. Dow.-^e (1884\ AV. X. 122 208 r. Harcourt (1884), 13 Q. ]}. D. 688 .... 81,683,691 Melksham Urban District Council v. (Jay (1902), 18 T. L. R. 358 . . 372 Mellin- r. Bird (1853). 22 li. J. Ch. 509 ; 17 Jur. 155 . . . 233, 234 Menzies 1-. Earl of Breadalbane (1822), 1 Shaw A]>]). 225 . . .412 Mercer /•. Liverjiool, St. Helen's and South Laiicasiiire Railwav Company [1903], 1 K. B. ()52 ; 72 L. J. K. B. 128 ; 51 AV. R. .308 ; 67 J. P. 77 ; 19 T. L. R. 210 : overrulinj,' [1901], 2 K. 1!. 753 ; 70 L. J. K. B. 775 ; 85 L. T. 283; .50 AV. R. 1.55 179 Merceron, In re (1877), 7 Ch. D. 1H4 ; 17 L. .1. Ch. 1 14 ; 38 L. T. 15 ; 26 AV. R. 87 479 Mercers' Com])anv, /•;.'; jutrtc (1878), 10 Ch. 1). 481 ; 48 L. J. Ch. 3S1 ; 27 AV. R. 424 " . 230, 479 Merchant Tavlors' Cnm])anv (1847), 10 Beav. 485 236 , In rr (18851. 3 • ( 'ii. D. 28 ; 52 L. T. 775 ; 33 AV. R. 775 . 246, 249 Merrett, A'..^/<'//' (I860), 2 L. T. 471 310 Merton CoUe^'e, In re (1863), 1 D. J. .^ S. 361 243 TaJilc of Cases. xxxix PAGE Metropolitan Asvlnm Boaid v. Hill (1880 1, G A. C. 193; r>0 L. J. Q. B. 353 ; 44 L. T.' 6.-)3 ; 29 W. R. 617 573 Metiopulitan Board of AVorks i: Howard (1889), 5 T. L. R. 732 . 104, 128, 160, 175, 176 r. McCarthy (1874), L. E. 7 H. L. 243 ; 43 L. J. C. P. 385 ; 31 L. T. 182 ; 23 W. R. 115 156,157,164,361 i: Metropolitan Railway Companv (1869), L. R. 4 C. P. 192 ; L. P.. 3 C. P. 612 ; 37 'L. J. C. P. 281 ; 19 L. T. 744 ; 17 W. R. 416 1G5, 489 v. Salisbury (1872), 26 L. T. 390 ; 20 W. E. 507 . . . .104 Metropolitan District Piailwav Company and Cosh, In re (1879 1, 13 Ch. D. 607 ; 49 L. J. CI). 277 ; 42 L. T. 73 ; 28 W. R. 685 . . 318 Metroi)olitan Distiict Railway and Cotton's Tni.stees, /;i re (1881). 45 L. T. 103 . . . ' Ill Metropolitan District Railway v. Sliarpe (1880), 5 A. C. 425 ; 4 Q. B. D. 645 ; 50 L. J. Q. B. 14 ; 43 L. T. 617 ; 29 W. R. 617 ; 44 J. P. 716 5, 13, 99, H)0, 101, 131, 135, 1911 Metropolitan Railway Company, Ex ^mrte (1868), 16 W. R. 996 . . 211 V. Defries (1877), 2 (^ B. D. 3^7 ; 36 L. T. 494 ; 25 AV. R. 841 . 28 r. Maire, In re (1876), W. X. 245 240 v. Fowler [1893], A. C. 416 ; 62 L. J. Q. B. 553 ; 69 L. T. 390 ; 42 W. R. 27' > ; 57 J. P. 756 ; 1 R. 264 . . . . 9, 319 (-. Tnrnham (1863), 32 L. J. M. C. 249; 14 C. B. X. S. 212 ; 8 L. T. 280 ; U W. R. 695 . . . 111,130,131,133,134 v. Woodhouse (1865), 34 L. J. Ch. 297 ; 12 L. T. 113 ; 13 W. R. 516 ; 11 Jur. X. S. 296 «•"> Mette's Estate, In re (1868), L. R. 7 E>[. 72 ; 38 L. J. Ch. 445 . . 215 M'Eyoy c. Great Xortliern Railway Company [1900], 2 Ir. R. 325 . 374 Midland Counties Railway Company v. Oswin (1844i, 13 L. J. Cli. 209 ; 1 Coll. 80 ; 3 R. C. 497 ; 8 Jur. 138 192 Midland Great Western Railway Company, In re (1881), 9 L. R. Ir. 10 . 229 Midland Railway Comj.any, Ex parte (1894), AV. X. 38 . . . 266, 267 ,//« /v; (18471, 11 Jur. 1095 210 r. Checkley (1867), L. R. 4 E.p 19 ; 36 L. J. Ch. 380 ; 10 L. T. 260; 'l5 AV. R. 671 413 V. Dakyn (1855). 17 C. B. 126 ; 25 L. J. C. P. 73 ; 4 AA'. R. 16 . 4(»4 V. Gribble [1895], 2 Ch. 827 ; 64 L. J. Ch. 826 ; 73 L. T. 270 ; 44 AA^ R. 133 ; 12 R. 513 402 v. Haunchwood Brick an.l Tile Company (1882), 20 Cii. D. 552 ; 51 L. .J. Ch. 778 ; 47 L. T. 151 ; 30 AA\ R. 62s . . 412,417 c. Alilcs (1886), 33 Ch. D. 632 ; 55 L. J. Ch. 745 ; 55 L. T. 482 ; 35AV. R. 76 417,420,422 r. Robinson (1889), 15 A. C. 19 ; 59 L. J. Ch. 44 ; 62 L. T. 194 ; 38 AV. R. 577 412, 41.->, 417 Miles c. Great AA'estern Railway Company [1896], 2 Q. B. 432 ; 65 L. J. Q. B. 649 ; 75 L. T. 290' . . " 98 Milford Docks Company, //( re il883i, 23 Cli. D. 292 ; 52 L.J. Cli. ,74 : 48 L. T. 560 ; 31 A\\'R. 715 106 Millard's Settled E.states, I,, re [1893], 3 Ch. 116 ; 62 L. J. Ch. <61 ; 69 L. T. 202 ; 41 AA\ R. 577 ; 9 T. L. R. 514 705 Mills' Estate, In re (1886), 34 Ch. D. 24 ; 56 L. J. Ch. 60; 55 L. T. 465 ; 35 AA'. R. 65 ; 51 J. P. 151 5, 230, 231, 479 Mills V. East London Union (1872), L. R. 8 C. P. 79 ; 42 L. J. C. P. 46 ; 27 L. T. 557 ; 21 AV. R. 142 33, 310 Milne's Estate (1863), 8 L. T. 199 . . ^09 Milnes, In re (1875), 1 Ch. D. 28 ; 34 L. T. 46 ; 24 AV. 1!. 98 . . 192 Mitchell, In re (1881), 17 Ch. D. 515 ; 45 L. T. 60 .... 245 Money's Trust, In re (1862), 2 Dr. & Sm. 94 ; 31 L. J. Ch. 496 ; 10 AV. R. 399 . 218 Montgomery and C'oni])any and Liebenthal (1898), 78 L. T. 406 . . 695 Moody ,-. Corbett (1866).' L. R. 1 Q. B. 510; 35 L. J. Q. B. 161 ; 14 ' AV. R. 737 ; 34 L. J. Q. B. 166 ; 5 B. & S. 859 . 322, 323, 326 c. London, Brighton, and South Coast Railway Company (1861), 31 L. J. (,). B. 54 ! 1 B. & S. 290 ; 9 AV. R. 780 321 xl Table of Cases. PAGE Moore v. Great Soutbeni and "Western Railway Company (1858), 10 Ir. C. L. R. 46 "^ . . . . . 160 Mordue v. Palmer (1870), L. R. 6 Ch. -22 ; 40 L. J. Ch. 8 ; 23 L. T. 752 ; 19 W. R. 86 . . . . . . . . . . 692 M(ir"aii anil the L'indon and Korth-Wefstern Railway Company, In re [1896J, 2 Q. B. 469 ; 66 L. J. Q. B. 30 ; 75 L. T. 226 ; 45 W! R. 1 76 151 Morgan i: Metropolitan Railway Com])any (1868), L. R. 4 C. P. 97 ; 38 L. J. C. P. 87 ; 19 L. T. 655 ; 17 W. R. 261 . . 67, 75, 115, 148, 307 • r. lUlman (1853), 2 De G. M. and G. 24 ; 22 L. J. Cli. 897 ; 1 W. R. 143 ; 17 Jur. 193 23 Morris, Ex imrte (1871), L. R. 12 Eq. 418 ; 40 L. J. Ch. 543 ; 25 L. T. 20 ; 19 AV. R. 943 228 ■ V. Tottenham Railway Company [1892], 2 Ch. 47 ; 61 L. J. Ch. 215 ; 66 L. T. 585 ; 40 \V. R. 310 371, 379 Morris's Settled Estates, In re (1875), L. R. 20 Eq. 470 ; 45 L. J. Ch. 63 ; 23 W. R. 851 206, 245 Mortimer r. South "Wales Railway Company (1859), 1 E. & E. 375 ; 28 L. J. Q. B. 129 ; 7 "W. R. 292 fs Jur. N."'S. 784 . . 104, 126, 128, 161 Morton's Estate, /h yv- (1874), "W. N. 181 200 Mulliner r. Midland Railway Company (1879), 11 Ch. D. 611 ; 48 L. J. Ch. 258 ; 40 L. T. 121 ; 27 W. R. 330 .. . 54^ 319, 325 Mundy's Settled Estate [1891], 1 Ch. 399 ; 60 L. J. Ch. 273 ; 64 L. T. 29 ; 39 W. R. 209 700, 705 Municipal and Freehold Land Company v. Metropolitan and District Railway Joint Committee (1883), 1 C.\K: E. 184 63 Munns i'. Isle of "Wight Railway Comjiany (1870), L. R. 5 Ch. Apji. 414 ; 39 L. J. Ch. 522 ; 23 L. T. 96 ; 18 W.R. 781 . . 24, 106, 262, 263 IMutlow's Estate, In re (1878), 10 Ch. D. 130 ; 48 L. J. Ch. 198 ; 27 "W. R. 245 267 N. Nadix, i:.c^)arfc(1848), 17 L. J. Ch. 421 310 Nash V. Coombs (1868), L. R. 6 Eq. 51 ; 37 L. J. Ch. 600 ; 16 W. R. 663 293, 295 r. Nash (1868). 37 L. J. Ch. 927 ; 16 "W. R. 1105 . . . .205 , In re (1856), 25 L. J. Ch. 20 ; 1 Jur. N. S. 1082 . . . .245 Nash'sEstate, //I /•(.' (1855), 4"W. R. HI 250 Neale v. Ledger (1812), 16 East 51 89 Neath and Brecon Railway Company, Ex parte (1876), 2 Cli. D. 201 ; 45 L. J. Ch. 196 ; 24 W. R. 357 259, 414 , In re (1874), L. R. 9 Ch. App. 263 ; 43 L. J. Ch. 277 ; 30 L. T. 3 ; 22 W. R. 242 247, 264 Nether Stowey Vicarage, //( re (1873), L. R. 17 ¥.>[. 156 ; 29 L. T. 604 ; 22 "W. R. 108 , " 195 Newljold and Metropolitan Railway Comi)auy, In re (1863), 14 C. B. N. S. 405 ." 79 Nfwcastif Roads (Trustees of) r. North Stallbrdshire Railway Company (I860), 5 H. & N. 160 : 29 L. J. ^L C. 150 ; 8 "W. R. 216 . . . 386 New Moss Colliery C!ompany r. ^Lanchester, Sheffield, and Lincolnshire Railway (Company [1897], 1 Cli. 725 ; 66 L. J. Ch. 381 ; 76 L. T. 231 ; 45 "W. R. 493 418 New Riyer Company v. Johnson (1859), 2 E. & E. 435 ; 29 L. J. M. C. 93 ; 6 Jur. N. S. 374 166, 453 V.Midland Railway Company (1877), 36 L. T. 539; 25 W. II. 502 63, 446 Newton Heath (Rector of). Ex parte (1896), 44 W. R. 645 . . . 195 Newton v. Metropolitan Railway Company (1862), 8 Jur. N. S. 138 . 192 Newtoji's Settled Estates, In ?y"(1890), (U I>. T. 787 ; "W. N. 24 . . 711 NicholTs Trust Estate, In re (1866), 35 L. J. Ch. 516 ; 14 W. J{. 475 . 229 Nock r. Nock (1879), W. N. 125 233, 234 Norfolk Clergy, i'.-jyar/e Goyernor.s, &c., of (18821, W. X. 53 . . 201 Tabic of Cases. xli PAGE Norfolk's (Duke of) Estates, In re [1900], 1 Cli. 461 ; 09 L. J. Cli. 23G ; 82L. T. 613; 48 W. E. 328 706 Normanton Gas Company v. Pope (1882), 52 L. J. Q. B. 629 : 32 W. I!. 134 465, 489 Xorth and South-AVesteni Junction Eailwav Cunijiany v. Brentfuid (1889), 58 L. J. M. C. 95 ; 13 A. C. 592 ; 60 L. T. 274 .. . 690 North British Eailway Company v. Tod (1846), 12 CI. & F. 722 ; 4 R. C. 449; 10 Jur. 1075 . / 45 North-Easteru Railway Company v. Cro^^sland (1863), 32 L. J. Ch. 353 ; 4 De G. F. & J. 550 ; 7 L. T. 765 ; 11 \V. R. 83 ; 1 X. R. 72 . .418 North London Railway Company r. Great Northern Railway Com];)any (1883),11Q.B.D.30 ; 52 L. J. Q. B. 380 ; 48 L. T. 695 ; 3lW. R. 490 86, 6s7 V. Metropolitan Board of Works (1859), 28 L. J. Cli. 909 ; 1 John. 405 ; 5 Jur. N. S. 1121 ; 7 W. R. 640 . . 53, 165, 264, 489, 525 North London Railway Company, //( re,Ex ixirte Hayne (1865), 12 L. T. 200; 13 W. R. 492 ^ . . . .122 Nortli Shore Railway Company v. Piou (1889), 14 A. C. 612 ; 61 L. T. 525 16(1, 257 North Staffordshire Railway Company v. Dale (1858), 27 L, J. M. C 147 ; 8 E. & B. 836 ; 4 Jur. N. S. 631 ...... 3S6 North Staffordshire Railway Company and Landor, In re il848), 2 E.x. 235 ; 17 L. J. Ex. 350 ; 6 R. C. h"' . . . . . . 72, 108 North Staffordshire Railway Company v. Wood (1848), 2 Ex. 244 ; 17 L. J. Ex. 354 lOS Northwick, Ex parte (1834), 1 Y. & C. (Ex.) 166 . . . . 193, 238 Norton v. London and North-Western Railway Company (1879), 13 Ch. D. 268 ; 41 L. T. 429 ; 28 W. R. 173 . . . " . . 318, 326 Notley V. Palmer (1866), L. R. 1 Eq. 241 ; 13 L. T. 647 : 14 ^\. R. 170; 11 Jur. N. S. 968 202 Nuttall i: Mayor of Manchester (1891), 8 T. L. R. 513 .... 686 Nutter r. Accrington Local Board (1878), 4 Q. B. D. 375 ; 48 L. J. Q. B. 487 ; 40 L. T. 802 523 O. Oldham's Estate, //( re (1871), W. N. 190 214 Oliyer and Scott, In re (1889\ 43 Ch. U. 310 ; 59 L. J. Ch. 148 ; 61 L. T. 552 ; 38 W. R. 476 . ' 692 Oli ' ■ O liye's Estate, In re (1890), 44 Ch. D. 316 ; 59 L. J. Cli. 360 ; 62 L. T. 626 ; 38 W. R. 459 207, 242, 245, 709 nslow V. Manchester, Sheffield and Lincolnshire Railway Company (1895), 64 L. J. Ch. 355 ; 72 L. T. 256 . . . \ . \ 319 Ormrod's Settled Estates, In re [1892], 2 Ch. 318 ; 61 L. J. Ch. 651 ; 66 L. T. 845 ; 40 W. R. 490 214,710,712 Orwell Park Estate, In re (1894), \V. N. 135 705 Osborne v. Skinners' Company (1891), 60 L. J. M. C. 156 ; 39 W. R. 715 586 Ossalinski v. Manchester Corporation, unreported ..... 143 Ostler r. Cooke (1849\ 13 (,>. B. 143; 18 L. J. (,). B. 185; 17 Jur. 370 . . . ' 115, 127 OAyen r. London and North-Western Railway Company (1867), L. R. 3 Q. B. 54 ; 37 L. J. Q. B. 35 ; 17 L. T. 210^ 16 W. R. 125 ; 7 B. & S. 758 133, 134, 251 Oxford, Worcester, and Wolyerhampton Railway Company, /;/ /v (1860), 29 L. J. Ch. 245 ; 27 Beay. 571 . . . " . .' . . 199,238 Page v. Kettering Waterworks Company (1892), 8 T. L. R. 228 . 161, 449, 690 Palmer and Company and Hosken and Company, In re [1898], 1 Q. B. 131 ; 67 L. J. Q. B. 1 ; 77 L. T. 350 ; 49 W. R. 49 . . 108, 693, 695 Palmer and the Hungerlord :\larket Act, In re (1839), 9 A. & E. 463 . 151 Palmer, i:.';j;((/-^i(1849\ 13 Jur. 781 243 xlii T((hh' of Cni>es. PAGE Palmer i: Caledonian Eailway Coiupaiiv [1892], 1 Q. B. 823 ; 61 L. J. Q. B. 552 ; (36 L. T. 771 ; 40 W. B. 562 426 V. Metropolitan Eailwav Company (1862), 31 L. J. Q. B. 259 ; 10 AV. R. 714 81, 94 Pardoe's Account, In re (1882), W. X. 33 232 Parkdale Corporation r. West (1887), 12 A. C. 602 ; 56 L. J. P. C. 66 253, 257 Parker's Estate, Tn re (1872), L. B. 13 E-i. 495 ; 41 L. J. Cli. 473 ; 26 L. T. 12 ; 20 W. B. 28!) 219, 234 Partin^'ton, Li rt [1902], 1 Cli. 711 ; 71 L. J. Cli. 472 ; 86 L. T. 194; 50 W. E. 388 "13 Paitington's Trusts, Re (1863\ 7 L. T. 522 ; 11 W. B. 160 . . .194 Pattison's Estates, In re (1876), 4 Ch. D. 207 229, 245 Pattisson V. Gilford (1874), L. E. 18 E-i. 259 ; 43 L. J. Ch. 524 ; 22 W. R. 673 162 Pavne r. Esdaile (1888), 13 A. C. 613 ; 58 L. J. Cli. 299 ; .59 L. T. 568 ; 37 AV. E. 273 ; 53 J. P. 100 163 Peake v. Fii.chlev Local Board (1887), W. N. 203 ; 57 L. T. 882 . . 521 Pearce v. AVycomhe Eailway Company (1852), 1 Dr. 244 . ^ . ^. 36o Pearson v. Great Xortlieru Eailwav Company (1869), L. E. 7 Q. B. 785 (n); 18 W. E. 259 12» Pedler v. Hardv (1902), 18 T. L. E. 591 691 Pedlev's Estate, In re (1855), 1 Jur. N. S. 654 20.> Pell V. Midland Counties and South Wales Railway Company (1869), 20 L. T. 288 ; 17 W. E. 506 ^ . . 263 i: Northampton and Banbury Eailway Company (1867), L. E. 2Ch. App. 100 ; 36 L. J. Ch. 319 ; 15 L. T. 169 ; 15 W. E. 27 . ^ . 24, 264 Penny and South-Eastern Eailway Company, In re (1857), 7 E. & B. 660 ; 26 L. J. Q. B. 225 ; 5 W. E. 193 ; 3 Jur. N. S. 957 . . . 125, 163, 164, 176, 342 Penny v. Penny (1867), L. B. 5 Eq. 227 ; 37 L. J. Ch. 340 ; 18 L. T. 13 ; 16 W. E. 671 l-*^^ Perks' Estate, In re (1853), 1 Sm. & G. 545 ; 2 W. E. 24 ; 7 E. C. 605 . 224 Perks /•. Wycombe Eailway Company (1862), 3 Gitl. 662 ; 7 L. T. loO ; 10 W. E. 789 ; 8 .Jur. X. S. 1051 68 Perry's Estate. See Sterry's Estate. Perth Magistrates r. Earl of Kinnoul (1872), 10 Sc. Sess. Ca. 874 . . 387 Pescodr."Pescod(1888),W. X. 2; .58 L. T. 76 . . . 89,682,687 Petei-s r. Lewes and East Grinstead Eailway Company (1881), 18 Ch. D. 429 ; 50 L. J. Ch. 839 ; 45 L. T. 234 ; 29 W. R. 875 . . . 31, 32, 36 Pettiward and Metropolitan Board of Works, In re (1865), 19 C. B. N. S. 489 : 34 L. J. C. P. 301 ; 12 L. T. 764 165 PH.'-er, In re (1868), L. P>. 6 E.j. 426 217 Philip V. i: De G. AL & ({. 861 ; 1 Iv. & J. 3() ; 24 L. J. Ch. 417 ; 1 Jur. X. S. 241 . 10, 55, 70, 252, 279' Pole V. Pole (1865), 2 Dr. & Sm. 420 ; 13 W. R. 648 . . . 213 Pollock i: Xorth British Railway Coini-any (1901), 3 \\ (Ct. of Sess.) i2t 40o Portland Urban District Council, In xv [1896], 2 (,>. B. 98 ; 65 L. J. Q. B. 527 ; 74 L. T. 703 ^- • .' ./ooo " Potteries, Shrewsbury and North Wales Railway Company,//; re (1883), •)5 Ch D. 251 ; 5.3 L. J. Ch. 556 ; 50 L. T. 104 ; 32 W. R. 300 . . 615- Talk' of Cases. xliii PAGE Pountney v. Clayton (1883). 11 (,). B. D. 820 ; 52 L. J. Q. B. 56G ; 48 L. T. 283 ; 31 W. R. G64 ; 47 J. P. 288 .... 325,411,414 Poynder r. Great Nortlierii Railwav CVirapanv (1847), 16 Sim. 3 ; 10 L. J. Cli. 444 ; 5 R. C. 200 ; 2 Pli". 330 .' . . . 137, 200, 38n Prebble and Robinson, lu re [1892], 2 Q. B. 002 ; 07 L. T. 207 ; 41 W. E. 30 ; 57 J. P. 54 98, 684 PiesLott r. Wnod (1868), 37 L. J. Ch. 691 233, 234 Priestley v. Manclie.^ter and Leeds Railway Company (1840), 2 R. C. 134 372 Protheroe i'. Tottenham, &c.. Railway CNjnipanv [1891], 3 Cli. 278 : 65 L. T. 323 . . . ' . . . ." 47 Pryor's Settlement Trusts, In re (1876), 35 L. T. 202 . . . 240, 241 Pryse v. Cambrian Railwav Company (1867), L. R. 2 Cli. 444 ; 36 L. J. Ch. 565 ; 15 W. R. 604 . " 27 Public Works Commissioners, In re (1856), Ir. Ch. 53 . . 190, 197 Pugh r. Golden Vallev Railwav Companv (1880), 15 Ch. D. 330 ; 49 L. J. Ch. 721 ; 42 L^T. 863r28 W. R. 803 371 Pullen and the Liverpool Corporatioji, In re (1882j, 51 L. J. (). B. 2b5 ; 46 L. T. 391 ; 46 J. P. 468 81 Pulling /•. London, Chatham and Dover Railway Company (1864), 33 L. J. Ch. 505 ; 33 Beav. 644 ; 2 D. J. & S. 661 ; 10 L. T. 393, 740 : 12 AV. R. 770, 909; lOJur. N. S. 665 273,278,279 Putnev Overseers r. London and South-Western Railway Company [189i; . 1 Q. B. 440 ; 60 L. J. Q. B. 438 ; 64 L. T. 280 ; 39 W. R. 291 . 333, 335 Q. Queen Camel (Vicar of). Ex parte (1863), 8 L. T. 233 ; 11 W. R. 503 Queen's College, Cambridge, Ex parte (1851), 14 Beav. 159 (/;) Quicke, Ex parte (1864), 12 L. T. 5S0 ; 13 W. R. 924 . Quinton v. Bristol Coriioraiion (1874j, L. R. 17 K([. 524 ; 43 L. J. Cli 783 ; 30 L. T. 112 ; 22 W. R. 434 194 194 70 53 R. Radnor's Settled Estates, J;i />■ (1898;, W. X. 174 .... 700 Railston, £.-■/)«/•/'/ (1851), 15 Jur. 1028 232 Railstone c. York, Newcastle and Berwick Railwav Companv (1850), 15 Q. B. 404 ; 19 L. J. Q. B. 464 ; 14 Jur. 1021 \ '. \ . .109 Ramsden v. Manchester and Altrincham Railwav Company (1848), 1 E.v. 723 ; 5 R. C. 352 ; 12 Jur. 293 . . ." . . ^ . 55, 68, 252, 371 Rangelev v. Midland Railway Company (1868), L. R. 3 Ch. App. 306 ; 37 L. J. Ch. 313 ; 18 L. T. 69 ; 10 W. R. 547 . 20, 254, 313, 37i), 371 Ranken v. East and West India Docks and Birmingham Junction Railwav Company 1849), 12 Beav. 298 ; 19 L. J. Cli. 153 . 62, 68, 259, 297, 302 Paper c. Crystal Palace, &c., Railway Company (1868), 18 L. T. 8 ; 16 W. R. 413 . . . . .■' . .' . . . . . 262 Raphael v. Thames Valley Railway Company 1I8661, L. R. 2 Ch. App. 147 ; 36 L. J. Ch. 209 . . . . ' 22 Rathmines Drainage Act, In re (1885), 15 L. R. Ir. 570 .... 709 Rawlin^s r. Metropolitan Railway Cumjjanv (1868), 37 L. J. Ch. 824 ; 18 L.' T. 871 . . . . " . . " 65 Ray V. Walker [1892], 2 Q. B. 88 ; 61 L. J. Q. B. 718 .... 324 Rayner, Ex parte (1878), 3 Q. B. D. 446 ; 47 L. J. Q. B. 660 ; 39 L. T. 232 . 5, 518 Read ('. Victoria Station and Pimlico Railwav Company (1863), 32 L. J. Ex. 107 ; 1 H. & C 826 ; 11 W. R. 1032 ; 9 Jur. X. S. lUOl . 70, 104, 124 Reading r. Hamilton (1862\ 5 L. T. 028 237 Reaston's Estate, In re (1872), L. R. 13 E.j. 504 : 41 L. J. Ch. 832 ; 20 L. T. 148 ; 20 W. R. 355 201, 223 Reddin -;. Metropolitan Board of Wf.rks (1862), 31 L. J. Ch. 000; 4 De G. F. & J. 632 ; 7 L T. 6 ; 10 W. R. 764 276 Reeve, Ex parte (1883), 24 Ch. D. 253 ; 52 L. J. Ch. 912 ; 49 L. T. 523 ; 32 W. R. 309 30 xliv Table of ( 'asrs. PAGE Reeve r. Gibson [1891], 1 Q. B. 652 ; 60 L. J. Q. B. 451 ; 39 W. B. 420 . 230 Ee^ent's Canal, &c.. Company v. School Board ior London (1885), W. N. 4 ^^ Ee>'ent's Canal r. Ware (1857), 23 Beav. 575 ; 26 L.J. Cli. 566 ; 5 \V. R. 617 ; 3 Jur. X. S. 924 21, 27, 105, 178 Re<' V. Allan (1864), 33 L. J. M. C. 98 ; 9 L. T. 761 ; 12 W. R. 423 ; 10 " Jnr. X. S. 790 13 . t'. Ambergate, &c., Railway Company (1853), 1 E. & B. 372 ; 22 L.J. Q. B. 191 ; 17 Jur. 668 -t2 V. Biram (1852), 17 (}. B. 969 ; 16 Jur. 640 99 . r Bodmin (Mavor oi) [1892], 2 (,). B. 21 ; 61 L. J. M. C. 151 ; 66 L T. 562 ;" 40 W. R. 606 ; 56 J. P. 504 76 r. Boyce Combe (1863), 32 L. J. M. C. 69 ; 11 W. R. 441 . 83, 310 V Brown (1867), L. R. 2 Q. B. 630 ; 36 L. J. (,). B. 322 ; 16 L. T. 827 ; 15 W. R. 988 ; 8 B. & S. 456 142, 403 V. Burslem Local Board (1859), 1 E. & E. 1077 ; 28 L. J. (,). B. 345 ; 8W. E. 584; 6 Jur. N. S. 696 525 V. Caledonian l^ailway Company (1850), 16 Q. B. 19 ; 20 L. J. Q. B. 147; 15 Jur. 396 -^'h 366 V. Cambrian Railway Company (1869), L. R. 4 Q. B. 320 ; 10 B. & S. 315 ; 38 L. J. Q. B. 198 ; 20 L. T. 437 ; 17 W. R. 6(57 . .102 r Cambrian 'Railway Company (1871), L. R. 6 Q. B. 422 ; 40 L J. Q. B. 169 ; 25 L. T. 84 ; 12 W. R. 1138 ... 10, 169 V. Cheltenbam Justices (1841), 1 Q. B. 467 ; 10 L. J. ^l. C. 99 ; 1 G. & I). 67 V T ■ ^ W -^^ V. Commissioners of Sewers (1853), 1 E. & 35 391 ; 22 L. J. Q. B. 234 ; 17 Jur. 787 "'25 r Commissioners of Sewers of Fobbing (1886), 11 A. C. 450 ; 56 L. J. M. C. 1 ; 55 L. T. 493 ; 34 W. R. 721 ; 51 J. P. 227 . 12 r. Commissioners of Woods and Forests (1850), 15 Q. B. 761 ; 19 L. J. Q. B. 497 ; 15 Jur. 35 61 t: Commissioners of Woods and Forests, Be Budge (1848), 17 L. J. O B 341 .....••••• ^1 . r. Cottle (1851), 16 Q. B.'412 ;' 20 L. J. M. C. 162 ; 15 Jur. 721 . 282 r. Cumberlau.l Justices (1888), 58 L. T. 491 ; 52 J. P. 502 . . 14 . ,• East and West India Dock Company (1853), 2 E. & B. 466 ; 22 L. J. Q. B. 380; 17 Jur. 1181 . . . • -, ■_ 373,390 f Eastern (bounties Railway Company (1841), 2 Q. ]j. 34, ; 11 L.J. Q. B. 66, 178 • ^ • l^JO r. Eastern Counties Railway Company (1843). 12 L. J. Q. V>. 271 ; 3 R. C. 466 ; 7 Jur. 628 1-7 r East London Railway Company (1867), 17 L. T. 291 . . 310 r. Edwards (1884), 13 Q. B. U. 586; 53 L. J. M. C. 149 ; 51 L. T. 586; 49 J. P. 117 77, 82 V. Evans and Yale, Justices (1850), 19 L. J. U. C. 151 ... 72 r. Farrant (1888), 20 (,). B. D. 58 ; 57 L. J. M. C. 17 ; 57 L. T. 880; 36 W. R. 184 ; 52 J. P. 116 13 tv Fisher (1862). 32 L. J. M. C. 12 ; 3 B. & S. 191 . . . 4o2, 406 r. Gaisford [1892], 1 Q. B. 381 ; 61 L. J. M. C. 50 ; 66 L. T. 24 ; 56 J. P. 247 12 V. Glamorgansliire Justices [1892], 1 (,). B. 621 ; 61 L. .1. M. C. 169 ; 66 L. T. 444 ; 40 W. E. 436 ; 56 .1. P. 437 .... 83 r Great Northern Railway Comi)any (1849), 14 (,). B. 25 ; 19 L. J. Q. B. 25 ; 6 R. C. 246 ; 14 Jur.' 128 . . . 11. 116, 161 (• Great Northern Eailwav Company (1876), 2 U. R D. 151 ; 46 L. J. Q. B. 4 ; 35 L. '1'. 551 ; 25 'W. R. 41 . . 71, 306, 308 r. Great Western Jiailwav Company (1844). 6 (). B. 72 (n) . . 128 r Great Western Railway Company (1852). 1 E. & B. 253 ; 22 L. J. Q. B. 65 . .' _ ■ '^'^ r. Great Western Railway Company (1893). 62 L. J. (,). B. .),2 ; 69 L. T. 572 ; 9 E. 1 •_ 3<;1 V Halifax Local ISoard (1865), 14 L. T. 447 . . . 126, 12,, 342 — r. Hammond (1863), 9 L. T. 423 ; 12 W. R. 208 .... 12 . r. Hannav (1874), 44 L. J. M. C. 27 ; 31 L. T. 702 ; 23 W. R. 164 82 TiiJih' of Cases. xlv PAGE Ee". V. Heiilev [1892], 1 Q. B. ",04 ; Gl L. J. M. C. 13.-, ; GO L. T. G75 ; 40 W. R. 383 ; 5G J. P. 391 13 r. Heitfoi-ashire Justices (1845), G Q. B. 753 ; 14 L. J. M. C. 73 ; t> Jur. 4-24 l^i V Hull and Selby Railway Company (1844), G Q. B. 7(» ; 13 L. J. (J. B. 257 ; 3 R. C. 7tV, ; 8 Jur. 491 128 r. Kennedy [1893], 1 Q. B. 533 ; G2 L. J. M. C. 1G8 ; 68 L. T. 454 ; 41 W. R. 3>^0 ; 5 R. 270 ; 57 J. P. 34G ... 77, 3u8 r. Kent Justices (1880), 44 J. P. 2!J8 U c Lambourne Valley Railway Company (1889), 22 q. B. D. 4G3 ; 58 L. J. Q. B. l'3G ; 60 L. T. 54 ; 53 J. P. 248 . . . . 75 c. Lancaster and Preston Railway Company (1845), G <,). B. 759 ; 14 L. J. Q. B. 84 ; 3 R. C. 725 124, 12G r. Lee (1882), 9 Q. B. D. 394 ; 30 W. R. 750 ; 47 J. P. 118 . 12, 13 c. Liverpool (Mayor of) (1891), 7 T. L. R. 592 ; 55 J. P. 823 . . 76 c. London and Greenwich Raihvay Company (1842), 3 Q. B. 16G ; 3 R C. 138 ; 6 Jur. 892 . ' 69 f London and Norili-Western Railway Company (1854), 3 E. & B. 443 ; 23 L. J. Q. B. 185 ; 18 Jur. 993 . . 79, 123, 124, 342 V London and Xorth-Westeru Railway Company (1863). 9 L. T. 423; 12 W. R. 208 ^ • ^^'^ V London and Xurtli-Western Railway Company [1894], 2 Q. B. 512 ; 63 L. J. Q. B. 695 ; 10 R. 359 ; 58 J. P. 719 . 75, lt)2, 416, 421, 693 V. London and North-Western Railway Company [1899], 1 Q. B. 921 ; 68 L. J. Q. B. 685 ; 80 L. T. 782 . . . . 102, 693 V. London and Southampton Railway Company (1839), 10 A. & E. 3 ; 1 R. C. 717 ; 2 P. & D. 243 148, 308 ^ c. London an. B. 241 ; 30 W. R. 272 133, 134, 3o3 xlvi Table of Cafics. PAGE Ee^. V. Pearce, E.cparte School Board for Loiulon (1898), 67 L. J. Q. B. 842 ; 78 L. T. 681 182 V. Peikiii (1845), 7 Q. B. 165 ; 14 L. J. M. C. 87 ; 9 Jur. 686 . 114 V. Poultei" (1887), 20 Q. B. D. 132 ; 57 L. J. Q. B. 138 ; 58 L. T. 534 ; 36 W. R. 117 ; 52 J. P. 244 177, 184 I'. Rand (1866), L. R. 1 (,). B. 230 ; 35 L. J. M. C. 157 ... 12 V. Richmond Justices (1860), 8 Cox, C. C. 314 ; 8 W. R. 562 . 13 V. Ri-hv (1850), 19 L. J. Q. B. 153 ; 14 Q. B. 687 ; 6 R. C. 479 ; 14 Jur. 329 390 V. Rochdale Improvement (Jummissioner.s (1856), 2 Jur. X. S. 861 14, 147, 310 V. Rynd (1863). 16 Jr. C. L. R. 29 160 V. St. All)ans (1882), 9 (,). B. 1). 454 ; 46 L. T. 692 ... 13 V. St. Luke's, Chelsea (1871), L. R. 7 Q. B. 148 ; 41 L. J. Q. B. 81 ; 25 L. T. 914 ; 20 W. R. 209 5, 76, 155, 160 r. St. Marylebone Vestrv (1887), 20 Q. B. D. 415 ; 57 L. J. M. C. 9; 58 L. T. 180 ; 36 W. R. 271 ; 52 J. P. 534 . . . . 586 i,. Scard (1894), 10 T. L. R. 545 127, 141 . V. Schotield (1893), 69 L. T. 313; 5 R. 575 ; 58 J. P. 132 . . 397 • V. Sheriff of ^Middlesex ; Somers v. IMetroiwlitan Railway Com]:)anv (1862), 31 L. J. Q. B. 261 ; 10 W. R. 717 ; 8 Jur. N. S. 617 185, 309 r. Sheward (1880), 9 Q. B. D. 741 ; 49 L. J. Q. B. 716 ; 5 Q. B. D. 179 ; 49 L. J. Q. B. 329 ; 42 L. T. 363 ; 28 W. R. 506 . 126, 127 ■ V. South Devon Railway Company (1850), 15 Q. B. 1043 ; 20 L. J. Q. B. 145 ; 15 Jur." 464 . ' 102 y. South-Easteru Railway Company (1851), 4 H. L. C. 471 ; 17 Jur. 931 . . ". . ". 386 c. South Holland Drainage Committee (1838), 8 A. & E. 429; 1 P. & D. 79 69, 119, 125 f. South Wales Railway Company (1849), 13 Q. B. 988; 18 L. J. Q. B. 310 ; 6 R. C. 197 ; J 3 Jur. 1095 . . . 125, 126 V. South Wales Railway Company (1850), 14 Q. B. 902 ; 19 L. J. Q. B. 272 ; 14 Jur. 828 . " 29, 437 - . V. Stone (1866), L. R. 1 Q. B. 529 ; 35 L. J. M. C. 208 ; 14 L. T. 552; 14 W. R. 791 61,77,309 - V. Swansea Harbour Trustees (1838), 8 A. & E. 439 ; 1 P. & D. 512; 3 Jur. 85 69, 128 r Tooke (1884), 32 W. R. 753 ; 48 J. P. 661 13 . V. Twiss (1869), L. R. 4 g. B. 407 ; 10 B. & S. 298 ; 38 L. J. Q. B. 228 ; 20 L. T. 522 ; 17 W. R. 765 30 V Yiui'dian (1868), L. R. 4 <■). B. 190 ; 38 L. J. M. C. 49 ; 17 W. R. llV, 77, 148, 164, 176 f Wallasey Local Board (1869), L. R. 4 Q. B. 351 ; 38 L. .1. Q. B. 217; 21 L. T. 90 ; 17 W. R. 766 15.9,523 r. AVarwickshire (Slieritf) (1841), 2 R. C. 661 133 r. Warwickaliire (Sheriff) (1855), 3 W. R. 164 . . . .113 V. Waterford and Limerick Railway Company (1852), 2 Ir. C. L. 580 "...'.... 406 ,• West Midland Railway Company (1862), 10 W. R. 583; II W. R. 857 . ". 102 ,•. Wilson (1852), 18 Q. B. 348 ; 21 L. J. Q. B. 281 ; 16 Jur. 973 . 395 ,.. Wycombe Railway Company (1867), L. R. 2 Q. B. 310; 36 L. J. Q. B. 121 ; 15 L. T. 610 ; 15 AV. R. 489 . . . 46, 371 v. Yarmouth Justices (1882), 8 Q. B. D. 525 ; 51 L. J. M. C. 39 ; 30 W. R. 460 13 V. York and North Midland Railway Company (1853), 1 E. & li. 178, 858 ; 22 L. .1. g. B. 225 ; 17 Jur. 690 .... 42,361 Eehoboth Chapel, //( n- (1875), L. R. 19 E.[. 180 ; 44 L. J. Ch. 375 ; 31 L. T. 371 ; 23 W. R. 4()5 198 ReKi' Bristol I)o. & Ad. 30 ; 1 N. & M. 690 . . . .167 r. Severn and Wve Eailwav Company (1819), 2 B. & Aid. 646 . 361 V. Thames and Isis Commissioners (1836), 5 A. & E. 804 . . 180 ■ V. West Eiding of Yorksliire Justices (1834), 1 A. & E. 563 ; 3 N. &M. 802 143 V. York Justices (1834), 1 A. & E. 828 133 Eeyual, Ex mirU (1847), 16 L. J. Q. B. 304 ; 5 E. C. 60 . . . 96 Eevnolds, In tk ri876), 3 Cb. D. 61 ; 35 L. T. 293 ; 24 W. E. 991 . 202 Eliodes, lit (188'6\ 31 Ch. D. 499 ; 55 L. J. Cli. 477 ; 54 L. T. 294 ; 34 W. E. 501 . ' 208 Eliodes r. Airedale Drainage Commissioners (1876), 1 C. P. D. 380 ; 45 L. J. C. P. 861 ; 35 L. t. 46 ; 24 W. E. 1053 . . 79, 87, 165, 679, 690 Ehondda and Swansea Eailway Company r. Talbot [1897], 2 Ch. 131 ; 66 L. J. Ch. 570 ; 76 L. T. 694 143. 407 Ehy.s r. Dare Yallev Eailwav Company (1874), L. E. 19 E.|. 93 ; 23 W. E. 23 . ". 26 Eichards, i:.r2/(r,-?t'(1890\ 25 L. E. Ir. 175 239 Eichards v. De Winton [1903], 1 Ch. 507 ; 72 L. J. Ch. 269 : [1901]. 2 Ch. 566 ; 70 L. J. Ch. 719 ; 84 L. T. 831 ; 50 W. E. 87 ; 65 J. P. 696 294 ■ V. Scarhoroiigh Public Market Company (1853), 23 L. J. Ch. 110 . 537 V. Swansea Improvement and Tramway Company (1878), 9 Ch. D. 425 ; 38 L. T. 833 ; 26 W. P. 764 . " . . . . 271, 275. 277 Eichardson v. Elmit (1876), 2 C. P. D. 9 ; 36 L. T. 58 . . . . 105 v. South-Eastern Eailwav Company (1852), 20 L. J. C. P. 236 ; 11 C. B. 154 ; 21 L. J. C. P. 122 ; 15 C. B. 810 ; 15 Jur. 660 ; 16 Jur. 151 9.5, IIU, 129, 190 Eichmond r. Xorth Londtm Eailwav Company (1868), L. P. 3 Ch. Ajip. 679 ; 37 L. J. Ch. 886 ; 18 L. T. 8 ; 16 W. E. 449 . . 58, 6i>, 312 Eicket V. Metroi)olitan Eailwav Company (1867), L. E. 2 H. L. 175 ; 36 L. J. Q. B. 205 ; 34 L. J. Q.'B. 257 ; 16 L. T. 542 ; 15 W. E. 937 . 147, 158, 164, 173, 174, 175, 176, 181, 360 Eicketts r. East and West India Docks and Birmingham Eailwav Com- pany (1852), 21 L. J. C. P. 201 ; 12 C. B. 160 ; 7 E. C. 295 ; 16 Jur. 1072 404 Eiddell r. Newcastle Water Company, KHreportoZ .... 143 Eipley v. Great Northern Eailwav Company (1875), L. E. 10 Ch. App. 435 ; 31 L. T. 869 ; 23 W. E. 685 . " 143 Eiver Eoden Company x. Barking Town Urban District Council (1902), 18 T. L. E. 608 . " 262 Eoberts x: Great Western Eailway Company (1858), 4 C. B. N. S. 506 ; 27 L. J. C. P. 266 ; 4 Jur. N. S. 1240 . " 4()4 Eobinson r. Sunderland Corporation [1899], 1 Q. B. 751 ; 68 L.J. Q. B. 330 : 80 L. T. 262 ; 63 J. P. 341 522 Eobinson's Settlement Trusts, /// ;y- [1891], 3 Ch. 129 ; 60 L. J. Ch. 776 ; 65 L. T. 244 ; 39 W. E. 632 31,213,216 Eobins's Estate, In re (1879), 27 W. E. 705 200 Eoderick r. Ashton Local Board (1877), 5 Ch. D. 328 ; 46 L. J. Ch. 802 ; 36 L. T. 328 ; 25 W. E. 403 165, 524, 528 Eogers v. Hull Dock Company (1863), 4 N. E. 494 ; 12 W. P. 1101 ; 11 L. T. 42 . . \ 252 r. Hull Dock Company (1864), 34 L. J. Ch. 165 ; 11 L. T. 463 ; 13 W. E. 217 : 10 Jur. N. S. 1245 62, 253 Eolls V. London School Board (1884), 27 Ch. D. 639 ; 51 L. T. 567 ; 33 W. E. 129 54, 562 xlviii Tabic of Cases. PAGE Eomiiev, //i re (1863), 3 N. E. 287 239 Eoike/is'.i; /wir^' [1894], 1 Ir. R. 146 233 Rosenberg v. Cook (1881), 8 Q. B. D. 162 ; 51 L. J. Q. B. 170 ; 30 W. R. 344 319 Ross V. York, Newcastle and Berwick Railway Company (1877), 3 Q. B. D. 1 ; 47 L. J. Q. B. 10 ; 37 L. T. 391 ; 26 W. R. 229 . 133, 134 Row, In re (1874), L. R. 17 E(|. 300 ; 43 L. J. Cli. 347 ; 29 L. T. 824 . 202 Eiiabon Brick and Terra Cotta Company i>. Great Western Railway Com- pany [1893], 1 Ch. 427 ; 62 L. J. Ch. 483 ; 68 L. T. 110 ; 41 W. R. 4LS ; 2 R. 237 412, 417 Ruck's Trusts, T„ re [1895], 13 R. 637 ; 39 Sol. J. 601 . . . . 245 Ruthin and Cerrig-y-Druidion Railway Act, la re (1886), 32 Ch. D. 438 ; 56 L. J. Ch. 30 ; 55 L. T. 237 ; 34 W. R. 581 615 Rutland's (Duke of) Settlement, fn re (1883), 49 L. T. 196 ; 31 W. B. 947 709 Ryan v. Great Southern and Western Railway Company [1892], 32 L. R. Ir. 15 ■' . . ^ . . 405, 408 Ryder, In re (1887), 37 Cli. I). 595 ; 57 L. J. Ch. 459 ; 58 L. T. 783 . 240 S. Sadd v. Maldon, &c., Railway Company (1851), 6 Ex. 143 ; 20 L. J. Ex. 102 ; 6 R. C. 779 . . " 373 St. Alban's, Wood Street (Rector of), Li re (1892), 66 L. T. 51 . . 208 St. Alphege, Ex parte (1886), 55 L. T. 314 201 St. Bartholomew's Hospital (Goyernors of), Ex parte (1875), L. R. 20 Eq. 3(59 ; 32 L. T. 652 . . 244 St. Bartholomew's Hospital (Trustees of), In re (1859), 4 Dr. 425 . . 236 St. lienet's (Rector of). In re (1865), 12 L. T. 762 206 St. Botolpli, Aldt^ate (Vicar ot), Ex i,arte [1894], 3 Ch. 544 ; 63 L. J. Ch. 862 ; 8 R."649 195, 206 St. Botolph (Vicar of) v. Parishioners of Same [1892], P. 161 . . . 30 St. Dunstan, In re Charity Schools of (1871), L. R. 12 E<|. 537 ; 24 L. T. 613 ; 19 W. R. 887 ■; 231 St. Giles and St. Geor<^'e Volunteer Corps, In re (1858), 25 Beay. 313 ; 27 L. J. Ch. 560 ; 4 Jur. N. S. 297 ....... 206 St. John's Church, Fulham, i:/;;y«rfe (1857), 28 L. T. O. S. 173 . . 238 St. John the Baptist College, Oxford (1882), 22 Ch. D. 93 ; 51 L. J. Cii. 268 ; 48 L. T. 331 ; 31 W. R. 55 204, 246 St. Katherine, Ex parte Hospital of (1881), 17 Ch. D. 378 ; 44 L. T. 52 2.30 St. Katherine's Dock Company, In rr (1844), 3 R. C. 514 . . . 236 St. Leonard, Shoreditch, r. London County Council [1895], 2 Q. B. 104 ; 64 L. J. Q. B. 615 ; 72 L. T. 802 ; 43 W. R. 598 ; 15 R. 516 ; 59 J. P. 423 335, 338, 582 St. Martin's, Birmingham, Ex parte Rector of (1870), L. R. 11 Eq. 23 ; 40 L. J. Cii. 69 ; 23 L. T. 575 ; 19 W. R. 95 206 St. Mary, Battersea, r. London and Bru-sh Proyincial Electric Lighting Company [1899], 1 Ch. 474 ; 65 L. J. Ch. 238 ; 80 L. T. 31 . . 514 St. Pancras Burial Ground, /// r>' (1866), L. R. ;} Eq. 173 ; 36 L. J. Ch. 52 ; 15 W. ]{. 576 206, 226 St. Paul V. Birmingliam, &c., Railway Company (1853), 11 Hare, 305 . 265 St. Paul's, is..; parte Precentor of (1855), 1 K. & J. 538; 24 L. J. Ch. 395 ; 1 Jur. N. S. 444 217 St. Paul's Sciiools, Finsburv (1883), 52 L. J. Ch. 454 ; 48 L. T. 412 ; 31 W. R. 424 . . . ' 235 St. Sepulchre's Case, In re Westminster liridge Act (1864), 4 De G J. & S. 232 ; 33 L. J. Ch. 372 ; 9 L. T. 819 ; 12 W. R. 499 . 5, 231 St. Tliomas's Cliurch Lands, Bristol, Ex )>arie (1870), 23 L. T. 135 . 217 St. Thomas's Hospital, /h nMl863), 11 W. R. 1018 . . . 199,238 St. Thomas's Hos])ital r. Charing Cross Railway Company (1861), 1 J. & H. 400 ; 30 L. J. Ch. 395 : 4 L. T. 13 ; 9 \V. R. 411 ; 7 Jur. N. S. 256 32, 271, 280 Sal i sliu ry f. Great Nortliern Railway Comjiany (1852), 17 Q. B 840; 21 L.J. Q. B. 185; 16 Jur. 740 . . / . . . 58,257,311 Talk of Cases. xlix PAGE Salisbury v. Great Northern Railway Company (1858), 28 L. J. C. P. 40 ; 5 C. B. X. S. 174 ; 7 W. R. 75 ; 5 Jur. N. S 70 . 253, 315, 372 V London and Nortli-Western Railway Company [1892], 1 Ch. 75 (n) ; W. N. (1879) 214 287 Salmon r. Roundall (1838), 3 My. & Cr. 439 44 Salter r. Metropolitan District Railway Company (1870), L. R. 9 E4. 432 ; 39 L. J. Ch. 567 274 Sandback Cliarity Trustees r. Xortli Staffordshire Railway Company (1877), 3 Q. B: D. 1 ; 47 L. J. Q. B. 10 ; 37 L. T. 391 ; 26 W. R. 229 134, 251 Sander.", Ee (1894), 70 L. T. 755 209, 229 Sanders' Settlement, In rv [1896], 1 Cli. 480 ; 74 L. T. 261 ; 65 L. J. Ch. 426 ; 44 W. R. 385 249 Sander^^on r. Cockermouth and Workin-ton Railway Comitany (1850), 19 L. J. Q. B. 502 ; 5 H. & Tw. 327 22 Saunderton, i?j; iJ«r^ Soutli Wak-s Railway Company (1851), 14 Beay. 418 ; 15 Jur^ 1145 . 250, 267 Soutli- Western Railway C()ni]>any v. Coward (1848), 5 R. C. ,03 . . 66 Sowry, //( ?r'(1873), L. R. 8Cii. Ai.p. 736 223 Sowry V. Sowry (1860), 8 W. R. 339 ; 29 L. T. 233 ; 21 \V. R. 717 ^ . 202 Siiackman r. Givat Western Railway Company (1855), 1 Jur. N. S. 790 ' . . . . 276, 280 Sparrow r. Oxford, &c.. Railway Company (1852), 2 Dc G. M. & G. 94_; 21 L. J. Cli. 731 ; 9 Hare 436 ; 16 Jur. 703 . 55, 271, 276, 2,9, 280 Speer's Trust, In re (1876), 3 Ch. D. 262 ; 24 W. R. 880 . . • 194 Spencer-Bell and the Loudon ami Soutli-We.stern Railway Company (1884j, 33 W. R. 771 25, 298 Spencer r. Metropolitan Board of Works (1882), 22 Ch. D. 142; 52 L. J. Ch. 249; 47 L. T. 549 ; 31 W. R. 347 .... 1^8,5,6 Tuhh' of ('((ses. li I'AOE Spillers and Bakei', //( re [1997], 1 Q. B. 312 ; 66 L. J. Q. B. 32(i ; 76 L. T. 35 ; 45 W. B. 245 690, 696 Spitalhelcls Schools, /,( re (1870), L. B. 10 E^. 671 ; 22 L. T. 569 ; 18 W. B. 799 231 Spooner's Estate, In re (1855), 1 K. & J. 220 . _. . . 2:^9, 243, 250 Spiu'stowe's Charitv, In re (1874), L. B. 18 E(i. 2<9 ; 43 L. J. Ch. 512 ; 30 L. T. 355 ; 25 W. B. 566 201 Statioid's Charity, Ee (1888), 57 L. T. 846 209 Stattordshire, &c., Canal Conipany r. Biriningliam Canal Company (18661, L. B. 1 H. L. 254 ; 35 L" J. Cli. 757 54 Stainton v. Metropolitan Board of Works (1857), 26 L. J. Ch. 300 . . 489 Stamlord's (Lord) Settled Estates (1890), 43 Cli. D. 84; 58 L. J. Ch. 849 ; 61 L. T. 504 700, 701 Stani]is V. Birinin<,diam. Wolverliampton, ^S:r., Kaihvav Cniii])anv (1848), 7 Hare 251 ; 17 L. J. Ch. 431 ; 6 B. C li'3 . ' . . . . 64 Standing' r. Giav [1903], 1 Ir. B. 41) 712 Standish r. Mayor of Liveri>oul (1852|, 1 Drew. 1 . . . . 188, 252 Stanford r. Buherts (1883). 52 L. J. Ch. 50 ; 48 L. T. 262 . . 710 /,( re, Stanford r. Boberts [1901], 1 Ch. 440 ; 70 L. J. C'li. 203 ; 83 L. T. 756 ; 49 W. R. 315 712 Stanley of Alderlev^s (Lord) Estate, In re (1872), L. B. 14 E4. 227 ; 26 L. f. 822 . "^ 239 Staples, Ex parte, In re Brown (1852)^ 21 L. J. Cli. 251 ; 1 De G. M. & G. 294 205 Starr c. Corporation of London (1869), L. B. 7 Eq. 236 ; 20 L. T. 937 . 64, 114 Stead's Mortgaged Estates, In re (1876), 2 Ch. 1). 713 ; 45 L. J. Ch. 634 ; 35 L. T. 465"; 24 W. B. 698 ._ . 223 Steljhing V. Metropolitan Board of Works (1870), L. B. (J (,). 15. 3< ; 40 L. J. Q. B. 1 ; 23 L. T. 530 ; 19 W. B. 73 140, 206 Steele r. Liverpool Corporation (1866), 7 B. & S. 261 : 14 W. B. 311 . 61 . 1-. Midland Bailway Company (1866), L. B. 1 Ch. App. 275 ; 14 L. T. 3 ; 14 W. B. 367 ; ^12 Jur. X. S. 218 . . . . 272 v. Midland Bailway Company (1869), 21 L. T. 387 .. . 269 Steplieiis and the Liverpool and Globe Insnrance Company ri892), 36 Sol. J. 464 98 Stephens, Sn.itli, and Company, In re [1892], 36 Sol. J. 464 . . 681, 684 Sterry's Estate, i.V (1855), 3 W. B. 561 ; S. C. sub. norn. lu: I'errn's Edate, 1 Jur. X. S. 917 227 Steyen.s, Ex parte (1848), 2 Pii. 772 ; 5 B. C. 437 ; 13 Jur. 2 . 264, 266 (1850), 15 Jur. 243 236 Steyens v. Metropolitan District Bailway (Jompanv (1885), 29 Ch.D. 60 ; 52 L. T. 832 . . . . " -"^3 Steyenson, Ex parte [1892]. 1 Q. B. 609 ; 61 L. J. g. B. 492 ; 66 L. T. 544 ; 40 W. B. 417 ; 56 J. P. 501 610 Stewart, //( re (1889), 41 Ch. D. 494 ; 60 L. T. 737 ; 37 AV. B. 4S4. 246, 249 Stock's Devised Estates, In re (1880), 42 L. T. 46 194 Stockport, Timperley, and Altrincham Bailway Companv, In re (1864), 33 L. J. Q. B. 251 ; 10 L. T. 426 ; 12 W. B. 762 ; 10 Jur. X. S. 614 . 145 Stockton and Darlington Baihvav Company v. P>rown (1860), 9 H. L. C. 246 ; 8 W. B. 70s"; 6 Ji"-- ^^'«- 1168 . " 48,49 Stone f. Commercial Bailwav Comi>anv (1839), 4 Mv. & Cr. 122 ; 1 B. C. 375; 9 Sim. 621 . " 66,115,116 V. Corporation of Yeovil (1876), 2 C. P. D. 99 ; 46 L.J. C. P. 137 ; 36 L. T. -279 ; 25 W. B. 240 .... 35, 57, 161, 179, 191, 449 Stoneham r. London, Brighton and South Coast Bailway (1871), L. B. 7 Q. B. 1 ; 41 L. J. Q. B. 1 ; 25 L. T, 788 ; 20 W. B. 77 . . . 290 Storer v. Great AYestern Bailway Company (1842), 2 Y. & C. (Ch.) 48 ; 12 L. J. Ch. 65 ; 6 Jur. 1051 . . " 22 Strachan's Estate, In re (1851), 9 Hare 184 ; 20 L. J. Ch. 51 1 ; 15 Jur. 505 251 Strathmore's E.states, In rt (1874), L. B. 18 E4. 338 . . . 214, 215 Stratton v. :Metropolitan Board of AYorks (1874), L. B. 10 C. P. 76 ; 44 L. J. M. C. 33 ; 31 L. T. 673 ; 23 W. R. 447 . 334, 335, 336, 337, 338 Streatham Estates Company v. Commissioners for Public AYorks (1888), 52 J. P. 615 ; 4 T. L. B. 766 126, 143 lii T(thh' of Cases. PAGE Stretton v. Great "Western and Brentford Railway Company (1870), 5 Ch. App. 751 ; 40 L. J. Ch. 50 ; 23 L. T. 379 ; 18 W. R. 1078 . 68, 315 Stringer and Riley Brothers, In re [1901], 1 Q. B. 105 ; 70 L, J. K. B. 19 ; 49 W. R. ill 691, 692 Stroud r. Watts (1846), 3 D. & L. 799 ; 10 Jur. 497 . . . .114 Sudeley (Lord), L, re [1894], 1 Ch. 334 ; 63 L. J. Ch. 194 ; 70 L. T. 549 ; 42 W. R. 231 32 Summers v. Holborn Board of Woi'ks [1893], 1 Q. B. 612 ; 62 L. .J. .M. C. 81 ; 68 L. T. 226 ; 41 AV. R. 445 ; 5 R. 284 ; 57 J. P. 326 . . . 467 Sutton Harbour Commissioners r. Kitchens (1851), 1 De G. M. & G. 161 ; 21 L. J. Ch. 73 ; 16 Jur. 70 85 V. Hitchens (1853), 16 Beav. 381 102 S\vainston r. Finn and Metropolitan Board of Works (1883), 52 L. J. Ch. 235 ; 48 L. T. 634 ; 31 W. R. 398 . . . . . 55, 585 Swanston v. Twickenham Local Board (1879), 11 Ch. D. 838; 48 L. J. Ch. 623 ; 40 L. T. 734 ; 37 W. R. 924 525 Sweetman v. Metropolitan Railway Comjjany (1864), 1 H. & M. 543 ; 10 L. T. 156 ; 11 W. R. 304 63, 309 Syers v. Metropolitan Board of Works (1877), 36 L. T. 277 . . 63, 309 T. Tabernacle Permanent Building Society v. Kni-ht [1892], A. C. 298 ; 62 L. J. Q. B. 50 ; 67 L. T. 48:3 ; 56 J. P. 709 . . . 87, 695, 697 Tanner i: South Wales Railway Company (1855), 5 E. & B. 618 ; 25 L. J. Q. B. 7 ; 1 Jur. IS^ S. 1215 392, 394 r. Swindon Railway Company (1881), 45 L. T. 209 . . 117,446 Tawney v. Lynn and Ely Railway Company (1847), 16 L. J. Ch. 282 ; 4 R. C. 615 . . '. . . . " 61 Taylor, In re (1849), 1 M. & G. 210; 6 R. C. 741 ; 1 H. & Tw. 432 . 34, 233 Taylor v. Clemson (1842), 11 CI. & F. 610 ; 2 Q. B. 978 ; 8 Jur. 833 . 127 r. Dii'ectors of the Chichester Railway Company (1870), L. R. 4 H. L. 628 ; 39 L. J. Ex. 216 ; 23 L. T. 657 " . . . .213 v. Oldham Corporation (1876), 4 Ch. D. 395 ; 46 L. J. Ch. 105 ; 35 L. T. 696 ; 28 W. R. 178 524 Taylor's Estate, In re (1871), 40 L. J. Cli. 454 199 Temple Church Lands, In re (1877), 47 L. J. Ch. 160 ; 26 W. R. 259 . 235 Temple Churcli Lands, Bristol (1870), 23 L. T. 135 . . . .217 Temple Pier Company r. Metiopolitau Board of Works (1865\ 34 L. J. Cli. 262 ; 12 L. T. 369 ; 13 W. R. 535 ; 11 Jur. N. S. 337 . . 156, 254 Tennant v. Borough of Belfast (1847), 11 Ir. L. R. 290 . . . .133 Teuliere r. St. Mary Abbotts, Kensington (1885), 30 Ch. 1). 642; 55 L. J. Ch. 23 ; 53 L. T. 222 468 Tew V. Harris (1847), 20 L. J. Q. B. 1 ; 11 Q. B. 7 : 11 .lui. 947 . . 84 Thackeray and Young's Contract, In re (1888), 40 Ch. 1). 34 ; 58 L. J. Ch. 72 ; 59 L. T. 815 ; 37 W. R. 74 324 Thames Conservators r. Tilbury and Southend Railway Company (1893), 68 L. T. 21 ; 3"R. 178 . . . \ . \ 149 V. Victoria Station and Pindico Railway Company (1868). L. R. 4 C. P. 59 ; 38 L. J. C. P. 4 ; 19 L. T. 934 . . . . . .150 Tliicknesse v. Lancaster Canal Company (1838), 4 M. & ^V. -J 72 ; 3 Jur. 11 57 Thomas, In re [1900], 1 Ch. 319 ; (i9'L. .1. Ch. 198 ; 48 W. R. 409 . 713, 714 Tlionias 1-. Barry Dock Company (1889), 5 Times L. R. 360 . . .314 /•. Birmingliam Canal Company (1880), 49 L. J. Q. P.. 851 ; 43 L. T. 435 : 45 J. P. 21 .' 461 /■. Daw (1866), L. R. 2 Ch. App. 1 ; 36 L. J. Ch. 201 : 15 L. T. 210; 15 W.R. 113 469 Thomas's Trusts, In re (1864), 12 W. R. 546 . . . . . 206, 245 Thoni])son v. Tottenliani and Forest Gate Railway Company (1892), 67 L. T. 416 ; 57 J. P. is) . . . . \ . (56, 103, 279, 280 Thornhill v. Milbank (1864). 12 A^'. R. 523 210 Tahit' of Cases. liii PAGE Ti.l St. Giles's Charit}-, Ex part e Trustees of (1868), 17 W. R. 758 . 201 Tillett r. Cliaring Cross Railway Company (18591, 20 Beav. 419 ; 28 L. J. Ch. 863 ... " -'^ Tiuk V. Rundle (1849), 10 Beav. ,318 32 Tiverton and North Devon Kaihvav ('oni])anv v. LooseuKue (1882), 22 Ch D '>±r> ; (1884), 9 A. C. 480 ; .')3 L. J. Ch. 812 ; 50 L. T. 637 ; 32 W. R. 929 ; 48 .J. P. 372 . . 08, 60, 256, 2.57, 2.58, 311. 312, 413, 444 Todd Birleston, and Company v. Xorth-EMstern Railway Company [1903]. 1 K. B. 603 ; 88 L. T. 112 ; 5 W. R. 333 .... 413 Todd /•. Metropolitan District Railway Company (1871), 24 L. T. 435 ; 19W. R. 720 100, 131, 19(. Toilet X. Sannders (1821), 9 Price, 612 ; 23 R. R. 732 .... 89 Tondin V. Budd (1874), L. R. 18 E-i. 368 ; 43 L. .J. Ch. 027 ; 22 W. R. J29 326 Tookey'sTru.sts, 7/i/-e (1852), 16.Jur. 708 242 Tottenliam and Hampstead .Junction Railway Company, //( n: (1866), 14 W. R. 6(39 .• ■ • ^^I Tower v. Eastern Countie:^ Railway Company (1845), 4 U. C. 6.) . . 253 Townshend's Estates, In n (1882)", ^Y. N. 7 197 Tratlord, i^'-yvrtr^c (1837), 2 Y. &C. (E.K.)522 .... 238,239 Treacher's Settleiuent, I/i /¥ (1868), 18 L. T. 810 21 < Treadwell i: London and South-Westeru Railway Company (1884), 54 L. .J. Ch. 565 ; 51 L. T. 894 ; 33 W. R. 272 .... 70, 281 Trent-Stou^diton v. Barbadoes Water Supply Company [1893], A. C. 5112 ; 62 L. .J. P. C. 123 ; 69 L. T. 104 : 1 R. 403 . -449 Trinitv College, Cambridge, Ex par h: 1I868), 18 L. T. 849 . . 198, 243 TrinitV House Corporation, £■'■ 2^'"''' (18491, 3 Hare. 95 . .246 TryerV Show (1858), 27 L. .J. Ex. 320 93 Tucker's Settled Estates, In re [1895], 2 Ch. 468 ; 04 L. J. Cli. 513; r2 L. T. 019 ; 43 W. R. 581 ,12, <14 Tugwell, In /v (1884), 27 Ch. D. .309 ; 53 L. .J. Ch. 1006 ; 51 L. T. .^3 ; 33 AV. R. 132 _ • -34 Tullis V. Jacson [1892], 3 Ch. 441 ; 61 L. .1. Ch. (155 : 0, L. '1. 340 ; 41W. R. 11 ■ ■ • ^-^3 Tunbridge Wells Corporation r. Baird [1896], A. C. 434 ; 65 L. J. (). B. 451 ; 74 L. T. 385 ; 60 .J. P. 788 514 Tuohey v. Great Southern and Western Railwav Company (1858 1. 10 Ir. C. L. R. 98 l^^O Turner v. Cameron (1870), L. R. 5 Q. B. 3()6 ; 39 L. .J. (,). B. 125 ; 22 L. T. 525 ; 18 W. R. 544 ; 10 B. & S. 931 .... 39 V. Shertield and Rotherham Railway Company il842;, 10 M. & W. 425; 3R. C. 222 1"! Turner's Estate, In r. (1862). 5 L. T. 524 ; 10 W. 1!. 12s . . 232, 2,0 Tverman r. Smith (1856), 25 L. .J. Q. B. 359 ; E. & B. 719 ; 2 -hir. "N. S. 800 82 Tyler's E.'^tate, In re (I860), 8 W. R. 540 200 Tyson r. Mavor of London 1871). L. R. 7 C. P. 18 ; 41 L. .J. ( '. P. ; 25 L. T. 64«); 20 W. R. 112 01,30/ U. UXDERWOOD V. Bedford and Cambridge Railway Cf,m].any (1861), 31 L. J. C. P. 10; 11 C. B. X. S. 442 ; 5 L. T. .581 ; Id W. R. 100 . 93, 107 United Kingdom As.sociation v. Houston [1896], 1 Q. B. 567 ; 65 L. .1. Q. B. 484 ^J82 United Land Companv r. Great Ea.stern Railway Conq.any (1875), L. R. 10 Ch. App. 586 ; 44 L. J. Ch. 685 ; 33 L. T. 292 ; 23 W. R. 896 .. ^ , • 'i*^'2 Uttley F. Todmorden Local Board (1874 1, 44 L. .J. ('. P. 19 ; 31 L. 1. 445 ; 39 J. P. 56 •'^23 Uxbrid"e and Rickmansworth Railwav Company, In re (1890), 43 Ch. D. 536 ; 59 L. J. Ch. 409 ; 62 L. T. 347 ; 38 W. R. 644 . 41, 428, 616 liv 'J\i]i]f of Cases. PAGE Vale of Neath Railway Conipanv, lu', (1866), "W. N. 78 . . . 209 Vanderbylr. McKeinia (1868), L.'E. 3C. P. 2r)2 (j79 Yane v. Cockermoutli, &c., Railway Company (1865), 12 L. T. 821 ; 13 ' W. R. 1015 " 50 Vaudrey's Trusts, Ex parte (1861), 3 Giff. 224 ; 30 L. J. VA\. 885 . . 235 Yanghan v. Taff Yale Railway Company (1860), 5 H. & X. 679 ; 29 L. J. Ex. 247 ; 2 L. T. 394 ; 8 W. R. 594 ; 6 Jur. N. S. 899 . .167 Ya^vdl•ey r. Simpson [1896], 1 Ch. 169 ; 65 L. J. Cii. 369 ; 44 W. R. 123 686 Veal r. Veal (1867), L. R. 4 Eip 115 ; 36 L. J. Cli. 816 . . 210 Yerney's Settled Estates, /// re [1898], 1 Ch. 508 ; 67 L. J. Ch. 243 ; 78 L. t. 191 ; 46 W. R. 348 704,711 Vernon r. Earl Manyers (1861), 11 W. R. 133 194 W. Wade, In re (1849), 1 H. & Tw. 202 34 Wadham v. Marlowe (1807), 8 East 314 (n) 34 V. North-Eastern Railway Company (1884), 14 Q. B. D. -47; 16 Q. B. D 227 ; 55 L. J. Q. B. 272 ; 54'L. J. Q. B. 344 ; 52 L. T. 894 ; 34 W. R. 342 ; 49 J. R 299 151, 157, 176 "Wainwright r. Ramsden (1839), 5 M. & ^Y. 6o2 ; 1 R. V. 714 . . 310 Wakefield v. Llanelly Railway and Dock Company (1865), 34 Beay. 245 ; 12 L. T. 509 ; 13 W. R. 823 ; 3 De G. & Sm. 11 . . 93, 108 Wakefield Local Board r. West Riding and Grimsby Railway Company (1865), L. R. 1 Q. B. 84 ; B. & S.'794 ; 10 Cox^C. C. 162 ; 35 L. J. M. C. 69 ; 14 AV. R. 100 13, 358 Wale r. AVestminster Hotel Company (1860), 8 C. B. N. S. 276 ; 9 W. R. 14 ; 7 Jur. X. S. 26 . . .' 4 Walker, In n (1851), 20 L. J. Ch. 474 ; 7 R. C. 129 ; 15 .hu. 161 . 233 Walker and Beckenham Local Board, //( re (1884), 50 L. T. 206 ; 48 J. P. 264 520, 525 AValker & Son and Brown, /// re (1882), 9 (). B. D. 434 ; 51 L. .1. (,). B. 424 ; 30 W. R. 703 97,684 Walker's Estate, He (1853), 1 Drew. 508; 22 L. J. Cli. 888 ; 1 W. R. 378 ; 17 Jur. 706 192 , In re [1894], 1 Cli. 189 ; 63 L. J. Ch. 314 ; 70 L. T. 259 . .712 Walker c. London and Blackwall Railway Company (1842), 3 Q. B. 744 ; 12 L. J. Q. B. 88 ; 3 G. & D. 549 ; 3 it C. 390 ; 7 Jur. ;j23, 1154 . . . . . . . . . . 79, 116 • V. Ware, Wadham, and Buntingford Railway Company (1865), L. R. 1 Eq. 195 ; 35 L. J. Ch. 94 ;' 35 Beav. 52 ; 13 L. f. 517 ; 14 ^Y. R. 158 24, 106, 262 Wallace. iV^var^fj [19021. 2 K. B. 488 76 Wallace'^. Greenwood (1880), 16 Ch. D. 362 ; 50 L. J. Cli. 2^9 : 43 L. T. 720 200 Walsh's Trusts, In re (1881), 7 L. R, Ir. 554 217 WarLurtcm v. Haslingden Local Board (1879), 48 L. J. Q. B. 451 . 521, 692 Ward, Kr parte (1848), 2 I)e G. & Sm. 4 ; 17 L. J. Ch. 249 ; 5 R. C. 398; 12 Jur. 322 217 Ward, /// re (1895), ^V. X. 41 710 AVare, In re (1854), 9 Ev. 395 ; 23 L. J. Ex. 145 ; 7 R. C. 780 . 79, 305 Ware r. London and Brighton and South Coast Railway Company (1882), 52 L. J. Ch. 198 ; 47 L. T. 541 ; 31 W. R. 228 . \ 319 V. Regent's Canal Comi>any (1858), 3 De G. & J. 212 ; 28 L. J. Cli. 153 ■ 46 Warwick, The (1890), 15 P. 189; 63 L.T. 561 693 Waterl'ord ami Limerick Bailway Company, In re, Kr jMrte Harlech [1896], 1 Ir. L. R. 507 . . . " . . . . • • 241 Wiiterioid and Limerick Railway Company r. Kearney (1860), 12 Ir. C. L. 224 ' 386 Waterton v. Burt (1870), 39 L. J. Ch. 425 ; 18 W. R. 683 . .249 'L'dhlc of Cases. Iv PAGE Watkins v. Great Xorlliern Railway Company (1851), 10 Q. B. 901 ; 20 L.J. Q.B. 391 368,393 \Vatsun,/uj-e (1864), 10 Jur. N. S. 1011 . . • ^- _ ■ ^"^ Watts V. Watts (1874), L. R. 17 E-i. 217 ; 43 L. J. Cli. 77 ; 29 L. T. 071 ; 22 W. E. 105 l'>2 Webb c. Direct Loudon and PorlsmouLh Itadway (Juuipaiiy (1852l, 3 Ue G. M. & Cx. .")21 ; 9 Hare 129 ; 21 L. J. Cli. 3:J< ; 10 Jur. 323 -3 r Manchester and Leeds RaiUvav Company (1839), 4 My. ^: Cr. 116 ; 1 R. C. 570 -i'S -^l Webber v. Lee (1882), 9 Q. R. D. 315 ; 51 L. J. Q. R. 485 ; 4, L. 1. 215 ; 30 W. R. 800 ; 47 J. P. 4 162 AVebster, Kc parte (1866), W. X. 240 . . • •.•.•_• '^'^^' AVebster t'. South-Easlern Railway Company (1851), 1 Sim. X. S. 2-2 ; 20 L. J. Cli. 194 ; 6 R. C. 098 ; 15 Jur. 73 08 Webster's Settled Estates, In re (1854), 2 Sm. & G. Ai>p. vi. . . . 20o Weld I'. Soutli-Western Raihvav Company (1863), 32 Reay. 340 ; 33 L.J. Cli. 142; 9 Jur. N.S. 510 ^'^>, ^^ Wells V. Chelmsford Local Board of Health (1880). 15 Cli. D. 108 ; 40 L. J. Ch. 827 ; 43 L. T. 378 ; 29 \\. R. 381 ; 45 J. P. 6 . 221 r London, Tilbury, and Southend Railway Company (1877), 5 Ch. D. 126 ; 37 L. T." 302 ; 25 W. R. 325 392 West London Dairy Society v. Abbott (1881), 29 W. R. 584 ; 44 L. T. 370 ......•■•••• *^^^ West Ridin^ and (irimsby Railway Company v. Wakefield Local Board (1864), 33 L. J. M. C. 174 ; 5 B. & S. 478 ; 12 W. R. 1076 ; 10 Jur. X. S. 1046 '^^"^ AYest Riding and Lancashire Railway Bill, Li re (1876), A^ . ^. 80 . 246 AYestminster (Dean and Cliapter of), Ex parte (1859), 28 L. J. Cli. 144 ; 26Beay. 214; 18 Jur. 1113 ^15 AYhatley r. Morland(1833i, 2 Dowl. 219 93 AYheeler v. Metropolilan Board of AYorks (1869), L. R. 4 E.\. 3()3 ; 38 L. J. Ex. 165 -^34 White V. Commissioners of Public AYi irks (1870), 22 L. T. 501 . . 141 , Ex parte, In re Great Western Railway Company (18401, 9 L. J. Ex. (iuEq.) 9 , ■, ■ ^^' AVhitehouse v. AA^olyerhaniplon Railway Company (1869), L. R. 5 Ex. ; 39 L. J. E.V. 1 ; 21 L. T.^ 558 421 Whitfield (Incumbent of), Ex parte (1860), 1 J. & H. Olo ; 30 L. J. Ch. 816 ; 9 AY. R. 704 ; 7 Jur. X. S. 9ni) 194,237,238 Whitmore v. Smith (1862), 31 L. J. Ex. lo* ; 5 L. T. 012 ; 10 AY. R. 253 ; 8 Jiiv. N. S. 514 107 AVhitwoi-th, Ex purle Curate of (1871), 24 L. T. 126 ... • 214 AA'ickham v. Hawker (1840), 7 AI. & ^Y. 03 ; 10 I-. J. Ex. 163 . . 102 AA'idnes Alkali Company r. Shettield and Alidland Railway Company's Committee (1877), 37 L. T. 131 "5 AA^i-ht, In re (1857) AY. R. 718 194 AYigram v. Frver (1887), 30 Ch. D. 87 ; 50 L. J. Ch. 1098 ; 57 L. T. 255 ; 36 AY'! R. 100 "^-"^ -'^^ AA'ilkes' Estate, In re (1880), 16 Ch. D. 597 ; 50 L. J. Ch. 199 . . 21.i AYilkes v. Hunoerford Alarket Company (1835), 2 Bin- X. C. 281 . . 157 AA' ilkins v. Mayor of Birmingham (1883), 25 Ch. D. 78 ; 53 L. J. Ch. 93 ; 49 L. T. 468 ; 32 W. R. 118 ; 48 J. P. 231 . . 65, 311, 582, 602 Wilkinson, Ex parte (1849), 3 De G. & S. 633 ; 19 L. J. Ch. 257 ; 14 Jur. 301 ^05,219 AYilkinsou r. Hall, &c., Railway and Dock Company (1882), 20 Ch. 1). 323 ; 51 L. J. Ch. 788 ; 46 L. T. 455 ; 30 AY. R. 017 . 50, 300, 402 r. Schneider (1870), L. R. 9 Eq. 423 ; 39 L. J. Ch. 410 . . .210 AYilkinson's Estate, //* re (1868), 37 L. J. (.h. 3S4 ; 18 L. T. 17 ; 10 AV.R.537 . . . . ' 237 AYilkinson's Settled Estates, In re (1869), L. R. 9 Eq. 71 . . • 209 AYilleyi;. South-Eastern Railway Company (1849), 1 AI. & G. 58 ; 18 L. J. Ch. 201 2^8, 200, 201 Ivi T((hlc of Cases. PAGE Willesden Local Board and Wright, /// r>- [1896], 2 g. 13. 417 ; 65 L. J. Q. B. 567 ; 75 L. T. 13 ; 44 W. R. 676 ; 60 J. P. 708 (n) . . .694 Wille^iford v. Watson (1873), L. R. 8 Ch. 473 ; 42 L. J. Ch. 447 ; 28 L. T. 428 ; 21 W. R. 350 685 William of Kyiigeston Cliarity, lie (1881), 30 W. R. 78 . . . . 206 Williams v. Avlesburv and Buckingham Railway Company (1873), 28 L. T. 547 ; 2i W. R. 819 . . . " 263 (1874), L. R. 9 Ch. App. 684 ; 43 L. J. Ch. 825 ; 31 L, T. 521 . 195 Williams V. East London Railway Company (1869), 21 L. T 524; 18 W. R. 159 . . . . " 305 Williams v. Great Eastern Railway Company (1868), 18 L, T. 458 ; 11 W. R. 821 262 i". South Wales Railway Company (1849), 3 De G. & S. 354 ; 13 Jur. 443 . . ■' 68 V. Ware (1888), 57 L. J. Ch. 497 ; 58 L. T. 876 . . . . 210 and Stepney, In re [1891], 2 Q. B. 257 ; 60 L. J. Q. B. 635 ; 65 L. T. 208 ; 39 W. R. 533 678,681,684,697 Williams' Estate, In re (1871), L. R. 12 Eq. 4.s8 231 Willoughby r. Willoughhy (1845), 9 Q. B. 923 ; 16 L. J. Q. B. 251 ; 11 Jur. 902 91 Wilson r. Allen (1820), 1 J. & W. 611 ; 21 R. R. 255 . . . . 284 V. Caledonian Railway Company (1850), 20 L. J. Ex. 6 ; 5 Ex. 822 ; 6 R. C. 772 ; 15 Jur. 17 426 Wilson's Estates, In re Sir Thomas (1862), 32 L. J. Ch. 191 ; 3 D. J. & S. 410 ; 2 J. & H. 619 ; 7 L. T. 772 ; 11 W. R. 294 ; 9 Jur. N. S. 1043 . 213, 288 Wilson and the Eastern Counties, &c., Transport Company, In re [1892], 1 Q. B. 81 ; 61 L. J. Q. B. 237 ; 65 L. T. 853 . . . 681, 688, 697 Wilson V. Foster (1859), 26 Beay. 398 ; 28 L. J. Ch. 410 ; 7 W. R. 172 ; 5 Jur. N. S. 113 233 V. W^est Hartlepool Railway Company (1865), 2 D. J. & S. 475 ; 34 Beay. 187 ; 34 L. J. Ch. 241 ; 11 L. T. 692 ; 13 W. R. 361 ; 11 Jur. 124 20 Wimbledon and Dorking Railway Act, In re (1864), 9 L. T. 703 . . 266 Winchester (Bishop of),'^:'; parte (1852), 10 Hare, 137 ; 16 Jur. 649 . 217 Winchester (Bishop of) v. Mid-Hants Railway Company (1867), L. R. 5 En. 17 ; 37 L. J. Ch. 64 ; 17 L. T. 161 ; 16 W. R. 72 . . 24, 264 Winchester College, Exparte Warden of (1865), 14 L. T. 543; 14 W. R. 788 .. ' 210 Winder, Expurfe (1877), 6 Ch. D. 696 ; 46 L. J. Ch. 572 ; 25 W. R. 768 221, 225 Windsor, &c., Railway Company, In re (1849), 12 Beay. 522 . . . 231 Wine V. Tottenham, &c.. Junction Railway Company (1868), L. R. 3 Ch. App 740 ; 37 L. J. Ch. 654 ; 16 AV. R. 1098 ... 24, 106, 262 Winter v. Lord Anson (1823), 1 S. & S. 434 ; 3 Russ. 488 . . . 262 AViseman r. Booker (1878), 3 C. P. U. 184 ; 38 L. T. 292 ; 26 AV. R. 634 405 AA^ombwell v. Barnsley Corporation (1877), 36 L. T. 708 .. . 101 AA^'ood V Charing Cross Railway Company (1863), 33 Beay. 290 . . 68 AA^ood V. Billies [1891], 61 L. J. Ch. 158 86 AVood's Estate, In re (1870), L. R. 10 Eq. 572 ; 40 L. J. Ch. 59 ; 23 L. T. 430; ]9 AV. R. 59 218 (1886), 31 Ch. D. 607 ; 55 L. J. Ch. 488 ; 54 L. T. 145 ; 34 AV. R. 375 .......••••• 231 AA^ood's SettledEstates (1875), L. R. 20 Eq. 372 202 AA^ood V South Staffordshire Railway Company (1849), 1 M. & G. 278 . 368 V. Stourbridge Uailway Company (1864), 16 C. B. N. S. 222 159, 175 AA^oodburn's Trusts, /h r.Mi865), 13 L. T. 237 232 AAV.dward v. Pratt (1873), L. R. 16 E.j. 127 ; 42 L. J. Ch. 891 . . 210 Woollcy'sEstate, /urc (1853), 17 Jur. 850 235 AA^ooton's Estate, In re (1890), AV. N. 158 709 AA'ootfon's Estate, In re (1866), L. R. 1 Ei[. 589 ; 35 L. J. Ch. 305 ; 14 L. T. 125 ; 14 AV. R. 469 215 AA^'orsley v. South Deyon Railway Company (1851). 16 Q. P>. 539 ; 20 L J. Q. B. 254 ; 15 Jur. 970 " 11,112,114,313 AA^rey's Settlement. In re (1865), 12 L. T. 171 ; 13 AV. R. 543 ; 11 Jur. iS\ S. 296 205 Table of Cases. Ivii PAGE Wri-lit, Soixn-^eClSSl), 2 B. & Ad. 348 151 Wrigllt'^^ Settled Estates (1900). 83 L. T. 159 712 Wvi-ht's Trusts, In re (1883), 24 Ch. D. 662 ; 53 L. J. Ch. 139 . 20], 709 Wri'dey v. Lancashire and Yorkshire Railway Company (1863), 4 Gift". 352 ; 8 L. T. 267 ; 9 Jur. N. S. 710 . ^ 47 Wyatt V. Gems [1893], 2 Q. B. 225 ; 62 L. J. M. C. 158 ; 69 L. T. 456 ; 42 W. R. 28 ; 5 R. 507 ; 57 J. P. 665 467 Wvcombe Railway Company r. Donnin<:,'ton Hospital 11866), L. R. 1 Ch. App. 268 ; 14 L. T. 179 ; 14 W. R. 359 ; 12 Jiir. X. S. 347 . 36, 106 Yates, ^.oj^rtWe (1869), 20 L. T. 940; 17 W. R. 872 . . . .243 Yates 1-. Mayor of Blackburn (1860), 29 L. J. Ex. 447 ; 6 H. & N. 61 . 86, 96, 97 Yeadon Local Board and Yeadon "Waterworks Company, In re (1889), 41 Ch. D. 52 ; 58 L. J. Ch. 563 ; 60 L. T. 550 ; 37 W. R. 360 . . 521 Yeates, In re (1848), 12 Jur. 279 239 Youl, In re (1873), L. R. 16 E|. 107 ; 42 L. J. Ch. 9()0 . . . .209 Young V. Corporation of Leamington (1883), 8 A. C. 517 ; 52 L. J. Q. B. 713 ; 49 L. T. 1 ; 31 W. R. 925 21 Ystalfera Iron Company v. Neath and Brecon Railway Company (1873), L. R. 17 Eq. 142 ; 43 L. J. Ch. 476 ; 29 L. T. 662 ; 22 W. R. 149 44, 59 Zalixoff v. Hammond [1898], 2 Ch. 92 ; 67 L. J. Ch. 370 ; 78 L. T. 456 686 Zelma Gold Mining Company v. Hoskins [1895], A. C. 103 ; 64 L. J. P. C. 45 ; 72 L. T. 32 : 11 R. 350 697 Iviii ERRATA AND ADDENDA. Page 18G— Line 11 from bottom; for " coiu'se " read "cause." ,, 559 — The words "whether in obedience to anj- requisition or not," in the third line of sect. 19 of the Elementary Education Act, 1870, are repealed by the Education Act, 1902. PART I. THE LANDS CLAUSES CONSOLIDATION ACT, 1845, AND OTHEE STATUTES. L.C. f] A CODE LAW OF COMPENSATION. THE LANDS CLAUSES CONSOLIDATION ACT, 1845, 8 & 9 Vict. c. 18. All Act for consolidating in one Act certain Provisions usuaJhj inserted in Acts authorizing the taking of Lands for TJndertcddngs of a pnUic Nature. [8th May, 1845. [Whereas it is expedient to comprise in one General Act sundry provisions usualhj introduced into Acts of Parliament relative to the aapiisition of lands required for iindertaldngs or works of a public nature, and to the compensation to he made for the same, and that as well for the purpose of avoiding the necessitij of repeating sucli provisions in each of the several Acts relating to such undertakings as for ensuring greater uniformity in the provisions themselves : Mag it therefore please Your Majesty that it may he enacted ; and he it enacted by the Queens most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that] this Act shall apply to every undertaking authorised by Act to apply any Act which shall hereafter be passed, and which shall l^if^"""^"'- authorise the purchase or taking of lands for such under- authorised by taking, and this Act shall be incorporated with such Act ; j^f^/j. ^I'^l and all the clauses and provisions of this Act, save so far as passed. they shall be expressly varied or excepted by any such Act, shall apply to the undertaking authorised thereby, so far as the same shall be applicable to such undertaking, and shall, as well as the clauses and provisions of every other Act which shall be incorporated with such Act, form part of such Act, and be construed, together therewith, as forming one Act, The portion of this section in italics has been repealed by the Statute Law Revision Act, 1891 (54 & 55 Yict. c. 67), s. 1. It 1—2 4 Code of the Law of Compensation. Sect. 1, is printed here iu full, because, before its repeal, it was incor- porated in other Acts of Parliament, and with respect to these the section should be read in its original form. Meaning of By the Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 23, the Clauses Acts." expression "Lands Clauses Acts " shall mean : — (a) As respects England and Wales, the Lands Clauses Consoli- dation Act, 1845, the Lands Clauses Consolidation Acts Amend- ment Act, 1860, the Lands Clauses Consolidation Act, 1869, and the Lands Clauses (Umpire) Act, 1883, and any Acts for the time being in force amending the same. By sect. 8 of the same Act it is enacted that "Every section of an Act shall have effect as a substantive enactment without introductory words." Lands Clauses ARTICLE 1. — The Lands Clauses Acts are incorporated in Acts Act incorpo- passed prior to the Lands Clauses Consolidation Act, 1845, where such r3,tp(l in earlier Acts. Acts have been varied by any Act passed since the Lands Clauses Consolidation Act, 1845. In Lancashire and Yorkshire Railway ComjJanij v. Evans (a) Sir John Piomilly, M.E., said: "Where there is an undertaking for which, subsequently to the passing of the Lands Clauses Consoli- dation Act, another Act passes, which authorises the taking of other lands for that undertaking, then the Lands Clauses Consolidation Act applies to the whole undertaking as if it had been always applic- able to it so far as any of its provisions remain applicable, or there is anything to be done under it." Lands Clauses ARTICLE 2. —Where an Act is in the nature of a purely private ^or*:)orated"in estate Act, and where the land sought to be acquired is not for an private estate undertaking of a public or quasi-public nature, the Lands Clauses Consolidation Act is not incorporated. In Wale v. Westminster Hotel Company (b) it was held that the company was not bound to summon a jury to assess the amount of compensation on the ground that the Act was in the nature of a private estate Act, and that it was expressly stated not to be a public Act. The object of the Act in that case was merely to give a certain benefit to the company in respect of a lease which had been conditionally granted to them. (a) (1851), 15 Beavan, 322 ; S. C. at law, 1 El. & Bl. 754 ; 22 L. J. Q. B. 254; 17 Jur. 878. See also ^'.c parte Eton CvUeyc (1851), 20 L. J. Ch. 1 ; 15 Jur. 45. {b) (1860), 8 C. B. N. S. 276; 9 W. E. 14 ; 7 Jur. N. S. 26. See also Be Sion College (1888), 57 L. T. 743. Act. The Lands Clauses Consolidation Act, 1845. 5 ARTICLE 3. — In adjusting the general provisions in the general Sect. l. Act to the particular provisions of the special Act where the Lands ^ ~ ,., . ... -1 ■ T .1 ■ 1 A i X In adjusting Clauses Consolidation Act is incorporated with the special Act, "except provisions of where expressly varied by the special Act," considerations of reason Lands Clauses , . ,, - . .. ..., Acts considei- and justice, and the universal analogy of such provisions m similar ^tions of Acts of Parliament, must be borne in mind and ought to have much reason and justice must weight and force. have weight. This was the decision of the House of Lords in Metropolitan District RaUicai/ Company v. Sharpe (c), and the above is almost verbatim in the words of Lord Selborue ((/). lu Reri. V. Ijord Mayor of London {e) Blackburn, J., in delivering the judgment of the Court (Cockburn, C.J., Blackburn and Lush, JJ.), said: "The Lauds Clauses Consolidation Act was passed to make a general code regulating the mauner in which lands might be taken under the authority of Parliament, and compensation made for injury occasioned by what was thus legalised by the Legislature ; and we think that, in construing any Acts of Parliament passed since that Act, we ought to suppose that the Legislature intended to follow the code, except where, by the express language of the special Act, or by necessary intendment from its provisions, it appears that the intention of the Legislature was in some particular to depart from that general code, and substitute something else." Where a special Act which incorporated the Lauds Clauses Con- solidation Act provided compensation for certain improvements, but not for others, it was held that compensation could nevertheless be given in respect of the lands injuriously affected by the latter, by virtue of sect. 68 of the Lands Clauses Consolidation Act (/ ). ARTICLE 4.— It is not necessary to make special provision in the special Act for the incorporation of the Lands Clauses Consolidation Act. In .SY. Sepulchre'' s Case, In re Westminster Bridge Act (y), it was held by Lord Westbury that if the particular Act gives in itself a complete rule, the expression of that rule would undoubtedly (c) (1880), 5 A. C. 425 ; 50 L. J. Q. B. 14 ; 4.3 L. T. 617 ; 29 W. R. 617 ; 44 J. P. 716. See also Ex parte Rai/uer (1878), 3 Q. B. D. 446 ; 47 L. J. Q. B. 660 ; 39 L. T. 232 ; In re Cherrifs Settled Estate (1862), 4 D. F. & J. 332 ; 31 L. J. Ch. 351; 10 W. E. 305; 6 L. T. 31; and Tn re Mills' Estate (1886), 34 Ch. D. 24 ; 56 L. J. Ch. 60 ; 55 L. T. 465 ; 35 W. E. 65 ; 51J. P. 151. (d) 5 A. C. 433. {e) (1867), L. E. 2 Q. B. 292 ; 16 L. T. 280. See also Great Western Rml- way Company V. Hwindon, jleboiie Vtstrij (1876), 35 L. T. 129; 24 W. E. 848. 21ie Lands Clauses Consolidation Act, 1845. 7 shall constitute the "Special Act," a literal construction must not Sect. 2. always be given to the enacting words. This question arose in an Irish case(i), where it was held hy the Master of the Eolls that a literal construction could not be given to the words of the Military Lands Act, 1892, and that the "Special Act" within the meaning of sect. 123 of the Lands Clauses Consoli- dation Act, 1845, was the Military Lands Act, 1892, together with the statute confirming a provisional order made thereunder. By the Lands Clauses Act Amendment Act, 1860 (23 & 24 Vict. " Promoters." c. 106), s. 7 0), the Secretary of State for War has the powers of "promoters" for the purposes therein mentioned. 3. The following words and expressions, both in this sect. 3. and the Special Act, shall have the several meaninos hereby -, . , 11 1 1 1 1 • • 1 • 1 Interpreta- assigned to them, unless there be somethmo- either m the tions in this subject or context repugnant to such construction ; (that is wciafAct • to say,) Words importing the singular number only shall include number : tlie plural number, and words importing the plural number only shall include the singular number : Words importing the masculine gender only shall include gender : females : The word "lands" shall extend to messuages, lands, -'lands:" tenements, and hereditaments of any tenure : The word "lease" shall include an agreement for a -'lease:" lease : The word " month" shall mean calendar month : -month:" The expression "Superior Courts" shall mean Her "Superior ALajesty's Superior Courts of Record at Westminster ^•^•^i'^^-" or Dublin, as the case may require : The word "oath " shall include affirmation in the case of ^-oath " Quakers, or other declaration lawfully substituted for an oath in the case of any other persons exempted by law from the necessity of taking an oath : The word "county" shall include any riding or other '-county:" like division of a county, and shall also include county of a city or county of a town : The word "sheriff" shall include under-sheriff, or other "the legally competent deputy, and where any matter in sheriff: ' relation to any lands is required to be done by any sheriff, or by any clerk of the peace, the expression " the sheriff," or the expression " the clerk of the (0 Hill V. Haire [1899], 1 Ir. L. E. 87. U) I'ost. Sect. 3. "the clerli the peace : of "justices :" "two justices : " " owner : " ' the bank. " Lands." Code of the Law of Compensation. peace," sliall in such case be construed to mean the sheriff or the clerk of the peace of the county, city, borough, liberty, cinque port, or place where such lands shall be situate ; and if the lands in question, being the property of one and the same party, be situate not wholly in one county, city, borough, liberty, cincjue port, or place, the same expression shall be con- strued to mean the sheriff or clerk of the peace of any county, city, borough, liberty, cinque port, or place where any part of such lands shall be situate : The word "justices" shall mean justices of the peace acting for the county, city, liberty, cinque port, or place where the matter requiring the cognizance of any such justice shall arise, and who shall not be interested in the matter ; and where such matter shall arise in respect of lands being the property of one and the same party, situate not only in any one county, city, borough, liberty, cinque port, or place the same shall mean a justice acting for the county, city, borough, liberty, cinque port, or place where any part of such lands shall be situate, and who shall not be interested in such matter ; and where any matter shall be autho- rised or required to be done by two justices, the expression " two justices " shall be understood to mean two justices assembled and acting together : Where under the provisions of this or the Special Act, or any Act incorporated therewith, any notice shall be required to be given to the owner of any lands, or where any Act shall be authorised or required to be done with the consent of any such owner, the word " owner " shall be understood to mean any person or corporation who, under the provisions of this or the Special Act, would be enabled to sell and convey lands to the promoters of the undertaking : The expression "the bank" shall mean the Bank of England where the same shall relate to monies to be paid or deposited in respect of lands situate in England, and shall mean the Bank of Ireland where the same shall relate to monies to be paid or deposited in respect of lands situate in Ireland. The definition of " lands " in this Act is very similar to that in the Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 3, where it is enacted that in every Act passed after 1850, tlie expression " land " shall include " messuages, tenements, and hereditaments, houses, and buildings of any tenure." The Lauds Clauses CousoUdatiou Act, 1845. "Messuage.' Land has, in its legal significatiou, " an indefinite extent, Sect. 3. upwards as well as downwards. Ciijus est solum, ejus est usque ad „, „ ca'lum, is the maxim of the law, upwards ; therefore no man may erect any building, or the like, to overhang another's land. And downwards, whatever is in a direct line between the surface of the land and the centre of the earth, belongs to the owner of the surface ; as in every day's experience in the mining countries. So that the word ' land ' includes not only the face of the earth, but everything under it or over it " (A). "'Tenement' is a word of still greater extent [i.e., than "Tenement.' 'land']; and though in its vulgar acceptation it is only applied to houses and other buildings, yet in its original, proper, and legal sense it signifies everything that may be holden, provided it be of a permanent nature ; whether it be of a substantial and sensible or of an unsubstantial, ideal kind " (/). " Messuage " includes "dwelling-house, barn, dove-house, and buildings adjoining, orchard, garden and curtilage, i.e., a little garden, yard, field, or piece of void ground lying near and belong- ing to the messuage, and houses adjoining to the dwelling-house, and the close upon which the dwelling-house is built, at the most " (m). "Hereditament"' " is of as large extent as any w^ord, for whatso- ever may be iuhented, be it corporeal or incoi-poreal, real, personal, or mixed, is an hereditament. By the grant, therefore, of all here- ditaments, do pass honours, isles, castles, seigniories, manors, messuages, lands, meadows, pastures, woods, moors, marshes, furses, heaths, reversions, commons, rents, vicarages, advowsons in gross, and the like things which the grantor hath in fee simple at the time of the grant whether he hath it by purchase or descent " (n). "An hereditament," says Edward Coke, "is by mncli the largest and most comprehensive expression, for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed " (o). In Metropolitan Baihcai/ Company v. Fouier (jj) the House of Tunnel Lords held that a tunnel was a hereditament, and as such liable to land-tax. " Incorporeal hereditaments are of ten sorts : advowsons, '• Heredita- ment." (Jc) 2 Blackstone's Comm. p. 18. {1} 2 Blackstone's Comm. pp. 16, 17. (to) ShepparcVs Touchstone, pp. 93, 94. See notes to sect. 92, jjost. (71) Sheppard's Touchstone, pp. 90, 91. (0) 2 Blackstone's Comm. p. 17. {p) [1893], A. C. 416; 62 L. J. Q. B. 553; 69 L. T. 390; 42 W. E. 270; 57 J. P. 756 ; 1 E. 264. " Incorporeal heredita- ments ' 10 Code of the Law of Compensation. Sect. 3. tithes, commons, ways, offices, dignities, francliises, corodies or pensions, annuities, and rents " ((/). Annuity charged on land — here- ditament. Ferry — here- ditament. •' Of any tenure." " Heredita- ments" include in- corporeal and corporeal heredita- ments. ARTICLE 1. — An annuity charged on land is a " hereditament." So held in In re Brewer (r). AETICIE 2. — A ferry is a franchise and therefore a "hereditament." This was decided in lieg. v. Camhrian llailwaij Company (s), in which case it was held that where a ferry is injuriously affected by the construction of a bridge, which diverted traffic from the ferry, comj^ensation could be recovered under sect. 68. ARTICLE 3. — The words "of any tenure" are to be read as " of whatever tenure, if any." This was the decision of the House of Lords in Great Western Railway Comjyany v. Swindon and Cheltenham Railway Com- pany {t). In that case the judges held that "hereditaments" included incorporeal as well as corporeal hereditaments. Lord Cranvvorth had expressed a contrary opinion in PineJtin v. London and Blackwall Railway Company («), when he said : " Looking at the whole context the conclusion to which I have come is, that a hereditament there means a corporeal hereditament." In giving judgment in Great Western Railway Company v. Swindon and Cheltenham Railway Compa^nj {x), Lord Bramwell said, referring to Lord Cranworth's opinion : " But with profound respect for that most learned, able, and accurate lawyer, 1 have come to a different opinion, and for the following reasons : 1st, I think that as a matter of ordinary construction, where several words are followed by a general expression as here, which is as much applicable to the first and other words as to the last, that expression is not limited to the last, but applies to alL For instance, * horses, oxen, pigs, and sheep, from whatever country they may come,' the latter words would apply to horses as much as to sheep. And then the general words apply to those of the antecedent to which they are applicable and not to the others, and the words are to be read as ' of whatever tenure, if any.' 2nd, if the general expression is limited to 'hereditaments,' then it does not extend to messuages, lands, and {q) 2 Blackstone's Comm. p. 21. {r) (1875), 1 Ch. D. 409; 34 L. T. 4G6 ; 24 W. R. 4Go. (s) (1871), L. K. 6 Q. B. 422; 40 L. J. Q. B. 169; 25 L. T. 84 ; 12 W. It. 1138 {t) (1884), 9 A. C. 787 ; 53 L. J. Ch \h) (1855), 5 De Gex, M. & G. 861 Jur. N. «. 241. {«•) Stqira. 1075 ; 51 L. T. 798 ; 32 W. E. 957. ; 1 K. & J. 36; 24 L. J. Ch. 417 The Lands Clauses Consolidation Acty 1845. 11 tenements, excejit or included in hereditaments, which cannot be Sect. 3. the case. 3rd, if * hereditaments ' was put in to include incorj)o- real hereditaments we have not had any incorporeal hereditaments suggested to us which could he said to be subject to teinire. And that it was intended to include incoi-poreal hereditaments we ouglit to hold, not merely on account of the generality of the words, but also because it would be expedient to include incorpo- real hereditaments in sucli an Act as the Lands Clauses. For it is to be remembered that the Act is not applicable to railways only, but to all cases where land is required, and certainly some of those cases might include the requirement of easements. For instance, suppose a school was built, it might be of the greatest importance that it should at once acquire an easement of light or way. And especially is it to be remembered that the Lands Clauses Act is to be read in connection with the Special Act. 4th, unless the Lands Clauses Act enables the respondents to purchase this easement I do not find any machinery for fixing the price." Since the Judicature Acts the "Superior Courts" mean the "Supreme Supreme Court of Judicature in England, which includes the High Court of Justice and the Court of Appeal, and the Supreme Court of Judicature in Ireland, which includes the High Court of Justice in Ireland and the Court of Appeal. By the Oaths Act, 1888 (51 & 52 Yict. c. 46), s. 1, every "Oath"- person upon objecting to being sworn, and stating as the ground '"^^^^^^o^- of such objection that he has no religious belief, or that the taking of an oath is contrary to his religious belief, is entitled to affirm. The definition of the word " sheriti"" is governed by the words -Sheriff." " unless there be something either in the subject or context repugnant to such construction." Thus under sect. 39 the promoters cannot direct their warrant to the under-sheritf (_?/). By the Lands Clauses Consolidation Act Amendment Act, Westminster ]869, s. 3 (z), the high bailitf or his deputy is substituted for the i^iiJg/^ sheriff within the city of AVestminster. AETICLE 4. — Where the land injuriously affected is in a city and Where land the undertaking in the country, a jury in the city can assess the unje&ino- damages. in country." This was decided in lieg. v. Great Xorthern Rcuhcaij Compaiuj {a), where a jury of the city of Lincoln awarded compensation to a iy) Worshy v. ^outh Bevoit PuiiJiraij Company (1851), 16 Q. B. 539; 20 L. J. Q. B. 254; 15 Jur. 970; post, p. 112. (2) Post. (a) (1849), 14 Q. B. 25; 19 L. J. Q. B. 25; 6 Eail. Cas. 246; 14 Jur. 128. 12 Code of the Law of Comi^cnsation. Sect. 3 landowner in respect of the works of a railway company, by which he alleged his land was injuriously affected. The land was divided from the railway works by a river. The land was in the city and the works were not, and the land was injuriously affected because the company's works obstructed the access to a ferry over the river, and appurtenant to the land in question. Justice of the ARTICLE 5.— A justice of the peace may exercise ministerial peace. -j,^^ ^^^ judicial duties beyond the area of Ms commission. This was decided by the House of Lords in Kerr v. Ailsa{h), in which case it was held that a justice of the peace might administer oaths for affidavits outside the area of his commission. Justice — pecuniary interest — dis- qualification. Justices — bias. ARTICLE 6. — Where a justice has the slightest pecuniary interest he is disqualified from adjudicating upon a case, unless relieved by statute. This has been decided in a long series of cases, and the law is well stated by A. L. Smith, J., in Reg. v. Gaisfonl(c). He said : " It is well known that the same person shall not act both as accuser and judge ; and also that a man shall not act as a judge in a case in the decision of which he has a pecuniary interest, unless relieved by statute; the fact that a man has even the slightest pecuniary interest operates to disqualify him from adjudicating upon a case ; and there is here no statutory relief from such disqualification. On the question of bias apart from pecuniary interest, I entirely agree with the law as laid down by Cockburn, C.J., in Beg. v. Milledge " ((7). The fact that justices were shareholders in a railway company has been held to be a disqualification (r). Although a justice has no pecuniary interest he will be dis- qualified if there is a possibility of his having a bias in favour of one side or the other. The mere possibility of bias does not ijjso facto avoid the justice's decision. To have that effect the bias must bo shown to be real (/). Blackburn, J., in delivering (b) (1854), 1 Macq. H. L. 736. (c) [1892 , 1 a B. 381 ; 61 L. J. M. C. 50 ; 66 L. T. 24 ; 56 J. P. 247. {mmh'fii()ver>i of Seirers of Fohhinfj (1886), 11 A. C. 450 ; 56 L. J. M. C. 1 ; 55 L. T. 493; ";}4 W. E. 721; 51 J. P. 227; and Beg. v. Lee (1882), 9 Q. B. D. ;i94 ; 30 W. E. 750 ; 47 J. P. 118. Ma 2 (/) Eefj. V. Jiaiid (1866), L. E. 1 Q. B. 230 ; 35 L. J. M. C. 157; Beg. v. anchester, Hlieflield, and Lincolnshire Bailivny Company (1867), L. E. Q. B. 336; 36 L. J. Q. B. 171 ; 16 L. T. 173; 15 W. E. 676; Beg. v. Milledge (1879), 4 Q. B. D. 332; 48 L. J. M. 0. 139; 40 L. T. 748 ; 27 W. E The Lauds Clauses Cousolidatiou Act, 1845. 13 the judgment of the Court (Cockbuni, C.J., Blackburn and Sect. 3. Shea, JJ.), said: "Wherever there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be wrong in him to act ; and we are not to be understood to say, that where there is a real bias of this sort, the Court would not interfere." Where one iustice is interested the Court is improperly con- ^Vithdra^val of iutGrGstctl stituted, and it is no answer to the objection that there was a justice. majority in favour of the decision without reckoning the vote of the interested justice, or that the interested justice withdrew before the decision [g) ; or that he took no part until the other justices had come to a unanimous decision (//). ARTICLE 7.— Where justices are given power by statute to hear interested , -I nsticGS and determine notwithstanding the fact that they have an interest in statute— bias. the result they will be disqualified if there is any danger of bias. This is the result of a series of decisions. In Reg. v. Henley (/) Lawrance, J., said : " The cases are very strong as to the principle which ought to guide persons acting as justices, and they show most clearly that, if there is any danger of a substantial bias likely even unconsciously to influence a justice, he ought not to sit ; and it is unnecessary for me to refer to more than the very clear language of ]\Iellor, J., in Reg. v. Allan (k), that 'it is exceedingly desirable that justice should be administered by persons who could not be suspected of any, even indirectly, interested motive.' " ARTICLE 8.— An interested justice may act provided the parties Interested are aware of his interest and waive the objection. waiver by So held in Wakefield Local Board v. West Riding and Grimsby Railway Company {I), a case arising under sect. 3 of the Railway 659; Beg. v. Farrant (1888), 20 Q. B. D. 58; 57 L. J. M. C. 17 ; 57 L. T. 880; 36 W. R. 184; 52 J. P. 116; Req. v. Tooke (1884), 32 W. E. 753 ; 48 J. P. 661 ; R>'(') 54 & oo Vict. c. 67, s. 1. (ij) 52 & 53 Vict. c. 63. Act. T]ie Lands Clauses Consolidation Act, 1845. 15 some portion only of the provisions of this Act ; be it Sect. 5. therefore enacted, that, for the purpose of making any such ^^^ ^^ ^ incorporation, it shall he suthcient in any such Act to enact incorporated that the clauses of this Act with respect to the matter so Ictg."^^^^ proposed to be incorporated (descril)ing such matter as it is described in this Act in the words introductory to the enactment with respect to such matter,) shall be incor- porated with such Act, and thereupon all the clauses and provisions of this Act with respect to the matter so incorporated shall, save so far as they shall be expressly varied or excepted by such Act, form part of such Act, and such Act shall be construed as if the substance of such clauses and provisions were set forth therein with reference to the matter to which such Act shall relate. By sect. 35, sub-sect. 3 of the Interpretation Act, 1889 (r), " in Citation of any Act passed after the commencement of this Act a description or citation of a portion of another Act shall, unless the contrary intention appears, be construed as including the word, section, or other part mentioned or referred to as forming the beginning and as forming the end of the portion comprised in the description or citation." The words constituting the difterent headings to the various sections are as follows : — Sections 6 — 15. Purchase of Lands by Agreement. Sections 16 — 68. Purchase and Taking of Lands otherwise than by Agreement. Sections 69 — 80. Purchase-money or Compensation coming to parties having Limited Literests, or Prevented from Treating, or not making Title. Sections 81 — 83. Conveyances of Land. Sections 84 — 92. Entry upon Lands by the Promoters of the Undertaking. [Section 92 does not appear to have any connection with the preceding sections of this group.] Sections 93 — 94. Small portions of Intersected Laud. Sections 95 — 98. Copyhold Lands. Sections 99 — 107. Common or Waste Lands. Sections 108 — 114. Lands subject to Mortgage. Sections 115 — 118. Lauds charged with any Eent-service, Rent-charge, or chief or other Pient, or other Payment or Incum- brance not hereinbefore provided for. Sections 119 — 122. Lands subject to Leases. Section 123. Limit of Time for Compulsory Purchase. (r) 52 & 53 Yict. c. 63. 16 Code of the Law of Compensation. Sect, 5. Heading included or excluded in special Act. Sections 124 — 126. Interests in Lands which have by mistake been omitted to be purchased. Sections 127 — 132. Lands acquired by the Promoters of the Undertaking under the provisions of this or the Special Act, or any Act incorporated therewith, but which shall not be Required for the purposes thereof. Section 133. Land Tax and Poor Piate to be made good. Section 134. Service of Notices upon Company. Section 135. Tender of Amends. Sections 136 — 149. Recovery of Forfeitures, Penalties, and Costs. Sections 150 — 151. Provision to be made for affording access to the Special Act by all Parties Interested. Of the above sections 92 has no connection with the other sections of the same group ; and sects. 132 to 135 inclusive are in the nature of general provisions. ARTICLE 1. — Where the words of a heading are included in or excluded from any special Act, all the sections under that heading are included in or excluded from the special Act. In Ferrar v. Commissioners of Scirers in the City of London {s) the special Act excluded the provisions of the Lands Clauses Con- solidation Act " relating to the purchase and taking of lands otherwise than by agreement." It was held that sects. 16 — 68 inclusive were excluded by the foregoing provision. Cockburn, C.J., said : " We are all of opinion that that section [i.e., sect. 68] is not incorporated. For though sect. 2 incorporates in general the Lands Clauses Act, 1845, yet sect. 3 makes an exception of all that part of the Act which relates to the taking of lands otherwise than by agreement. Now, when we turn to that Act for our guidance as to what that portion is, we see that there, as in some other similar Acts, in order to avoid the necessity of inserting seriatim the clauses to be incorporated or to be excluded in an Act which it is intended shall incorporate part only of the provisions, it is provided that this partial incorporation may be made by incorporating or excluding in the mass the sections falling under a particular heading or title. Now, here we have a series of clauses under the heading ' with respect to the purchase and taking of lands otherwise than by agreement,' and this heading occurs between sects. 15 and 16, and introduces all the sections from sect. 16 up to sect. 68, no other heading occurring till after that (s) (18()9), L. R. 4 Ex. 227; 38 L. J. Ex. 102 ; 21 L. T, 295; 17 W. R. 709. Followed in Diniqey v. Mmjor »f London (1869), 38 L. J. C. P. 298; 20 L. T. 921; 17 W. R. 1106. The Lands Clauses Consolidation Act, 1845. 17 section, and then a new heading introducing sect. 69. It is, there- fore, quite impossible to say that sect. 68 is not to be considered as included under that heading ; it is necessary to make up the part introduced by the title prefixed to sect. 16, and which runs on to sect. 69. Being therefore included in that part, it is excluded by sect. 3 of the local Act." In Reg. v. Lord Mayor of London (t) the Special Act included the Lands Clauses Consolidation Act, 1845, except " the part with respect to the purchase and taking of lands otherwise than by aofreeraent." It was held that sects. 16 — 68, which come under the heading " with respect to the purchase and taking of lands otherwise than by agreement," were excluded ; but that the other clauses, which relate to the purchase and taking of lands otherwise than by agreement, but do not come under that heading, were not excepted. Sect. 5. ARTICLE 2. — Where a part of the Lands Clauses Act is expressed inclusion or to be incorporated or excluded by words other than those of an intro- ^Ji-ds othe/ ductory heading, the construction in each case depends upon the than , , headings. words used. This was decided in Eastern Counties Bailicay Conqyani/ v. Marriage {ii). The Lords asked for the opinion of the common law judges, but no general rule of construction was laid down. In giving his opinion, Channell, B., said : " These various headings are not to be treated as if they were marginal notes, or were intro- duced into the Act merely for the purpose of classifying the enactments. They constitute an important part of the Act itself. They may be read, I think, not only as explaining the sections which immediately follow them, as a preamble to a statute may be looked to, to explain its enactments, but as affording, as it appears to me, a better key to the construction of the sections which follow than might be afforded by a mere preamble." In Bruadbcnt y. Imperial Gas Comjyany (x), vchere the Special Act incorporated the Lands Clauses Act, 1845, except so much as related exclusively to the purchase and taking of lands b}- com- pulsion, it was held that sect. 68 was not excluded. In Hammersmith RaUicay Company v. Brand (j/) it was held (Lord Cairns doubting) that the headings of different portions of (t) (1867), L. E. 2 Q. B. 292 ; 16 L. T. 280. {u) (I860), 9 H. L. C. 32; 31 L. J. Ex. 73; 3 L. T. 60; 8 W. E. 748; 6 Jur. N. S. 53. (.r) (1859), 7 H. L. C. 600 ; 7 De Gex, M. & G. 436; 29 L. J. CK 377 ; 26 L. J. Ch. 276; 5 W. E. 272 ; 5 Jur. N. S. 1319. (y) (1869), L. E. 4 H. L. 171; 38 L. J. Q. B. 265; 21 L. T. 238; 18 W. E. 12. See also Latham v. La/one (1867), L. E. 2 Ex. 117 ; 36 L. J. Ex. L.C. 2 18 Code of the Law of Compeusatiou. Sect. 5. Sect. 6. Power to purchase lands by- agreement. " Lands. a statute are to be referred to, to determine the sense of any doubtful expression in a section under any particular heading. Where the provisions of the Lands Clauses Consolidation Act, 1845, were incorporated in the special Act, " except -where expressly varied by the special Act," Lord Selborne, L.C., said that in adjusting the general provisions in the general Act to the particular provisions of the special Act, considerations of reason and justice, and the universal analogy of such provisions in similar Acts of Parliament, ought to have much weight and force (z). And with respect to the purchase of lands by agreement, be it enacted as follows : 6. Subject to the provisions of this and the Special Act it shall be lawful for the promoters of the undertaking to agree w^ith the owners of any lands by the Special Act authorised to be taken, and which shall be required for the purposes of such Act, and with all parties having any estate or interest in such lands, or by this or the Special Act enabled to sell and convey the same, for the absolute purchase, for a consideration in money, of any such lands, or such parts thereof as they shall think proper, and of all estates and interests in such lands of what kind soever. ARTICLE 1. — "Lands" includes incorporeal hereditaments. The most common incorporeal hereditaments included in the word " lands " are easements. In Great Western Piaihcay Com- ixiny V. Swindon and Cheltenham Ilailwai/ Company (a) Lord Watson said : " I can see no reason for holding that in sect. 7, and other clauses of the Act which relate to purchase by agreement, the word ' lands ' must be restricted to corporeal hereditaments. If the landowner is willing to sell a right of use, and such a right is sufficient for all the purposes sanctioned by the special Act, I cannot conceive that it was the intention of the Legislature to enact that the landowner should not sell or the company purchase, that limited right. Granting, however, that the expression 'lands' in the Act of 1845 must, when the terms and context of the Act are alone regarded, bear a more restricted meaning than is assigned to it by the interpretation clause, it does not follow that it must continue to have the same limited meaning when its clauses are embedded in a context which enlarges the scope of the general Act. 17; 15 L. T. G27; lo W. E. 453; Lamj v. Ken- (1878), 3 A. C. 529, 536; and Urijdi, v. C'/rild (1851), 5 Ex. 368. (z) iil('trmpany v. Winter (1840), Cr. & Ph. .37 ; Crook v. Corporation ofSeaford (1871), L, E. 6 Ch. App. 551 ; 25 L. T. 1 ; 19 W, E. 938. (/) (1866), L. E. 2 C. r. 175 ; 36 L, J, C, P. 94 ; 15 L. T. 313 ; 15 W. E. 278; 12 Jur. N. S. 1016. (g) 27 & 28 Vict, c, 121, 2^<>st. (h) Catling v. Great Northern Railioay Company (1870), 21 L, T. 769 ; 18 W, E. 121. (/) Slirewsbiiry [Earl of) v. North Staffordshire Ruiltvay Comjtany (1865), L. E. 1 Eq, 593; 35 L. J. Ch. 156; 13 L, T. 648; 14 W, E. 220; 12 Jur, N. S. 63. (/.) (1868), L. E, 3 Ch, App. 306 ; 37 L. J. Ch, 313 ; 18 L, T, 69 ; 16 W, E. 547. See also Kemp v. South Eastern Railway Company (1872), L, E. 7 Ch. App, 364; 41 L, J, Ch. 404 ; 26 L. T. 110; 20 W. E, 306, The Lands Clauses Consolidation Act, 1845. 21 contained the words : "In case the company shall require any Sect. 6. additional laud belonging to the vendor, adjoining or near the land hereby agreed to be sold, for the said railways and works," and Lord Cairns, L.C., said that these words in the agreement must be read as if it ran : "In case the company shall require additional land for their railway and works within the time limited for the completion of their railway and works." ARTICLE 5. — An urban authority must contract in writing and Urban under seal in every case in which the value or amount exceeds £50. authority — contract under seal. It was held by the House of Lords in Young v. Corporation of Lcaminfjton (/), that sub-sect. 1 of sect. 174 of the Public Health Act, 1875, which enacts that " every contract made by an urban authority whereof the value or amount exceeds £50, shall be in writing and sealed with the common seal of such authority," is obligatory and not merely directory, and applies to an executed contract of which the urban authority have had the full benefit and enjoyment, and which has been effected by their agent duly appointed under their common seal. By the Local Government Act, 1894 (56 & 57 Vict. c. 73), the Contract hy urban authorities became urban district councils. Parish councils councils may contract "by an instrument executed at a meeting of the council, and under the hands or, if an instrument under seal is required, under the hands and seals, of the chairman presiding at the meeting and two other members of the council " {n). ARTICLE 6. — Where the promoters have power to pui'chase lands Contract to they must complete their contract within a reasonable time, and if |anfis!!lrea they fail the Court will decree specific performance. sonabie time — specific In Regent's Caned v. IFc/rc' (o) it was held that a contract for performance, the purchase of land under the Lands Clauses Act, 1845, is Contract complete — complete when notice to take the land has been served and the specific value has been fixed by an arbitrator appointed by the owner and pei'formance the company, and such a contract will be enforced in equity by a decree for specific performance, notwithstanding the special nro rision contained in the Act relating to compulsory purchase. Where a landowner has withdrawn his opposition to a railway Withdrawal of bill in consideration of the company agreeing to make a road and ^•i?^|,'"]°^jfl° performance. (/) (1883), 8 A. C. 517; 52 L. J. Q. B. 713; 49 L. T. 1 ; 31 W. E. 925 ; approving Hunt v. Wimbledon Local Board (1878), L. E. i C. P. D. 48; 48 L. J. C. P. 207. («) 56 & 57 Vict. c. 73, s. 3, sub-s. 9. (o) (1857), 23 Beav. 575; 26 L. J. Ch. 566; 5 W. E. 617; 3 Jur. N. S. 924. 22 Code of the Law of Compeusation. Sect. 6. No title— no decree. Agreement within Statute of Frauds — decree. Agreement to construct siding, &c. Wliere plain- tiff has material interest. Specific per- formance — leaseholds — covenants. Agreement to sell on condi- tion — specific performance. an approach in a particular manner, he is entitled to specific per- formance, and the company cannot set up the inconvenience to the puhlic hy the interference with the traffic as a reason for not performing their agreement (^)). The Court will not, in a suit on the part of a landoAvner against a railway company for specific performance of an agreement to take lands, make a decree where there has been no investigation of title, hut will refer it to chambers to see whether a good title can be made (q). In Tiu/e V. Binnlugham and Soutli-Western Railirai/ Comjmny (r) it was held that where the promoters enter into a written agree- ment for the purchase of land, it is immaterial whether the circum- stances which led them to enter into such a contract arose out of the Act of Parliament or Avere collateral to or independent of it. Lord Cranworth, L.C., said : " If, from any cause whatever, the promoters have bound themselves by a contract falling within the provisions of the Statute of Frauds to purchase an interest now vested in the plaintiff, at a given ascertained sum, they must complete it ; and the circumstance that the writing is to be found in part in some documents which were originally intended to be ancillary to another mode of enforcing the contract, namely, under the provisions of an Act of Parliament, seems to me to be wholly unimportant." In this case specific performance was decreed. In Li/tf<))i V. Great A^ortlunii Ilailiraij Company (s) it was held that specific performance would be decreed of an agreement to construct a siding and approaches thereto for the public use. In Stover v. Great Western Railicaij Company (t) the Court held that it had jurisdiction to decree specific performance of a contract by the defendants to do work in the performance of which the plaintift' had a material interest, and which is not capable of adequate compensation in damages. Upon a decree of specific performance of leaseholds the promoters will be compelled to accept an assignment " with all proper covenants on each side"0^). In Sanderson v. Coekernwuth and Worh'uHjton IlaUway Com- fany (.r) the owner of lands agreed in writing to sell a portion of {ji) Raphael v. Thames Valley Railway CovqKiiiy (ISOO), L. E. 2 Cli. Ajjp. I-IT ; 30 L. J. C'h. 209; Eastern Counties Rail/vat/ Coinixon/ v. llawkei (185>5), 5 II. L. C. 331 ; 24 I.. J. Ch. 001 ; 25 L. T. O. S. 318 ; 3 W. 11. 009. (i/) (I'lnisfon v. East Gluurestersliire Railioai/ Cojnpa/n/ (1868), 18 L. T. 8. (r) (1853), 3 De G. M. & G. 058 ; 2 Eq. E. 80; 2 W. E. 22. (.s) (1850). 2 K. & J. 394 ; 4 W. E. 441 ; 2 Jur. N. S. 430. {t) (1842), 2 Y. it C. (Ch.) 48 ; 12 L. J. Chi. 65; 6 Jur. 1051. (u) Per Lord Ilathcrley, L.C., in JIardivy v. Metr(qii>litan Railway Company (1872), L. E. 7 Ch. Apj). 154 ; 41 L. J. Ch. 371 ; 26 L. T. 109; 20 W. E. 321. {x) (1850), 19 L. J. Q. B. 502 ; 5 H. & T\v. 327. The Lands Clauses Consolidation Act, 1845. 23 them to the compiiuv, subject to the compau}' making such roads Sect. 6. as might be necessary to connect the portion of the owner's lands as would be severed by the railway line. Disputes subsequently arose as to the sufficiency of the communications made by the company. It was held that the contract was one whicli would be enforced in equit}', and that the jurisdiction of the Court was not ousted by the Lauds Clauses Consolidation Act, the provisions of which respecting the mode of ascertaining compensation did not apply to a case of a purchase by agreement, but only to a compulsory taking of lands by the company. Where the Legislature prescribes formalities to be observed by Compliance parties contracting iiitei' se, and one of them endeavours to avail ^^necific "^ ~ himself of the want of such forms to postpone or avoid the comple- performance. tion of the contract, the Court will itself ascertain whether the intentions of the Legislature have, iu substance, been complied wiili. If they have it will decree specific performance (ij). ARTICLE 7. — Where a landowner has a complete remedy in Where owner J , V J. ■ j_ ■ -nn •■•1 i liii-S remcdv in damages, or the agreement is imcertain, specific periormance wul not iiamages. ' be decreed. In Wcht>\. Direct Loudon and PortsnioiitJi llaUtraji Ci)iii]>ani/(z) Complete an agreement was entered into on behalf of and confirmed by a railway company, to purchase land not exceeding eight acres for ;G4,500, and to pay consequential damages to the landowner's property. It was held that the owner had means of complete redress at law% and his claim for specific performance was dismissed. In Tdlctt V, Chart II fi Cross Bridije Conijxini/ (a), specific perform- Agreement ance was refused because the agreement was vague. '° Where an owner died after notice to treat, having specifically Death of devised the property comprised in the notice to treat, specific notice to performance will not lie, as a mere notice to treat does not constitute treat. a contract with the owner {!>). In Morgan v. Mdinan (c) a decree of specific performance was Turchase refused on the ground that there was no contract the specific per- ascertained— formance of which the Court could enforce. The price to bo paid specific for the lands was not ascertained, because Morgan had never elected jefused. (as he was bound to do under the original agreement) whether the (y) lUtlerx. Mttiv^iolihdi lldilirai/ Company (18013), 31 Beav. 504; 32 L. J. Ch. 7 ; 7 L. T. 494 ; 11 \V. E. IS ; 9 Jur. N. S. 41. (z) (1852), 1 De G. M. & G. 521 ; 9 Hare, 129; 21 L. J. Ch. 337 ; IG Jur. 323. See also Inqram v. Midlund liuila-ay Cunipuny (1860), 3 L. T. 533. 00 (1859), 26 lieav. 419; 28 L. J. Ch. 863. {h) Huyues V. Hiuiiii>i (1861), 1 Dr. & Sm. 426 ; 30 L. J. Ch. 578; 4 L. T. 199 ; 9 W. K. 497 ; 7 Jur. X. 8. 595. ('•) (1853). 2 De G. M. & G. 24; 22 L. J. Ch. 897; 1 W. E. 143; 17 Jur. 193. 24 Code of the Law of Compensation. Sect. 6. Actiuu pending — specific performance refused. Lien of owner for unpaid purchase- money. Unpaid vendor — receiver pending sale. Interest on purchase- monej'. amount of compensation to be paid should be settled by arbitration or by a jury. In Bijfimve v. Metropolitan Board of Works (d) the Court of Appeal refused to make a decree for specific performance where an action was pending to determine the interest of the owner, notwith- standing that the Board of Works had paid the whole of the purchase-money into Court, and had entered into possession. ARTICLE 8. — Where the promoters have taken possession of land under sect. 85 or by agreement, the owner has a lien on the land for the purchase-money, and also for the money payable to him as com- pensation for damage by severance and injury to his adjoining land; and such lien will be enforced by sale, even although a railway has been made over the land. This was decided in Walker v. Ware, Hadliam, and Buntingford Puulicaij Company {e). In giving judgment, Romilly, M.R., said: "I think that the Act of Parliament does not deprive the plaintiff of his lien. It was not intended, that because power was given to railway companies to take possession of land upon paying into the bank the amount of the valuation of a surveyor, and giving the bond required by the Act, the landowner should lose his ordinary right of lien when the amount payable by the company has been subsequently ascertained, and is found to exceed the deposited sum." In Munns v. Isle of Wight Bailway Company (/) an order for a receiver was made and an order for an injunction was discharged. The owner was unpaid and had obtained a decree for specific performance. The company having become insolvent, an order had been made, on the petition of the vendor, for the sale of the land and payment of the deficiency, and for an injunc- tion restraining the company until payment from running any engine over, or otherwise using or continuing in possession of the land. The receiver was appointed pending the sale, and the company was ordered to give immediate possession. ARTICLE 9.— Where a complete contract is established between the promoters and a landowner, and the amount of compensation has been fixed, the ordinary rules as between vendor and purchaser d) (1S86), 32 Ch. D. 147 ; 55 L. J. Ch. 602 ; 54 L. T. 889 ; 50 J. P. 788. e) (18(J5), L. E. 1 Eq. 195 ; 35 L. J. Ch. 94; 35 Beav. 52; 13 L. T. 517 ; W, E. 158; followed in Wing v. Tottenham, dr., Jmidiou Jlailway ,,872), L. 11. 13 Eq. 261; 41 L. J. Ch. 474; 25 L. T. «70 ; ms/ivp of Wiix-hester v. Mid-IImds Eolhvay Compauy (1867), L. 1^ 5 Eq. 17 ; 37 L. J. Ch. 64 ; 17 L. T. 161; 1() W. E. 72; I'dl v. Northainptou and Biuibury Railiviiy (Joinpanij (1867), L. E. 2 Ch. App. 100; 36 L. J. Ch. 319; 15 L. T. 169 ; 15 W. E. 27. Tlte Lands Clausrs ConsoVuhitiou Ad, 1845. 25 apply, and interest is payable at the rate of 4 per cent, from the Sect. 6. date of completion of the purchase. If no date is fixed, interest is payable at the rate of 4 per cent, from the time when the promoters might prudently have taken possession. This is the effect of the decision in In re Piggott and the Great ]]\'sterii lladicaij Company (//). Jessel, M.R., after stating that an action for specific performance would lie at the instance either of the vendor or the promoters, said : " The course of decision then being that specific performance of the contract as a contract of purchase and sale, or sale and purchase, may be enforced, I take it that, unless you find some statutory enactment in the way, all the ordinary rules apply. Consequently, as stated in Dart's ' Vendors and Purchasers,' where the vendor has shown his title the purchaser pays interest from the time at which he might prudently have taken possession, supposing it to have been offered him, that is, the time when a good title was shown ; that is the ordinary rule." " Interest can only be demanded by virtue of a contract, express or implied, or by virtue of the principal money having been wrong- fully withheld, and not paid on the day when it ought to have been paid " (//). ARTICLE 10. — Interest on the purchase-money ceases from the No interest date of payment into Court. hiloXuT''* In Lewis V. South Wales Ilaihcarj Company {i), it was agreed that interest was to commence and be computed from the day on which the abstract of title was delivered to the solicitors of the company, up to and inclusive of the day on which the purchase should be completed. It was held that interest ceased to run from the time of payment of the purchase-money into the Bank of England. In giving judgment Turner, V.-C, said: "The important words to be considered in the operative part of this agreement are the words ' until the completion of the purchase,' in that part of the agreement which relates to the deposit with Messrs. Glyn & Co., ' up to and inclusive of the day on which the purchase should be completed,' in the clause relating to the payment of interest. The question is, what is the meaning of the words {[j) (ISSl), 18 Ch. D. 146; 50 L. J. Ch. 679 ; 44 L. T. 792 ; 29 W. E. 727. In re Erdeshill Load Board (1880), 13 Ch. D. 365; 49 L. J. Ch. 214; 28 W. R. b'M, was disapproved of. Followed in Spencer- Bdl and the Loudon and Sonth-Western Itailway Company (1883), 33 W. E.. 771. (A) Per Lord Westburv in Caledonian Bud way Company v. Camikhael (1870), L. E. 2 H. L. (Sc.) 56. (0 (1853), 10 Hare, 113; 22 L. J. Ch. 209; 1 W. E. 45; 16 Jnr. 1149. See also Ex parte Earl of Hardwicke (1848), 1 De G. M. & G. 297; 17 L. J. Ch. 422; and Be Divers (1855), 1 Jm-. N. S. 995. 26 Code of tlic Law of Compensation. Sect. 6. Possession before \nicc fixed — interest. ' until the completion of the purchase ' ? Those words may no doubt import, and generally perhaps would he construed to refer to, the complete conveyance of the estate and final settlement of the business. But I do not think that is the only or necessary meaning of the words. Tbey may mean until the completion of the purchase by the purchaser on whose part the purchase is completed on the payment of purchase-money by them ; and the question is whether this is not the true meaning of the words as contained in this agree- ment. Now, the words of every agreement must, as I apprehend, receive a reasonable construction with reference to the subject- matter of the contract, and here the subject-matter of the contract is the possession of the lands and the payment of interest on the purchase-money. What, then, is the reasonable construction of the words with reference to this subject-matter? Is it reasonable to construe them as importing that interest is to be paid on the purchase-money until the final completion of the purchase, although the purchase-money itself may be paid long before ? I think it would be unreasonable to put such a construction on the words, the more so when it is considered that interest is the compensation for the delay in the payment of the principal. . . . My opinion, there- fore, upon the construction of this agreement is, that the words ' the completion of the purchase,' as used in the agreement, must be construed to mean the completion on the part of the purchasers by the payment of the purchase-money. The other construction would, as was well observed on the part of the defendants, lead to the conclusion that interest was payable on the whole purchase- money, although nearly the whole might long ago have been paid." In Ex j)ai't(' Wliite, In re Great Wcster)i Iiaihcai/ Co))q)aiiij (/.), it was held that where the Great Western Kail way Company hud paid the purchase-money into the Bank of England, the vendors (the trustees) could not apply under the Act, by petition, to charge them with interest during the time the money had remained idle. ARTICLE 11. — Where the promoters take possession before the price is fixed interest at 4 per cent, is payable upon the purchase- money from the time of their taking possession of the land until the compensation money has been paid. This point was raised in lUitjs v. Dare Valley llailicay Coni- jjany {I). In giving judgment Bacon, V.-C, said : " From the (/.•) (1840), 9 L. J. Ex. (in Equity), 9. (/) (1 .S74j, L. 11. 19 Eq. 9;}; I2;i AV. E. 2;} ; followed in lialUml v. Hhait (1880), 15 Ch. D. 122; 49 L. J. Ch. 613; 43 L. T. 173; 29 W. E. 73. See also Blount v. Great Southern and JIVs/cr/t liailioaij Compain/ (1851), 2 Ir. Ch. 11. 40; III re S/iaiv and the Corporation of Birniinghain (1884), 27 Ch. D. 614 ; 54 L. J. Ch. 51 ; 51 L. T. 684; 33 W. E. 74; Fletcher v. Lancashire and The Lands Chiusfs Consolidation Act, 1845. 27 time when the railway company exercised their statutory rights Sect. 6, and took possession of the land which belonged to the plaintiffs, they became the owners of the land, and from that day the plaintiffs became the owners of the price payable for the land. If I were to withhold payment of interest I should not only be going against the cases which have been cited, but I should be going against common sense, justice, and honesty." In that case Bacon, V.-C, followed the decision of the House of Lords in BircJt V. Joi/ (in), where the principles governing the payment of interest on purchase-money were laid down. If the owner of land, compelled to sell, delays the completion of Completion the purchase, interest will not be payable after notice by the vendor, purchasers that their purchase-money is lying idle (^O- But if the completion is delayed by the purchaser he must pay Delay by interest, although he is not in possession (o). Where an award was made by an arbitrator and the Lands Award outsi.le ^1 . , TT 1 • n IT 1 ,1 i. Lands Clauses Clauses Act did not apply, it was held that the owner must pay ^^ts. the outgoings from the land until the date of the aw^ard, and was not entitled to interest on the purchase-money up to that date (_;:>). ARTICLE 12. — Where the agreement contains a stipulation that Delay by the promoters shall pay a higher rate of interest if the purchase is i,j„iier rate of not completed by a certain date, it is valid unless it is in the nature interest. of a penalty. This was decided by Lord Eoinilly, M.R., in llerhert v. Sali.shiii-i/ and Ycovd Uaibcaii Company (q), in which case it was held that the stipulation for a higher rate of interest was not in the nature of a penalty to secure punctual payment of the purchase-money, against which the purchaser was entitled to be relieved, but a separate and distinct contract which he was bound to perform. "I apprehend," said Lord Romilly, " it is quite clear that if a vendor and a purchaser enter into a contract by which the pur- chaser agrees to pay 10 per cent, interest from the time that he takes possession until the contract is completed, in the absence of Yorkshire Buihra,/ Cmjiatn/ [1902]. 1 Ch. 901; 71 L. J. Ch. 590; 50 W. E. 423; (36 J. P. 631. {in) (1851), 3 H. L. C. 565. See also F/eirln-r v. Lanaishirr ii--iii- vendor — con- the company had power to take lor the purposes ot then- undertakmg, veyance of and afterwards died, having devised his real estate to an infant, the ^^^^^ sold. Court made an order that the infant be a trustee within the meaning of the Trustee Act, and that on payment by the company of the purchase-money the devisee or some proper person should execute a conveyance to the company (p). ARTICLE 11.— The expression " executors and administrators " in "Executors this section is to be restricted to executors and administrators who trators "— are seised of or entitled to land or an estate therein. restriction of meaning. So held in In re Barroic-in-Furness Corporation and Raidinson''s Contract (pp). ARTICLE 12. — Where land has been taken from a lessee under the Lessee- compulsory powers contained in an Act of Parliament, the lessee is not bj.ga(.f^ li liable for subsequent breaches of covenant. covenant. This was decided by the Court (Cockburn, C.J., Lush, Hauneu, and Hayes, JJ.) in Baib/ v. De Crespigni/ {q), on the principle expressed in the maxim, lex non cogit ad impossibdia. There is, however, nothing to prevent a lessor from recovering substantial damages in respect of breaches committed after the notice to treat, but before the assignment by the lessees to the company, and the proper measure of damages is the amount by ^^^^^^J^^^^ which the reversion has become deteriorated at the date when the company takes possession (;■) . ARTICLE 13. — Promoters who have paid the purchase-money for Compulsory leaseholds and have been admitted into possession by the lessee, wiU, at assignment, the suit of the lessee, be compelled to accept an assignment containing the usual covenants. So held by Lord Hatherley, L.C., in Harding v. Metropolitan Fuiilicay Company (-s). The usual covenants are those inserted in the assignment for the purpose of indemnifying the vendor against the rent and covenants contained iu the lease. {()) G^rosvenor v. Eampstead Junction Railivay Company (1857), 1 De G. & J. 446 ; 26 L. J. Ch. 731 ; 3 Jur. N. S. 1085. {p) In re Lowrifs Will (1872^, L. E. 15 Eq. 78; 42 L. J. Ch. 509; 21 W. E. 42S. {pp) [1903], 1 Ch. 339. {i re ]]\(de (»)• ARTICLE 16. — A person of unsound mind not so found by inquisi- tion cannot sell land under this section. So held in In re Tioiicell (x), in which case it was decided that this section only authorises the committee of a lunatic to sell. Where lands which were subject to a rent-charge in favour of a lunatic during his life were taken by a corporation under the Lands Clauses Act, the Court authorised the committee of the lunatic to release the lands from the rent-cbarge upon the corporation pur- chasing in the name of the lunatic a Government annuity of the same yearly amount for bis life (//). Sect. 8. Parties under disability to exercise other powers. 8. The power herein-after given to enfranchise copyhold lands, as well as every other power required to be exercised by the lord of any manor pursuant to the provisions of this or the Special Act, or any Act incorporated therewith, and the power to release lands from any rent, charge, or incumbrance, and to agree for the apportionment of any such rent, charge, or incumbrance, shall extend to and may lawfully be exercised by every party herein-before enabled to sell and convey or release lands to the promoters of the undertakinsf. Sect. 9. 9. The purchase-money or compensation to be paid for AmounTof '^^^Y ^'"-"^^^^^^ ^o be purchased or taken from any party under compensation any disability or incapacity, and not having power to sell in case of parties under — — — — — (0 (1807), L. E. 4 Eq. 112; 36 L. J. Ch. 841; 1(5 L.T. 446; 15 W.R. 861. See also Wiiil]iitm v. Murlinre (1807), 8 East, 314 (ii); and Lv/d Water Company v. I)ii 55 L. J. Ch. 91 ; 53 L. T. 714 ; 34 W. E. 119 Company v. Donnington Hospital (1866), L. E. 14 W. E. 359; 12 Jur. N. S. 347. {d) (1863), 31 Beav. 504; 32 L. J. Ch. 7; Jur. N. S. 41. ((') Cotter V. TheMetropoJiUo) Railivai/ Contpan 1021 ; 10 Jur. N. S. 1014 ; Wi/romhe Railimuj ( (1866), L. E. 1 Ch. App. 268; 14 L. T. 179; 347. (/) (1864), 10 L. T. 131 ; 12 W. E. 243. ; 45 L. T. 234 ; 29 W. E. 875 ; nd ScJiooI Board for London . T. 813 ; 30 W. E. 610. nraven (1885), 31 Ch. D. 219; ; followinfr ]Vi/comhe Raihray 1 Ch. App. 268; 14 L.T. 179; 7 L. T. 494; 11 W. E. 18 ; 9 //(1864), 10L.T.777; 12W.E. 'oiapany y. Donninqton Hospital 14 W. E. 359; 12 Jur. N. S. The Lands Clauses Consolidation Act, 1845. 37 appointed by the petitioner, to satisfy the Court of the sufficiency Sect. 9. of the price. In following this course the learned Vice-Chancellor was not carrying out the provisions of the Act of Parliament, and it is most unlikely that this case will ever be followed. 10. It shall be lawful for any person seised in fee of, or sect. lo. entitled to dispose of absolutely for his own benefit, any ^^.j^^^"^ lands authorized to be purchased for the purposes of the vendor abso- Special Act to sell and convey such lands or any part entftLd, thereof unto the promoters of the undertaking in considera- lanc^s may be tion of an annual rent-charge payable by the promoters of rents?^ the undertaking, [Ind, except as aforesaid, the consideration to he paid for the purchase of any such lands, or for anij damage done thereto, shall he in a gross sum.~] The words in italics are repealed by the Lands Clauses Act, 1860 (23 & 24 Vict. c. 106) ss. 1 — 3 {(j), so that persons under disability can now sell and recover as provided in this and the following section. In 7/1 re Manchester and Milford Railway Company (It) the Rent-charges ^ 1 *^ivGii question arose as to the validity of two classes of rent-charges. |enerally The first arose as follows : The contractor agreed with the land- mvahd. owner for the purchase of the land, and paid the purchase-money to the vendor who conveyed to the company ; and the company then by a subsequent deed granted a rent-charge to the contractor calculated on the amount so paid. This rent-charge was held good. The second class of rent-charge comprised those granted generally in respect of sums of money paid by the contractor for the purposes of the company. These latter were held to be invalid on the ground that it did not appear that the money was paid by the contractor to any person who was selling to the company as owner in fee, or whether such money was purchase- money or other compensation, or for surveyor's fees, or the like. 11. The yearly rents reserved by any such conveyance sect. ii. shall be charged on the tolls or rates, if any, payable under payn^of the Special Act, and shall be otherwise secured in such rents to be manner as shall be agreed between the parties, and shall be toUsf^ paid by the promoters of the undertaking as such rents become payable ; and if at any time any such rents be not paid within thirty days after they so become payable, and after demand thereof in writing, the person to whom any (g) Post. {h) 15 L. J. Notes of Cases, 47. 38 Code of the Lmv of Compensation. Sect. 11. such rent shall be payable may either recover the same from the promoters of the undertakiDg, with costs of suit, by action of debt in any of the Superior Courts, or it shall be lawful for him to levy the same by distress of the goods and chattels of the promoters of the undertaking. Sale in con- AETICLE 1.— Where lands are sold to promoters in consideration rentchnrie- of a rent-char^e, the parties may agree to its being secured by a power of ° power of re-entry ; and if the rent-charge fall into arrear the vendor re-entry. ^^^ ^^^^^^ ^^.^ satisfaction, even though a receiver has been appointed by the Court. So held in Forster v. Manchester and Milford Railway Com- 2Kiny{i), the ground of the decision being that the company purchased the lauds not otherwise than in conformity with the Act of Parliament, for the section provides that the rents, besides being charged on the tolls and rates, shall he otherwise secured in such manner as shall be agreed between the parties. Unpaid ARTICLE 2. — The vendor who has sold in consideration of a rent- Jien— priority charge is not entitled to a lien in respect of unpaid arrears of the over deben- rent-charge, but is entitled to have his rent-charge paid out of the net ture-holders. g^rnings of the undertaking in priority to debenture-holders. This is the combined effect of two decisions given in the same year {k). James, V.-C, refused a lieu ou the ground that it appeared to be contrary to the intention of the parties to suppose the vendor was reserving to himself a right at some future time to enter and destroy the public work if the annual rent should fall into arrear. Rent reserved ARTICLE 3.— Where rent is reserved as distinguished from the —rent- payment of a sum in gross, that rent becomes ipso facto, by sect. 11, charged upon the tolls or rates payable under the special Act, and that rent may be called a "rent-charge." This was the decision of Lord Herschell, L.C, and the Court of Appeal in In re Lord Gerard and Beecham's Contract {I). In the course of his judgment Lord Herschell said : " Whenever land is sold reserving a rent, it appears to me that, since the Act of 4 Geo. II. c. 28, that rent may properly be called a 'rent-charge,' for under sect. 5 of that Act there has become incident to it the right of distress." (0 (1880), -19 L. J. Ch. 454. (/•;) Karl of Jirsnj v. Briton Ferry Floativcj Dock Company (18G9), L. E. 7 Eq. 409; Kyton v. Jf()ibi(/}i, llutliirt, &c., Ikiihvay t'ompany (1869), L. K. 7 Eq. 439 ; 20 L. T. 388 ; 17 W. E. 546. (/) [1894], 3 Ch. 295; 63 L. J. Ch. 695 ; 7 E. 519; 71 L. T. 272. Tlie Lands Clauses Consolidation Act, 1845. 89 ARTICLE 4. — Where land has been sold in consideration of a rent- sect. ii. charge, and the deed gives the owner of the rent-charge the power to "y distrain, the Court will allow the owner to distrain notwithstanding _ri;ent— sufficiently signified by a letter signed by the secretary ; and such ^"^^ given. consent only authorises the alienation or charge of the corporate property as specified in the memorandum upon which it is founded. This was decided in Arnold v. Mayor of Gravesend (s). And with respect to the purchase and taking of lands sect. 16. otherwise than by aoreement, be it enacted as follows : ^ ', r J o ' Fitrcliase of 16. AVhere tlie undertaking^ is intended to be carried into ^"!<(^-if''er- ~. „ p , 1 •! 1 1 1 ivisetlian by eiiect by means oi a capital to be subscribed by the agreement. promoters of the undertaking, the whole of the capital or capitaiTo be estimated sum for defraying the expenses of the under- subscribed taking shall be subscribed under contract binding the puSory^^"^" parties thereto, their heirs, executors, and administrators, powers of for the payment of the several sums by them respectively j'n forc^ ^^ subscribed, before it shall be lawful to put in force any of the powers of this or the Special Act, or any Act in- corporated therewith, in relation to the compulsory taking of land for the purposes of the undertaking. ARTICLE 1. — A company has power to purchase land by agree- Purchase by ment before the whole capital has been subscribed. '' So held in Guest v. Poole and Bournemouth lladu-ay Com- Notice to fany (t), in which case the company gave a notice to treat ; but it necessarily was held that the notice to treat was not necessarily an exercise of exercise of 1 1 • compulsory the powers of the Act " m relation to the compulsory taking of powers. land." "NYilles, J., said: "It is contended on the part of the defendants that as the whole of the intended capital had not been subscribed, the giving of the notice was a vain and inoperative act, which could not be the foundation of any right in the laud- owner to have the value of the land assessed thereunder. Xo doubt the giving of the notice Avas an inoperative act so far as the company was concerned, if it was intended to be followed up by a compulsory proceeding under the subsequent clauses before the entire amount of capital had been subscribed. But to hold that it was inoperative as against the landowner would be to put him in a very inconvenient position. The knowledge being with the company and not with the landowner, it would put it in their power, as is said by Lord Denman in Beg. v. Commissioners of {s) (1856), 25 L. J. Ch. 776 ; 2 K. & J. 574. (0 (1870), L. E. 5 C. P. 553 ; 39 L. J. C. P. 329; 22 L. T. 589; 18 W. E. 830. See also In re Uxbridge and Bickmansivorth Pialhruy ComiMHij (1890), 43 Ch. D. 536 ; 59 L. J. Ch. 409; 62 L. T. 347 ; 38 W. E. 644. 42 Code of the Law of Compensation. Sect. 16. TT ooJs and Forests, re Bn(hje{u), by giving a notice, to prevent the owner from doing what he pleased with his own land, accom- panied with this additional circumstance, that the company might abstain from having the subscription completed, and so keep the notice inoperative, except to impose an impediment with the owner's dealing with the land during the period limited by the Act for the taking of land, themselves retaining the option of proceeding or not at their pleasure. If such be the law the landowner must bear the inconvenience which it imposes upon him ; but we should be careful not to put a construction upon the Act which will lead to such consequences unless we are compelled to do so." Special Act ARTICLE 2. — Where promoters, after getting their Act, have compe?com- determined to abstain from executing the undertaking, they cannot panj' to cany be compelled specifically to perform an agreement for the purchase of takiU"— it ^^^^ which they had contracted to pui-chase for the pui'poses of the only enables undertaking, them. This was the decision of the House of Lords in Seottisli Nurtli- Eastern liailicay Company v. Stewart {.x), in which case Lord Wensleydale said : " It was at one time supposed in England, as it seems to have been thought in Scotland, that permissive powers given by an Act of Parliament to a company were obligatory upon them. The case of Philip v. Edinhurgli, Perth and Dundee Railway Company (//), in Scotland, and liey. v, York and North Midland Railway Company {z), in England, so decided. This latter case was reversed in 1853 in the Exchequer Chamber and the former in this House in 1837-" Before the judgment in Reg. v. York and Xorth Midland Railway Company (a) had been reversed on appeal, the case of Reg, v. Amhergate, dr., Railway Company (J)) was decided. There an attempt was made by mandamus to compel the company to com- plete its undertaking. The answer of the company was that they had not obtained the subscription of the capital according to the special Act. 'I'ho mandamus was refused, Lord Campbell, C.J., saying : " If a peremptory mandamus were to go, it would order that to be done which is illegal." Since the decisions of the House of Lords and the Exchequer Chamber above referred to, no case like Reg. v. Andjergate Railway Conipany can occur again. {ii) (1848), 17 L. J. Q. B. 34K (.r) (1SJ9), 3 Macq. II. L. (So.) 382. (y) (1857), 2 Macq. H. L. (So.) 514 ; 3 Jur. N. S. 249. (2) (1853), 1 E. & B. 178 and 858; 22 L. J. Q. 15. 225; 17 Jur. Ol'O. {(i) Supra. (A) (1853), 1 E. & B. 372; 22 L. J. Q. B. 191 ; 17 Jur. G(58. The Lauds Clauses Consolidatiou Act, 1845. 43 Entry under sect. 85 — ARTICLE 3. — Promoters cannot be restrained from entering upon sect. 16. lands under sect. 85 on the ground that the capital has not been subscribed as required by this section. This was the decision of the House of Lords in Great JVestern subscribed. Raibcai/ Company v. Sirindon, dr., liailuay Coiiiptnii/ (c). The House was divided iu opinion, Lord Fitzgerald and Lord Bramwell constituting the majority of the Court, and Lord AVatsou the minority. By their special Act the Swindon Company were autho- rised to make a railway, and to carry it across the Great Western Railway, at one point by a bridge over, and at another by an archway under that railway, and the archway was to remain the property of the Great "Western Railway Company. The Swindon Company gave the Great "Western Railway Company notice of their desire to enter upon the lands and to use them for the pur2)oses of their Act in accordance with sect. 85. The Great Western Railway Company sought to restrain the Swindon Company from entering or con- tinuing upon the lands mentioned in the notice to treat, on the ground that the capital of the Swindon Company had not been duly subscribed as required by this section. It was held that they could not be restrained on that ground, Lord Bramwell expressing the opinion that the powers conferred by sect. 85 are not conditional on the capital being paid up. ARTICLE 4. — Section 16 does not apply to the case of a branch Sect. 16 does or extension railway authorised to be made by an already existing "°andf or ^'^ company. extension lailway. So held in Reg. v. Great Western liailaay Contpaujf (d), and followed iu ]Veld v. SoiitJi-Western RaiUvay Co)npanj/ {e). In the former case Lord Campbell, C.J., said : "I am of opinion that this section does not apply to an undertaking such as the present. It is confined to cases where the undertaking is intended to be carried into effect by means of a capital to be subscribed by the promoters of the undertaking." ARTICLE 5. — An injimction will be granted restraining promoters Capital from making a limited portion only of their undertaking where there compete— ^^ is no intention of completing the whole. injunction. This was decided in Colien v. Wil]d)ison (/). The injunction was granted at the suit of an individual shareholder, and the Court (c) (1884), 9 A. C. 787; 53 L. J. Cli. 1075; 51 L. T. 798; 32 W. E. 957; 48 J. P. 821. {d) (1852), 1 E. & B. 253; 22 L. J. Q. B. 65. (e) (18(33), 32 Beav. 340 ; 33 L. J. Ch. 142 ; 9 Jui'. X. S. 510. (/) (1849), 1 McX. & G. 481 ; 12 Beav. 138; 18 J.. J. Ch. 378; 14 Jm-. 491. See also CoJman v. E(ist>-rn Counties Ilailituy Coinjiuni/ (1846), 10 Beav. 1 ; 16 L. J. Ch. 73 ; 11 Jm-. 74. 44 Code of the Law of Compensation. Sect. 16. Sect. 17. A certificate of two justices to be evidence that the capital has been sub- scribed. Certificate conclusive. held tliat the directors could not take upon themselves to determine that they would not complete the whole undertaking, but apply the money collected on the faith of the whole work being done, in completing only a part of it. The grounds upon which injunctions should be granted were discussed in Blakcmore v. Glamorganshire Canal Navigation (g). In Agar v. Begenfs Canal Comixiny (h) the company were restrained from acquiring lands on the ground that the Court was satisfied that the company were unable to carry out the under- taking. In Mat/or of Kijig's Lynn v. Pemherton (i) Lord Eldon refused an injunction, saying : " You have come very properly, but a peculiarity in this case is the pending application to Parliament." The company had insufficient funds for the completion of their undertaking, but an application to Parliament for further powers to levy money was pending. In Gray v. Liverpool and Bury Baihcay Company (k) the question was again raised whether, where it is evident that the line of a railway cannot be completed, the promoters have a right compulsorily to take any part of the property of the proposed line. Lord Langdale, M.R., said: "It would be a strong measure, indeed, to allow men's properties to be summarily taken on the notion of the general benefit, when the parties taking it have not done those things which are incumbent on them to secure their capacity and ability to complete the whole undertaking." 17. A certificate under the hands of two justices, certify- ing that the whole of the prescribed sum has been subscribed, shall be sufficient evidence thereof, and on the application of the promoters of the undertaking, and the production of such evidence as such justices tliink proper and sufficient, such justices shall grant such certificate accordingly. ARTICLE 1. — Except where the certificate has been obtained by- fraud, it is conclusive as regards the landowner that sect. 16 has been complied with. So held in Ystalyfera Iron Company v. Neath and Brecon Bailway Couipany (/). In giving judgment, Jessel, M.R., said: " My opinion is that, taking the two sections together, and always excepting any question of fraud, as to which I desire it to be iq) (1832), 1 My. & K. 154 ; 2 L. J. Ch. 95. (//) (1814), 1 Swanst. 250 (note). (0 (1818), 1 Swanst. 244. See also Sahm^n Cr. 439. (/.•) (1840), 9 Beav. 391 ; 4 Eail. Cas. 235 ; 10 Jur. 3G4. (/) (1873), L. E. 17 Eq. 142; 43 L. J. Ch. 470; 29 L. T. 662; 22 W. E. 149. Riinikdl (1838), 3 My. & The Lands Clauses Consolidation Act, 1845. 45 understood that I reserve my opinion, the certificate is intended Sect. 17. !)}• the Legislature to be conclusive on the landowner. It was not intended to allow every landowner on the line to decide the question as to whether sufficient capital had been subscribed. "What was meant was this, that the Legislature would appoint a competent tribunal to decide that question, and that the certificate of that tribunal should be final, always assuming that it was obtained without fraud." ARTICLE 2. — This section does not apply in case of an extension sect. 17 does of the undertaking authorised to be made by an ah'eady existing "n'^extension company. by existing company. So held in ]]\'Id v. Soutli-JVestern Bailwai/ Company (in). 18. When the promoters of the undertaking shall require Sect. 18. to purchase or take any of the lauds which by this or the ,^ . " . . . .NotlCG of Special Act, or any Act incorporated therewith, they are intention to authorized to purchase or take, they shall give notice ^^^^ ^^°^^^- thereof to all the parties interested in such lands, or to the parties enabled by this Act to sell and convey or release the same, or such of the said parties as shall, after diligent inquiry, be known to the promoters of the undertaking, and by such notice shall demand from such parties the particulars of their estate and interest in such lands, and of the claims made by them in respect thereof; and every such notice shall state the particulars of the lands so required, and that the promoters of the undertaking are willing to treat for the purchase thereof, and as to the compensation to be made to all parties for the damage that may be sustained by them by reason of the execution of the works. ARTICLE 1. — Notices given and plans and sections of an intended Notices given railway deposited in pursuance of the Standing Orders of the Houses of jgnosit^ed^nct Parliament previous to an application for an Act, are not to be necessarily regarded in construing that Act afterwards, unless they are so referred iu*^^^ct.°^'^ ^' to as to be incorporated therewith. This was decided in XortJi British Piailway Company \. Tod (n), and followed in Beg. v. Caledonian Bailtcay Company (o), in which case it was held that the exhibition of plans and sections before application for an Act, imposes no obligation on the company except in so far as the plans, &c., are incorporated in the Act. (m) (1863), 32 Beav. 340; 33 L. J. Ch. 142; 9 Jur. X. S. 510; ante, p. 43. («) (1846), 12 CI. & F. 722; 4 Eail. Cas. 449; 10 Jui\ 975. (o) (1850), 16 Q. B. 19 ; 20 L. J. Q. B. 147; 15 Jur. 396. 46 Code of the Latv of Compensation. Sect. 18. Public interests affected — injunction at instance of Attorney- General. Delineations on ])lans with- out special powers. Lessee omitted from book of Lord Campbell, C.J., said : " The exhibition of plans and sections before the Act is passed is analogous to parol negotiations and proposals preliminary to the making of a private agreement, which is afterwards reduced into writing. Such proposals do not bind the parties, except in .so far as they are in writing." In 1)1 re Corporation of Hiiddersfield and Jacomh {p) Mellish, L.J., said : " It is now settled law that what was contained in the notice to the landowner as to the width which the conduit was to be, cannot affect the corporation, even if it got into the deposited plans, unless it was contained in the Act of Parliament." Where the plans deposited by a railway company showed that they proposed to stop up certain streets, and to cross another by means of an arch, and the special Act empowered them to stop up all streets in a defined area, including the street they propose to cross, the Court held that they had power to stop up the latter (q). In Attorneij-Gencral v. Great Northern Railicay Compann (?•), upon one of the sections of a railway, a plan of which had been deposited with the clerk of the peace and referred to in an Act authorising the formation of the line, there was a note to the effect that a particular road, therein delineated, was to be stopped up, and another, therein also delineated, was to be substituted for it. It was held that the public and the landowners were not thereby affected with notice, so as, upon the ground of acquiescence, to be precluded from obtaining an injunction, upwards of four years afterwards, on the company proceeding to stop up the road. Where public interests are affected the Attorney- General may apply for an injunction against the company, but an adjoining land- owner is not entitled to an injunction on the ground of the possibility of iujury to his lands (s). Delineations on a plan, but for which no special power is given in the Act, do not entitle the company to do the work represented by such delineations (/). In Kemj) v. West End of London and Crystal Palace Railway Company (u), an intermediate lessee, whose name had been omitted {]>) (1874), L. E. 10 Ch. App. 92; 44 L. J. Ch. 96; 31 L. T. 466; 23 W. 1{. 100. See also Brei/ntoii v. Londoii and North -Western Jiciilwai/ Comjxnnj (1846), 10 Beav. 238 ; 4 Eail. Cas. 553; 11 Jur. 28 ; and Beardmer v. London and Norih-Western Railway Com})(n,y (1849), 1 McN. & G. 112; 18 L. J. Ch. 432 ; 1 U. & Tw. 161 ; 13 Jur. 327. {q) Attoriieij-Genpral v. Great Eastern Iiailirai/ Company (1872), L. E. 7 Ch. App. 475"; 41 L. J. Ch. 505 ; 26 L. T. 749 ; 20 W. E. 5it9. (r) (1850), 4 Ue G. & S. 95; 15 Jur. 387. (.s) WarcY. Beijenfs Canal Vompany (1858). 3 De G. & J. 212; 28 L. J. Ch. 143. (0 Bei (//), in which case Lord Cranworth, L.C., said: " The principle is this, that when persons embarking in great undertakings, for the accomplishment of which those engaged in them have received authority from the Legislature to take com- pulsorily the lands of others, making to the latter proper com- pensation, the persons so authorised cannot be allowed to exercise the powers conferred on them for any collateral object ; that is, for any purposes except those for which the Legislature has invested them with extraordinary powers. The necessity for strictly enforc- ing this principle became apparent when it became an ordinary occurrence that associations should be formed of large numbers of persons possessing enormous pecuniary resources, and to whom are given powers of interfering for certain purposes with the rights of private property. In such a state of things it was very important that means should be devised whereby the Courts, consistently with the ordinary principles on which they act, should be able to keep such associations or companies strictly within their powers, and should prevent them, when the Legislature has given them power to interfere with private property for one purpose, from using that power for another." ^Yhere a company claimed a right to take land, they were re- strained from taking it because they required it, not for the purpose (e) Supra. (/) (1865), 2 Dr. & Sm. 330 ; 31 L. J. Cli. 540 ; 12 L. T. 10; 13 W. E. 518. ({■(■., liailirai/ CojD/iaiii/ (18G5), 12 L. T. 821; 13 W. 11. 1015. (A-) CariiK/toii v. ]\'i/<(>inbi' liaihtutii ('omjiaiu/ (1868), L. E. 3 Ch. A2:)p. 377; 37 L. J. Ch'. 213 ; 18 L. T. 96; 16 W. II. 494.' (/) (1865). 34 L. J. Ch. 276. (//)) (1859), 1 Giff. 158 ; 5 Jur. N. S. 782. See also Wilkinson v. Hull, cfec, liaihran and Dock Company (1882), 20 Ch. D. 323; 51 L. J. Ch. 788; 46 L. T. 455; 30 W. R. 617 ; and Bany (1868), L. R. 3 Ch. App. 745; 38 L. J. Ch. 162; 19 L. T. 189; 16 W. R. 1155. Tlie Lands Clauses Consolidation Art, 1845. 51 the expense, and to the injury, of persons whose property would not he required at all by the company, except in the endeavour to do something not contemplated by Parliament, and which is only made of importance to the company by circumstances which have nothing to do with the construction of the railway." In Simpsoi v. South Staffordshire Wati'vivorks ConqMOiij (n) the company were, by their special Act, authorised, so far as related to a particular field, to make "an aqueduct, constructed in a tunnel or otherwise, as shown in the original plans." Lord Westbury, L.C., held that ihe company were not authorised to take the field permanently in order to obtain an additional supply of water, and to erect thereon permanent pumping engines for raising water from beneath its surface. Lord Westbury, L.C., said: "I would also further remark with reference to a point that was much dwelt upon in the argument, namely, the eftect of the incorporation of the general Act into the special Act, that the general Act must be looked at with reference to the powers con- ferred upon companies of dealing with the land when acquired, but that it is to the special Act that you must especiall}' have regard for the purpose of ascertaining what I may call the contract between the landowner and the company, and the power which the company has conferred upon it of taking the land of the landowner." Sect. 18. ARTICLE 5. — A public company claiming statutory powers must Doubt as to prove clearly and distinctly that their Act gives them the powers P'^'^^'^^s \ , . %.„ 1 • 1 1 •, conferred by they claim. It there is any doubt as to the extent of the powers, that special Act doubt must be construed for the benefit of the landowner. So held in Simpson v. SontJi Staffordshire Waterworks Com- pany (u). In Mat/or of Liverpool \. Chorleij (j)) it was held that persons obtaining powers from the Legislature are bound strictly to adhere to the powers so conceded to them, to do no more than the Legis- lature has sanctioned, and to proceed only in the mode which the Legislature has indicated. The promoters shall, if required, comply with the letter of the enactment (q). In Graij v. Liverpool and Bury Radicay Company (r) it was (n) (1865), 4 De G. J. & S. 679 ; 34 L. J. Ch. 380 ; 12 L. T. 360 ; 13 W. E. 808; 11 Jur. N. S. 453. See also Welib \. Mdnrhester and Leeds Mail way Compami (1839), 4 My. & Cr. 116; 1 Eail. Cas. 576; Lee v. Milner (1837), 2 M. & W. 824 ; 2 Y. & C. (Ex.) 618 ; M. & H. 275 ; 6 L. J. Ex. 205. (o) Supra. {p) (1852), 2 De G. M. & G. 852. {(}) Herron v. Rathmines and EatJigar Lmprovement Commissioners [18921, A. C. 498 ; 67 L. T. 658. (r) (1846j, 9 Beav. 391 ; 4 EaU. Cas. 235. 4—2 must be con- strued in favour of landowner. 52 Code of the Law of Compensation. Sect. 18. Where Act capable of two interpre- tations. Landowners not to be allowed to make exorbitant claims. Company- must sliow lights claimed with sufficient clearness. Company not to be restrained by injui'ction because object could be obtained in some other way. Benefit not contemplated hold that in questions between companies and individuals whose property the former seek to take under compulsory clauses in their Acts, the Court will not strain the construction of the Act or Acts in favour of the former. In Mayor of Cardiff \. Cardiff Watencorks Comjxuu/ (s), where the company were authorized by their Act to supply water " to the whole of the town and port of Cardiff and parishes and places within and adjoining to such town," it was held that the word " port " was used in its popular sense, and did not extend to the district fixed by the Commissioners of the Treasury as the port of Cardiff for the pur- poses of the Customs duties; and the Court restrained the company from laying down pipes under the streets of Cardiff for the purpose of supplying with water any parish or place not being part of the port of Cardiff or any parish or ^^lace within or adjoining such town. Where the words of a railway company's Act are capable of two interpretations, but the general intent of the Legislature is complete indemnification to the party whose land is taken by the company, the Court will incline to that construction of the words which will make them consistent with the general intent (t). The Court, in exercising its jurisdiction to prevent companies, entrusted by the Legislature with large powers, from acting in a manner prejudicial to the rights of individuals on the one hand, will, on the other, be careful not to assist persons in availing themselves of any omission in such powers for the purpose of giving effect to exorbitant claims against the companies (»)• In Clowes v. Staffordshire Potteries Waterworks Compauy {x), Mellish, L.J., said that where a company by its special Act are enabled to take away the common law right of any person, they must show it with sufficient clearness. But where the company have given notice to take land for some object which is clearly within their compulsory powers, the Court will not interfere to restrain them merely on the ground that they might obtain the same object in some other way without taking the land. The Court will not, however, construe the compulsory powers of a railway company so as to extend them beyond the express words or absolutely necessary implication of the Act ; it being the duty of the company to take care that the public understand, before the Act is passed, the extent of the compulsory powers which they require (//). An injunction will not be granted where the company, acting (.s) (1859), 5 Jur. N. S. do,i. \t) Ex parte Eton (Jolkift (1S51), 20 L. J. Ch. I ; 15 Jur. 45. (m) Bell V. ////// audSilhj Bail/rcn/ Compauij (1839), 1 Eail. Cas. 616. (cc) (1872), L. E. 8 Ch. App. 125; 42 L. J. Ch. 107; 27 L. T. 521 ; 21 W. K. ;J2. (y) (1869), Litmh v. North Loudon Railway Company (1869), L. R. 4 Ch. App. 522 ; 21 L. T. 98 ; 17 W. E. 746. The Lands Clauses Consolidation Act, 1845. 53 under their statutory powers, obtain a benefit which was not Sect. 18. contemplated, cj/., beinw relieved from the obligation of erectinir • '■ • ^ . ' '^ ° o — injunction a wall which they would otherwise have had to erect (z). refused. ARTICLE 6. — In the construction of powers conferred by Act of rowers con- Parliament upon public bodies, acting for the public benefit only, the ^*^'''"^^^ ^>^J} intention of the Legislatui-e is to be construed more liberally than in the to be liberally case of powers conferred upon public companies for trading purposes, construed. In the course of his judgment in Xortli London Railtcai/ Com- panij V. Metropolitan Board of Works (a), where power was con- ferred on the defendants to carry their sewers into, through, or under certain land, Wood, \.-C., said: "In such a state of the argument it was a perfectly legitimate course on the part of the defendants to say, that the measure of the intention of the Legislature with regard to those Acts which deal with private companies is not to be applied at all to an Act of this description, which is an Act for an entirely diflerent purpose; not being for the purpose of conferring a benefit upon a certain company, upon the condition and consideration of that company providing public accommodation in return, but an Act solely intended for the public benefit and vesting certain powers in the Commissioners for the general benefit of the whole community." In Galloway v. Mai/or of Loudon (h) Lord Cranworth, L.C., Public body said: "It must be observed that the Legislature, in providing for take^more such an object as that of widening and improving the streets of the l-'^n^s than require*!, metropolis, has to deal with a subject totally diflerent from that of enabling a body of adventurers to form a railway. In that latter case, the persons seeking the aid of Parliament are bound to show that what they are proposing to do is of such public importance as to make it reasonable that they should be enabled so far to interfere with the rights of private property as to compel the owners of the land required for the railway to sell it to them at a fair price." The corporation of London were, in that case, allowed to take more land than was absolutely necessary for the desired improvements and an agreement made prior to the Act to sell lands not required for the improvement was held valid. In (Juinton v. Bristol Corporation (c), it was held that as the corporation required the property for the improvement of the town, from which no profit or compensation was obtained, they were not (2) Stevens v. MdropoJitan Didrlct Baitwaij Company (1885), 29 CTi. D. GO; 52 L. T. 8:32. [a) (1S59), 28 L. J. Ch. 909 ; 1 Jobn. 405 ; 5 Jur. X. S. 1121. (6) (1866), L. E. 1 H. L. 34; 35 L. J. Ch. 477 ; 14 L. T. 865 ; 13 W. E. 701. (c) (1874), L. E. 17 Eq. 524; 43 L. J. Ch. 783; 30 L. T. 112; 22 W. E. 434. 54 Code of the Law of Compensation. Sect. 18. Public body — agreement to exchange land — injunc- tion refused. Where land taken in excess, extremely small. Promoters cannot con- tract not to use their statutory {lowers. confined, like railway companies, to the narrow limits of the property actually required for the purpose specified, but were at liberty to purchase all the property included in the schedule. A similar question arose with regard to a public body in RoUs v. London School Board (d). The school board served the customary notice to treat on a landowner. Prior to the service of the notice the board had entertained and adopted, subject to the sanction of the Education Department, a proposal from a neighbouring land- owner for exchanging with him a portion of the land to be acquired under the notice. An injunction to restrain the board from putting into force their statutory powers with respect to so much of the land as it was proposed to exchange was refused on the ground that the board were justified in the course they had taken, and could, if they obtained the sanction of the Education Depart- ment, carry out the proposal. ARTICLE 7. — Where the quantity of land taken by the promoters in excess of their powers is extremely small, an injunction will not be granted restraining them. So held in Doirling v. Pontypool, dr., Railway Company (e). In this case the quantity was extremely small. ARTICLE 8. — A contract whereby the promoters undertake to bind themselves and theii' successors not to exercise theii' statutory powers is void. So held by the House of Lords in Ayr Harbour Trustees v. Osirald (/'), where Lord Blackburn said : *' I think that where the Legislature confers powers on any body to take lands compulsorily for a particular purpose, it is on the ground that the using of that land for that purpose will be for the public good. Whether that body be one which is seeking to make a profit for shareholders, or, as in the present case, a body of trustees acting solely for the public good, I think in either case the powers conferred on the body empowered to take the land compulsorily are entrusted to them and their successors to be used for the furtherance of that object which the Legislature has thought sufficiently for the public good to justify it in entrusting them with such powers; and, conse- quently, that a contract purporting to bind them and their successors not to use those powers is void." {d) (1884), 27 Ch. D. 639 ; 51 L. T. 567 ; 33 W. E. 129. \^) (1874), L. R. 18 Kq. 714 ; 43 L. J. Ch. 761. (/) (1883), S A. C. 623. See also Staffonls/u'rc, &r.., CunuJ Coin/xai,/ v. JJirmiiii/Ji). Where a waterworlcs company abstract water from a stream for I'iversion of '■ '' part of the purposes of their undertaking, a riparian owner cannot, under stream- sect. 6 of the Waterworks Clauses Act, 1847 (^i), require the com- compensation, pany to treat for the purchase of his easement in the stream ; it only entitles him to claim compensation under the 68th section for the injury sustained (r). But where the whole of a stream is taken the undertakers are Whole stream taken by bound to make compensation at once for the whole, and to take the xmdertakers. necessary steps to acquire the same by compulsion, unless an agreement has been arrived at (s). ARTICLE 12. — A notice to treat is good if given at any time When notice before the expiration of the compulsory powers conferred upon the ^^ gfven!"^^ promoters. This was the opinion of Lord Hatherley, L.C., in Kewp v. (o) (1875), L. R. 20 Eq. 353 ; 44 L. J. Ch. 549 ; 33 L. T. 156. ( p) TUicknesse v. Lancaster Canal Conqjan/j (1838), 4 M. & W. 472 ; 3 Jiu-. 11. iq) Post. (r) Bush v. Trowhriihje Wafencorls Company (1875), L. E. 19 Eq. 291 ; 10 Cli. App. 459 ; 44 L. J. Ch. 645 ; 33 L. T. 137 ; 23 W. E. 641. (s) Ferrand v. Bradford Corporation (1856), 21 Beav. 412 ; 25 L. J. Ch. 389; 2 Jur. X. S. 175.' See also Stone v. Yvoril Corporation (1876), 2 C. P. D. 99 ; 46 L. J. C. P. 1 37 ; 36 L. T. 279 ; 25 W. E. 240. 58 Code of the Law of Compensation. Sect. 18. If delay cannot be explained company South-Easiern Baihcay C(unpani) {t), where be said: "A notice to treat given by a company is perfectly good so long as tbe company are empowered to carry into effect tbeir works under tbe Act of Parliament, and no longer. It may be given the day before tbe compulsory powers to take tbe land expire, and tben it will last until tbe time for wbicb tbat land is wanted, namely, tbe time for making tbe works, bas also expired, but no longer." In Rielimond v. Xortli London Railway Coniimny {ii), where tbe question was raised whether, where a railway company is limited in time for taking land by compulsion, and is also limited in time for completing tbeir works, they should be held disabled from going on with any compulsory purchase when tbe time for completion bas come, Lord Cairns, L.C., declined to lay down any rule. In Tiverton and North Dero)i llailicay Company v. Loosemore (x) tbe special Act of a railway company enacted that "tbe powers of tbe company for tbe compulsory purchase of lands for the purposes of this Act shall not be exercised after the expiration of three years from tbe passing of this Act," and tbat " if tbe railways are not completed within five years from the passing of this Act, tben on tbe expiration of tbat period the powers by this Act granted to tbe company for making and completing the railways or otherwise in relation thereto shall cease to be exercised except as to so much thereof as is then completed." A few days before tbe expiration of tbe three years tbe company served on a landow^ner a notice to treat. No agreement was come to, and compensation was not assessed. Thirteen days before tbe expiration of the five years tbe company, having complied with the requirements of sect. 85, entered and proceeded to make tbe railway, the landowner objecting and resisting. Tbe land was bond fide required for tbe rail way, and tbe House of Lords held, that whether the railway could or could not have been completed within tbe thirteen days, tbe entry under sect. 85 was lawful ; tbat the company could not be restrained by injunction, but were entitled to remain and complete the railway after the expiration of the five years. Lord Cairns, L.C., in this case expressed an opinion which must be taken as modifying tbat expressed by Lord Hatherley, L.C., in Kenq) v. South-Eastern RaiUeay Company {y). He said : " There (0 (l.ST-i), L. R. 7 Ch. App. o64; 41 L. J. Cli. 404; 26 L. T. 110; 20 W. E. ;50(J. (,i) (iSfiS), L. 11. ;3 Ch. App. ()79 ; .'iT L. J. Ch. 880 ; 18 L. T. 8 ; 16 W. E. 44i). (x) (1884), 9 A. C. 480 ; 5:5 L. J. Ch. 812 ; oO L. T. 637 ; 32 W. E. 929 ; 48 J. P. 372. Sec also Sdlidmri/ v. Great Nortlieru Jiuilivay Comjiany (1852), 17 Q. B. 840 ; 21 L. J. Q. 13. 1N5 ; 1(5 Jiir. 740. iy) Supra. The Lauds Clnuscs Consolidation Act, 1845. 69 have been cases in which a railway company has given a notice to a Sect. 18. landowner to treat for the purchase of laud, and no further step has j^houkl not be then been taken either by the company or the landowner, and the allowed to go extended period for completing the works has expired ; and the compulsory question has been raised, could the company in that state of things purchase. proceed with its notice to treat and assess the compensation under the Lands Clauses Act? Were such a case now to arise I should be disjjosed to think, as I was disposed to think in UicJimnnd v. NortJi London Iladicay Couipanij (z), that if nothing more was done and the company have slept upon their rights, and certainly if the delay cannot be explained, they should be held to be disabled from going on with any compulsory purchase, and in such a case the landowner should, as I think, be held to be disabled also. Both parties have been content to let the time run out. There is no rei intcrventus, no change of the status quo ante, nothing which requires to be undone. The whole matter has been a project merely ; and, as a project, it has come to an end. . . . In my opinion, when there has been a notice to treat, and where, before the price has been ascertained, the company has, under the statute, regularly obtained possession of the land and proceeded to use it for making a railwa}', nothing more remaining to be done but the ascertainment of the price, the transaction is one that must go forward and not backward : the landowner has a contiuuinfj ricrht under the statute to have the price tixed and paid, ;ind that right he must pursue. To hold otherwise would, in many cases, work the greatest injustice not only to the company but even to the laud- owner himself, although in this particular case, for some reason not apparent, the respondent would prefer to get back his land." In Hedf/t's v. Metropolitan liailicaij Coinpajiij (a) the company gave a landowner notice to treat a few days before the expiration of their compulsory powers, but took no further steps in the matter for nearly eighteen months. They then served him with a notice that they should summon a jury to assess the value of the land. The plaintifi" obtained an injunction restraining them on the ground that they had led the landowner to believe that they had abandoned their intention of making a railway. In Ystalj'era Iron Company v. XcatJt and Brecon Uailu-aij Com- Time for pany (/>) it was held that a notice to treat is good until the ex™nded'by expiration of the time for completion, even where the time for "cw Act. completion has been extended by another Act of Parliament. (2) Supra. (a) (1861), 28 Beav. 109; 3 L. T. 643 ; 6 Jur. X. S. 12T<5. (6) (1873), L. K. 17 Eq. 142 ; 43 L. J. Cli. 476; 29 L. T. 662 ; 22 W. E. 149. See also Bf-ntlf-y v. liot/ierham and Kimberworth Loral BoarO (1876), 4 Ch. D. 588 ; 46 L. J. Ch. 284. 60 Code of the Law of Compensation. Sect. 18. After expira- tion of pre- scribed period landowner can compel completion. In Birminghain and Oxford Junction ItaiUcai/ Company v. lieg. (c) it was held, that where the notice to treat was given by the company within the prescribed period, and no further steps were taken until after the expiration of that period, the company might, on the application of the landowner, notwithstanding the lapse of time, be compelled by mandamus to issue theh- warrant to the sherifi' to summon a jury to assess the amount of compensation. Parke, B., said : " The notice to treat is an inchoate purchase, and after that has been given in due time it is competent for the land- owner to compel the completion of the purcbase. We think that the company in this case are bound to pay for the land, and that the landowner is bound to convey it to them." Prior agree- ment may be determined by notice to treat. Where neither party consider notice to treat regular. ARTICLE 13. — A prior agreement between promoters and land- owners may be put an end to by the promoters subsequently giving a notice to treat. In Bedford and Cambridge Railway Company v. Stanley (d) an agreement had been entered into between the promoters and the landowner before tbe Act was obtained. The bill was lost in the first session, but, upon an alteration of the course of the line, passed in the next session. The company served a notice to treat, and did not formally insist upon the agreement until the defendant had appointed an arbitrator. The company entered on the land under sect. 85. It was held that as this clause applied exclusively to compulsory purchase, tbe proceedings of the company assumed the non-existence of the agreement. But where neither party considered the notice to treat as a regular notice while an agreement was in existence. Lord Hatherley, L.C., held that the notice to treat being a blunder, the agreement was still binding. He said : " A notice to treat given by a company is perfectly good so long as the company are empowered to carry into effect their works under the Act of Parliament, and no longer. It may be given the day before the compulsory powers to take the hind expire, and then it will last until the time for which that land is wanted, namely, the time for making the works, has also expired, but no longer" (e). (r) (1851), 15 Q. B. 634; 20 L. J. Q. B. 301; overruling Br„cl-hhanh v. Whitelidreii Jiinrtitni lidiJtvay CompcDiy (1847), 15 Q. B. 647; 15 Sim. 632; 16 L. J. Ch. 471 ; 5 R. C. 373 ; 11 Jur. 663. (fi) (1862). 2 J. & H. 746; 32 L. J. Ch. 60; 7 L. T. 477 : II W. R. 139; 9 Jur. N. S. 152. (e) Kemp v. Hi mth- Eastern Hdihraif Compam/ (1872), L. R. 7 Ch. App. 364 ; 41 L. J. Ch. 404 ; 26 L. T. 110;' 20 W. E." 306. See also Tirertim and North Devon Buihiuii/ Compam/ v. Loosemore (1884), 9 A. C. 480 ; 53 L. J. Ch. 812 ; 50 L. T. 637 ; 32 W. R. 929 ; 48 J. P. 372. Tlw Lands Chtiisi'S Consolidation Act, 1845. 61 ARTICLE 14. — Where promoters have given a notice to treat they sect. 18. cannot, without the consent of the landowner, withdraw it and substitute a notice applying to a smaller quantity of land. cannot wkh- So iiekl in Tafoici/ v. Lipiii a)id EJij lUiduai/ Company (/), '^y'lH^out ^^^ where an injunction was granted restraining the company from consent of T . Jandowner. ])roceeUiug on a second notice. Having given a notice to treat, a company cannot enter upon less Company than all the lands comprised in their original notice, and deposit ^^pon'^smaller the value of, and give security for such smaller quantity {(j). .juantity tlian This principle does not apply to commissioners appointed under treat. a public Act to do on behalf of the executive Government certain This does not things for the benefit of the public. In Re(i. v. Commissioners of pubif^. com- Woods and Forests {h) Patteson, J., said: "The principle that niissioners. imposes liabilities on a private company, as arising in consideration of the statute granted to them, has no application in the case of such public commissioners." This exception does not apply to trustees or corporations (0- ARTICLE 15. — The service of a notice to treat is not equivalent to Notice to requii'ing possession to be given up under sect. 121. ^^^'^^ "^^^ So held by the Court (Cockburn, C.J., Blackburn and Lush, JJ.) .session under in Fief}. V. Stone {k). sect. 121. ARTICLE 16. — Where the Act requires special notice to be given, Act requiring the landowner's interest at the time of giving the notice, and not at special notice • -1 -1 o o — land- its expiration, must be considered. owner's interest. In Tyson v. Mayor of London (/), the London City Improve- ment Act gave special powers to the corporation enabling them to take and use lands required for the purpose of the Act upon giving six months' notice of their intention to do so. At the time of giving the notice in this case more than a year, but at the expira- tion of such notice, less than a year, of the tenancy remained. It was held that, for the purpose of determining whether the compensation to the tenant was to be assessed by a jury or by justices under the 121st section, the tenant's interest at the time of giving the notice, and not at its expiration, was to be considered, (/) (1847), 16 L. J. Ch. 282; 4 Eail. Cas. 615. See also Ikx v. Hutir- ford Market ComjKiny (1832), 4 B. & Ad. 327 ; 4 X. & M. 112. ((/) Barker v. North Staffnrilshire Raihvai/ Cumpuiiy (1848), 2 De G. & Sm. i)b ; 5 Rail. Cas. 401 ; 12 jur. 324. (A) (1850), 15 a. B. 761 ; 19 L. J. Q. B. 497; 15 Jur. 35. (»■) Steele v. Licerpool Corporutioa (1866), 7 B. & S. 261; 14 W. E. 311. See also Birch v. St. Marijtehone Vtstry (1869), 20 L. T. 697 ; 17 W. E 1014 (/v) (1866), L. E. 1 Q. B. 529 ; 35 L. J. M. C. 208 ; 14 L. T. 552 ; 14 W. E. 791. (0 (1871), L. E. 7 C. P. 18; 41 L. J. C. P. 6; 25 L. T. 640; 20 W. E. 112. 62 Code of the Lair of Compeii^dtion. Sect. 18. and that therefore he was entitled to have his compensation assessed hy a jury. In an Irish case (?»), where the owner was informed that a provisional order had been obtained enablin.^ the corporation to acquire his premises, and that the order was about to be confirmed by Act of Parliament, and he nevertheless went on doing repairs, the Court held he was entitled to all the money he had expended thereon. " All parties interested." Mortgagees without formal notice, Interest in premises after termination of tenancy, ARTICLE 17. — All parties interested include a mortgagee or person having an interest in the land or premises, even after the expiration of the tenancy, and every such person must be served vsrith a notice to treat. In Martin v. London, Chatham, and Dover Railicay Compan>j{n) the company proceeded with the inquiry into the amount of com- pensation as against the landowner, the mortgagees being aware, though without formal notice, of the in(iuiry, but taking no part in it. It was held that the mortgagees were not bound by the inquir}^ and were entitled, in default of payment, to an assignment by the company and the landowner of the land comprised in their security. When the company has purchased the interest of the first mortgagee under a power of sale, a subsequent mortgagee cannot recover arrears of an annuity from them (o). In liogers v. Hidl Dock Company {p), under an agreement for a tenancy from year to year, the tenants had a right to erect buildings in the demised premises, but were to have the privilege of removing the same at any time during their occupation ; or if they were required to give up possession before the expiration of twenty years, they were to be allowed one-twentieth part of the amount expended on such buildings for each remaining year of the unex- pired term of twenty years. Notice to quit was duly served on the tenants. The buildings were not removed, and after the expiration of the notice the company took forcible possession of the premises without having given the tenants notice to treat for their interest therein. Upon application by the tenants for an injunction to restrain tlic company from taking or keeping possession of the (■m) Hifji/fiis V. Mayor of Dublin [1891], 28 L. K. Ir. 484. (//) (1S()'()), L. li. 1 Ch. App. 501 ; 35 L. J. Ch. 795; 14 L. T. S14 ; 14 W. R. SSO ; 12 Jvir. N. S. 775. See also Banken v. J'Jdst ) Hill V. Great Xorthmi Ilailirai/ Cdmpaiiij (1854), 5 De G. M. & G. (56; 24 L. J. Ch. 212. (;;) {18(J4), 34 L. J. Ch. 1G5; 11 L. T. 403; 13 W. 11. 217 ; 10 Jur. N. S. 1245 Thr Laiuh Clauses Consolidation Act, 1845. 63 premises, it was held that the tenants had a sufficient interest in Sect. 18. the premises after the expiration of the notice to entitle them to relief. In Cooper v. Metropolitan Board of Worlds (q), it was held that Goodwill of althousfh in some cases the ofoodwill of trade premises passes to ^^'^^^^. o o 1 J. premises. a mortgagee, that does not apply to a case where the goodwill depends on the personal skill of the ow'uer. A tenant is entitled to a notice to treat, although the Statute of Equitable Frauds has not been complied with, where he has a right that can be enforced in equity (/•). Any tenant having an equitable title is entitled to a notice to treat (s). Where a person was in possession under a building agreement, Person in T 1 • 1 Ti T 1 T 1 • 1 -1 T • i-11 1 possession and his landlord asked him to stop building operations till the uncier a result of a railway sclieme was known, it was held that the com- ^-"^lil'^'Dg agreement — pany, having obtained their Act, could not enter upon the land expiration of without making a deposit, or giving a bond, to the extent of the interest of the plaintiff under the building agreement, and that the plaintiff had an equitable interest although the term mentioned in the agreement with his landlord had expired {t). A quarterly tenant who has received proper notice to quit from Quarterly the promoters (who had purchased the interest of the owner) is not entitled to entitled to a notice to treat under this section (»)• notice to treat. A right for directors to use a board-room for certain purposes at Use of office iit ccrttiin certain times, and for a clerk to use a desk in an office for certain times— no purposes, does not constitute a tenancy (x). tenancy. A landlord who has granted a lease with a power of resumption Landlord can- 1 . , p , . , ^ ^ not resume cannot exercise his power to resume alter notice to treat has been possession to given by the promoters, and so deprive the tenant of his right to defeat '^ ' . ^ ' ^ '^ tenant s right compensation (y) . to compensa- In Xetc lUce)- Compaiiy \. Midland llailn-aii Company {z), the ^^^^' railway company acquired land under which plaintiffs' water-pipes pipes— no (r/) (1S83), 25 Ch. D. 472 ; 53 L. J. Ch. 109 ; 50 L. T. 602; 32 W. E. 709. (/■) lit ?T Kiiufs Leasehold Estate (1873), L. E. 16 Eq. 521; 29 L. T. 288; 21 W. E. 881. (s) BireetinuiiY. Metrupolitmi Eaihray (Joiniiany (1864), 1 H. & M. 543; 10 L. T. 156; 11 W. E. 304. it) Birmiiiistrid Rui/uuiy Joint Committee (1883), 1 C. ife E. 184. {y) Johnson v. Edyware, tfcc, Railiuay Compani/ (1866), 14 L. T. 45 ; 14 W. E. 416 ; 35 L. J. Ch. 322 ; 35 Beav. 480 ; \So/a-ay Junction Raihray Company v. Jarhson (1874), 1 Ct. of Sess. Cas. (4th Series) 831 ; subsequently approved by the House of Lords, in Fleminy v. Newport Railway Company (1883), 8 A. C. 265. (z) (1877), 36 L. T. 539 ; 25 W. E. 502. interest in land. 64 Code of the Law of Compensation. Sect. 18. Landowner adjoining public street — no compensa- tion. Separate interests — separate notice. New tenant without notice of notice to treat served ioJidation Act, 1845. i)9 ARTICLE 25.— Where the compulsory powers under the special sect. 18. Act have expii-ed, and the undertaking is completed, and another Act — , ..iijT.-i.i.AU Exiiiration of has been obtained, the promoters cannot take land subject to tne compulsory compulsory powers of both Acts under a notice to treat given under powers— ^ •' ^ notice to treat the original Act. —new Act. This was decided by Lord Cairns, L.C., iu Ricltmond v. Xortlt London RaUicaij Compani/{c), where the railway had been completed and opened for traffic before the new Act was obtained. Lord Cairns said : " One of the best established objects of the jurisdiction of this Court is to take care that companies exercising powers under their Acts sball not exercise them otherwise than for the purposes of the Act, and when there is any ground for supposing that the powers are to be exercised for any other purpose, the Court should see whether the company is really misusing its powers." ARTICLE 26.— Where an invalid notice is served on a landowner invalid notice he cannot take advantage of the irregularity, if he has waived it. hmdo^raer/ So held in Hefi. v. Sntitli Holhind Lh-ainagr Committee {d). ARTICLE 27. — Where there is a defect in the notice, the promoters Promoters cannot, after compensation has been assessed, set up such defect in [^^dJfect^in'^^^ order to set aside the proceedings. notice. So held in Iu ^ '' 1 1 r, 1 TTr ' ri -7 /-I / \ ii bound to take In licg. V. London and South- \\ ester n Raiiu-ay Company (f/) the the whole. landowner applied for a mandamus to compel the company, who had given a notice to treat for part of his lands, to issue a warrant to the sheritf to summon a jury to assess compensation for the whole. Lord Denman, C.J., said: "The writ states that the prosecutors were willing and able to sell and convey the whole, and gave notice and required the company to take the whole. Now the 92nd section, though it protects the owners from being obHged to sell a part, does not contain any words making it obligatory on the company, who only want a part, to take the whole, as some (') (l,b68j, L. E. 3 Ch. App. 679; ol L. J. Ch. b8(i; 18 L. T. 8; 16 W. li. 449. (d) (1838J, 8 A. & E. 429; 1 P. & D. 79. See also Li/nch v. Commissioners of Reivers (1886), 32 Ch. D. 72 ; 56 L. J. Ch. 409 ; 54 L. T. 699 ; 50 J. P. 548. (<-) (1838), 8 A. . 14.S, 152; 41 J.. J. (i. B. 81 ; 25 L. T. 914 ; 20 W. E. 209. (/() (1852), 7 Ex. 5: 21 J.. J. Ex. 247 ; 10 Jur. 843. (0) (18015), ;J2 L. J. Ex. 107 ; 1 11. v!e C. 820; 11 W. E. 1032 ; 9 Jur. N. S. 1061. The Lands Chiuses Consolidation Ad, 1845. 77 subsequently contending that the claimant was not entitled to any Sect. 22. compensation. In the same case it was held that if the claimant claims and is awarded more than £50, a plea that he is not entitled to compensation in a sum exceeding i'oO is bad. Such a plea could only be good in a case where the amount claimed does not exceed ^650. ARTICLE 4. — If justices refuse to act either party may apply for a Justices— , , , , 1 III and a III )'s. mandamus to compel them, This was the procedure adopted in Reij. v. Stone (p) and in subsequent cases. It was held in Baxter v. London County Council (ej) that an action for a mandamus will not lie against justices, and therefore the party aggrieved must proceed by preroL^ative writ of niandanuis. AETICLE 5. — Justices have no power to decide questions of title. Justices may not decide So held in Ben. ^'- Edwards (/■), where Brett, M.R., said: "If questions of the claimant has a good title to the lauds in respect of which he has claimed compensation for the injurious affecting, how is such compensation to be determined "? It seems to me it is to be determined in case of dispute by two different tribunals. When such a claim is made, two questions, it is obvious, may arise : the first is as to the claimant's title ; the second is as to the amount of compensation to which he may be entitled. These are two different questions, and to my mind they are to be decided by different tribunals. It is obvious that there is no express authority given to the magistrates to decide the question of title. Then are we to imply such authority "? It is contrary to every idea of the English law that we should do so. In every other case, the moment a question of title arises, the jurisdiction of the magis- trates is ousted ; ye^ it is suggested that we should imply that under these Acts of Parliament they have jurisdiction to try questions of title, although such questions may be, even where the claim is under £50, very intricate. I consider no such implication ought to be made." 23. If the compensation claimed ur offered in any such sect. 23. case shall exceed JL'oO, and if the party claiming compensa- co^ "Nation tion desire to have the same settled by arbitration, and exceeding .£50 to be settled (Y'j (1866), L. E. 1 Q. B. 529; 35 L. J. M. C. 2U8 ; 14 L. T. 552; H W. E. 791. See also Be^j. v. Vaughan (1868\ L. E. i Q. B. 190 ; 38 L. J. M. C. 49 ; IT W. E. 115 ; lif'j. V. Kennedy [1893], 1 Q. B. 533 ; 62 L. J. M. C. 1G8; 6>> L. T. 454 ; 41 W. E. 380; 5 E. 270; 57 J. P. 346. {'i) (1890), 63 L. T. 767 ; 55 J. P. 391. (r) (1884), 13 Q. B. D. 586; 53 L. J. M. C. 149: 51 L. T. 586; 49 J. P. 117; oveiTuling Ik Edmioalsoi, (1852), 18 Q. B. 243: 21 L. J. M. C. 193; 16 Jur. 817. 78 Code of the Law of Compensation. Sect. 23. by arbitra- tion or jury, at the option of the party claiming compensa- tion. Where pro- moters have proceeded under sect, 85. Sect. 23 applies to cases under sect. (J8. After notice demanding arbitration piomoters may make .second offer. .signify such desire by notice in writing to the promoters of the undertaking, before they have issued their warrant to the sheriff to summon a jury in re.spect of such lands, under the provisions hereinafter contained, stating in such notice the nature of tlie interest in respect of which such party chxims compensation, and the amount of the compensation so claimed, the same shall be so settled accordingly ; but unless the party claiming comjDcnsation shall as aforesaid signify his desire to have the question of such compensation settled by arbitration, or if when the matter shall have been referred to arbitration the arbitrators or their umpire shall for three months have failed to make their or his award, or if no final award shall be made, the question of such compensation shall be settled by the verdict of a jury, as hereinafter provided. ARTICLE 1. — The landowner does not lose his right to have the compensation assessed under sect. 23 where he has made no claim and the promoters have proceeded under sect. 85, and the suiweyor has valued the land at less than £50. This was decided iu Pwg. v. Metropolitan llailway Comimny {s). ARTICLE 2. — Section 23 applies to a case of a reference to arbitration under sect. 68 of the amount of compensation in respect of land already taken or injuriously affected. So held in Evans v. Lancashire and Yorkshire Ilailicay Com- panii (t). Cromi3ton, J., said : " In either case if no award is made within three raonths you are driven to a jury." AVightman, J., said: "All the arbitrations contemplated by the Act fall under sect. 23. There is no other section providing for an arbitration in inrititm." ARTICLE 3. — Where the promoters have given the landowner notice of their intention to cause a jury to be summoned to settle the amount of compensation and make an offer at the same time, and the landowner subsequently gives notice to the promoters that he desires to have the compensation assessed by an arbitrator, the promoters are entitled to make a second offer. Tbis was decided in Fitzhardiiifie v. Gloucester Canal Company {}(). l^>lackburn, J., referring to this section, said : "I think, looking at the 23rd section, that it is clear enough that the Legislature contemplated that an ofier might be made after notice had been («) (1865), 13 L. T. 444. (t) (1853), 1 E. & 13. 754 ; 'I'l ].. J. (i. K 251 ; 17 Jur. S78. in) (1872), L. II. 7 U. 15. 770 ; 41 L. J. d \'>. ;il Canal Company (1891), 8 T. L. E. 79. The Lands Clauses Consolidation Act, 1845. 81 Company (g), when Lord Cotteuliam, L.C., in construing section 23, said: "I read it thus: that the arhitrators may have twenty- one days in the first instance; they may enlarge it for them- selves to the expiration of the three months; they have no longer time allowed for themselves to do that, but whenever it happens, either at the expiration of the twenty-one days or the expiration of the enlarged time that the duty of the umpire commences, then the umpire has three months to perform his duty.'' It is not necessary that an umpire should be appointed within twenty-one days after the appointment of the arbitrator last nominated (h). If the umpire is appointed after the date when the arbitrators should have made their award, he still has three months from the date of his appointment within which to make his award (i). ARTICLE 7.— An award is invalid if made after the expiration of three months, unless the time has been enlarged. So. held in Evans v. Lancashire and Yorkshire Railway Com- 2)any (k) . By sect. 9 of the Arbitration Act, 1889 (/), " the time for making an award may from time to time be enlarged by order of the Court or a judge, whether the time for making the award has expired or not." This applies to arbitrations under the Public Health Act, 1875, notwithstanding sect. 180, sub-sect. 9, of tbat Act (?»). In In re Dare Valley Company (n) the Court refused to enlarge the time because there had been great delay. The Court may enlarge the time after the aAvard has been made (o) It was held in Palmer v. The Metropolitan Railway Company {p), that where the parties consent to enlarge the time for making the ((/) (1848), 17 L. J. Ch. 161 ; 2 Ph. 475; 5 R. C. 166; 12 Jur. 46. See also In re Bradshaiu's Arbitration (1S48), 12 Q. B. 562; 17 L. J. Q. B. 362; 5 E. C. 527 ; 12 Jur. 998 ; In re PuUen and the Corporation of Liverpool (1882), 51 L. J. Q. B. 285 ; 46 L. T. 391 ; 46 J. P. 468. (A) In rr Bradshaw's Arbitration, supra ; Iloldsworth v. Wilson (1863), 4 B. 6 S. 1 ; 32 L. J. Q. B. 289 ; 8 L. T. 434 ; 11 W. K. 733 ; 10 Jur. N. S. 171. (r) In re PuJlen and the Corporation of Liverpool , supra. {k) (1853), 1 E. & B. 754; 22 L. J. Q. B. 254; 17 Jur. 878. (0 Appendix B., ptost. («!) Knowles and Sons v. Bolton Corporation [1900], 2 Q. B. 253 ; 69 L. J. Q. B. 481 ; 82 L. T. 229 ; 48 AV. P. 433. (//) (1869),L. R. 4Ch. App. 554; 38 L.J. Ch. 417; 20 L. T. 219; 17 W. E. 717. (o) Lord V. Lee (1868), L. E. 3 Q. B. 404 ; 9 B. & S. 269; 37 L. J. Q. B. 121 ; 16 W. E. 856 ; Deuton v. Strong (1874), L. E. 9 Q. B. 117 ; 43 L. J. Q. B. 41 ; 30 L. T. 52 ; 22 W. E. 316 ; ilfay v. Harcourt (1884), 13 Q. B. D. 688. {p>) (1862), 31 L. J. Q. B. 259; 10 W. E. 714. See also Caledonian Bail- tvay Company v. Lockhart (1860), 3 Macq. H. L. 808. L.C. 6 Sect. 23 Enl.irgement of time by arbitrators. Appointment of umpire after expira- tion of Lime for award by arbitrators. Award after three months invalid. Power of Court to enlarge time for making award. Parties may consent to 82 Code of the Law of Compensation. Sect. 23. award beyond the statutable term of three months, the Court will , ; not set the award aside on the ground that it is made beyond the enlai'ge tune _ , " for award. prescribed time. Consent need The parties need not consent in writing to an enlargement of wdt!n^<^'" the time for making the award. The conduct of a party may estop that party from alleging that there has been no written consent to the enlargement (q). Failure of ARTICLE 8. — If for any cause arbitration proceedings fail, the arbitration landowner is entitled to have his compensation assessed by a jury. proceedings — -^ .7 o ^ 3"'T- So held in Ex parte Senior (r). In that case the arbitration proceedings had gone off owing to the disagreement about the appointment of an umpire. The time allowed to the Board of Trade for making such appointment had passed, and the party claiming compensation had given notice to the promoters requiring them to issue their warrant for a jury to assess the amount of compensation. It was held that the claimaint was entitled to have his claim for compensation settled by a jury ; and that, after refusal a mandamus lay to compel the promoters to issue their warrant for that purpose. Sect. 24. 24. It shall be lawful for any justice, upon the applica- M th^f ^^^^^ ^^ either party with respect to any question of disputed proceeding for compensation by this or tlie Special Act, or any Act ^utesaslo incorporated therewith, authorised to be settled by two compensation justiccs, to summon the other party to appear before two by justices, j^gtices, at a time and place to be named in the summons, and upon the appearance of such parties, or, in the absence of any of them, upon proof of due service of the summons, it sliall be lawful for such justices to hear and determine such question, and for that purpose to examine such parties or any of them, and their witnesses, upon oath, and the costs of every such inquiry shall be in the discretion of such justices, and they shall settle the amount thereof. Jurisdiction ARTICLE 1.— Justices have jurisdiction to hear and determine the r* \k\^ n~f <1^6stion of compensation although the application be made more than time. six months after the land has been injuriously affected. This was decided in lieg. v. Edwards (s), on the ground that the (7) Tyermun v. Smith (1856), 25 L. J. Q. B. 359; 6 E. & B. 719; 2 Jur. N. S. SGG ; Be7inett v. Watson (1860), 29 L. J. Ex. 357 ; 8 W. E. 612 ; 6 Jur. N. S. 637. (r) (lcS49), 18 L. J. Q. B. 333 ; 7 D. & L. 36; 14 Jur. 1093. Seealso Lind V. Isle of Wight Ferry Compamj (1862), 1 N, R. 13; 7 L. T. 416. (s) (1884), 13 Q. B. D. 586 ; 53 L. J. M. C. 149; 51 L. T. 586 ; 49 J. P. 17 ; approving Riit Kent Sewerage Board (1882), 9 Q. B. D. 518 ; 51 L.J. Q. B. 456; 47 L. T. 192; 31 W. E. 119; 46 J. P. 519. (») Appendix B., pod. {x) [1895], 1 a. B. 459 ; 64 L. J. Q. B. 260 ; 72 L. T. 142 ; 43 W. E. 374 ; 14 E. 201. (i/) (1887), 12 A. C. 738; 57 L. J. Q. B. 295; 58 L. T. 158. See also Tabernarle Permanent Building Society v. KnigJd [1892], A. C. 298, 301 ; 62 L. J. Q. B. 50 ; 67 L. T. 483 ; 56 J. P. 709. (2) In re Barin> ' " " Declaration county in which the dispute arose. may be made before fi So held iu Darics v. Soutli Stafordsldre Putilway Conqninij {{/). justice of any county. 34. All the costs of any such arbitration, and incident sect. 34. thereto, to be settled by the arbitrators, shall be l;)orne by costs'oT' the promoters of the undertaking, unless the arljitrator arbitration shall award the same or a less sum than shall have been bome!^ offered by the promoters of the undertaking, in which case each party shall bear his own costs incident to the arbitra- tion, and the costs of the arbitrators shall he borne hj the parties in equal proportions. ARTICLE 1.— Section 34 applies to an offer made by the promoters Ofeer by of the undertaking under sect. 38. Such offer is not abrogated by a !^rb™ratTon~ notice given by the claimant under sect. 23 of his desire to have the costs. compensation settled by arbitration. This was decided iu Lascelles v. Sicansea School Board (li). It was contended unsuccessfully by the plaiutifi" that an ofier made by the promoters under sect. 38 was not an oifer within the meaning of sect. 34, because that sum was offered with reference to pro- ceedings to be taken before a jury, and that the offer had no operation with regard to proceedings to be taken by arbitration, inasmuch as they constituted fresh litigation. In the course of his judgment liidley, J., said: " Prima facie the offer made by the defendants remains in operation until it has been withdrawn ; and it could not be withdrawn by any act of the plaintiffs." ARTICLE 2. — The provisions in this section as to costs apply to Provisions of arbitrations under sect. 68, where lands have been taken or injuriously to arbitrations affected. under sect. 68. This is the effect of the decision in Richardson v. South-Eastcr)i Railway ComiKiny ii), where Jervis, C.J. , said : " I think . . . that the Court may hold that the words ' in manner herein provided ' in the 68th section, do incorporate the previous sections." Where a special Act provided for the assessment of compensation Where a claim by the verdict of a jury, and the parties entered into an agreement is referred to •' _ . . arbitration to submit the claim to arbitration, and the submission was silent as under an to costs, it was held that although the award was in favour of the ^°^^*^°^^^ • {g) (1851), 21 L. J. M. C. 52; 15 Jtir. 1133; 1 B. C. C. 599. (A) (1900), 69 L. J. Q. B. 24 ; 63 J. P. 742. (0 (1851), 20 L. J. C. P. 236; 21 L. J. C. P. 122; 11 C. B. 154; 15 Jur. 660. See also Catling y. Great Northern Eailwaii Co/nixin// (1S69), 21 L. T. 17;18W. E. 121. 96 Code of the Law of Compensation. Sect, 34. Time for making offer. What is the beginning of the arbitra- tion. Offer after appointment of arbitrators too late. claimant, the provisions of the Act did not apply and that costs could not be recovered (Ic). ARTICLE 3. — An offer by the promoters must be made at or before the commencement of the arbitration. This was decided in Fitzhardinfie v. Gloucester and Berkeley Canal Company (I), where the company made a second offer at the time of appointing their arbitrator, but before the claimant had appointed an arbitrator. Hanuen, J,, said: *'Now no time is specified at which that offer must be made, but I think it is clear that the words ' shall have been offered ' mean offered at or before the commencement of the arbitration, for ' all the costs of any such arbitration and incident thereto ' are to be borne by the promoters. It follows, therefore, that the promoters ought to make their offer at a time anterior to the incurring of any of the costs which the promoters may be liable to pay. If the offer is made at the very time that the arbitration commences, it follows that there cannot have been any costs incurred previous to the offer which would fall properly within the terms of the section. ... I do not think it necessary to say more than that it appears to me that the time when notice is given of the appointment of the arbitrator is the beginning of the litigation." Where the offer was made after the appointment of the arbitra- tors it was held to be too late (??()• In Yates v. Mayor of Blaekhurn (n) the claimant, at the end of the twenty-one days, appointed an arbitrator, and gave notice thereof to the promoters. The latter then made an offer, and the Court held that it was in time, because the claimant had not followed the provisions of sect. 25, viz., had not endeavoured to procure the appointment of a single arbitrator, and had not delivered the appointment to the arbitrator. Martin, B., said : " In the present case the plaintiff made no attempt to procure the appointment of a single arbitrator. On the contrary, he, on the expiration of the twenty-one days, at once appointed an arbitrator, in the sense of signing a paper nominating one ; but it does not appear that he delivered it to the arbitrator. He afterwards gave notice to the defendants of his having made the appointment, and called upon them to appoint one ; and after this the tender was made. The contention on the part of the plaintiff was, that the tender was too late, because he had then incurred costs incident to the arbitration ; {k) Ex parte lieynal (1847), 16 L. J. Q. B. 304 ; 5 E. C. 60. (0 (1872), L. E. 7 Q. B. 776 ; 41 L. ,T. Q. B. 316 ; 27 L. T. 196 ; 20 W. E. 800. (?n) Gmyy. North -Eastern Ralhray Compantj (1876), 1 Q. B. D. 696; 45 L. J. Q. B. 818 ; 34 L. T. 757 ; 24 W. E. 758. {n) (I860), 29 L. J. Ex. 447 ; 6 H. & N. 61. The Lands Clauses Consolidation Act, 1845. 97 offer by promoters Offer must be for comjicnsa- tion onlv. but without laying down a rule as to the time within which a Sect. 31 tender must be made, to relieve the party making it from costs, by virtue of the 34th section, we think that in the present case the tender was in time, inasmuch as the plaintiff did not pursue the proper steps pointed out in the 25tli section, and had not, when the tender was made, delivered his appointment to the arbitrator, up to which time everything previously done was revocable by him." The promoters may make amended offers provided they make Amended their final offer within the proper time(o). ARTICLE 4.— An offer by promoters must be simply a sum for compensation, and must not embrace costs or anything beyond it. In Balls V. Metropolitan Board of JVorhs (j)) an offer was made of £100 in full satisfaction for all injury sustained, and for all costs and charges incidental to the claim. The jury found the amount of the injury to be £75. It was held that the claimant was entitled to his costs on the ground that the offer was bad. Cockburu, C.J., said: "The offer is coupled with a condition that the claimant should accept the £100 in payment of costs, as well as for com- pensation. What the statute requires is that a reasonable compensation should be offered by the promoters of an under- taking for the damage they may have done, entailing certain consequences, in the event of the inquiry proceeding, if the claimant declines to accept the sum offered. The offer must, therefore, be simply of a sum for compensation, and cannot, I think, be made to embrace anything beyond it. The board were not justified in putting a condition on the claimant. The offer is, therefore, bad." ARTICLE 5. — The costs of the award and of stating a special case Costs of are costs incident to the arbitration. award and In In re Walker and Son, and Brown (q) it was held that the costs of the award were part of the costs of the reference, and in In re Hollidaij and the Corporation of Wakefield (r) it was decided that the costs of a special case stated by an arbitrator were costs incidental to the arbitration within the meaning of sect. 34, and (o) Huijvurd V. Metropolitan Rmhvay Company (1864), 33 L. J Q. B 73- 4 B. & S. 787 ; 9 L. T. 680 ; 12 W. E. 577 ; 10 Jur. X. S. 418 ; Fitzhardimie v. Gloucester and BerMeij Canal Company (1872), L. E. 7 Q B 776 • 41 L. J. Q. B. 316 ; 27 L. T. 196; 20 W. E. 800. {p) (1866), L. E. 1 Q. B. 337 ; 7 B. & S. 177 ; 35 L. J. Q. B. 101 ; 13 L T 702 ; 14 W. E. 370 ; 12 Jur. K S. 1S3. See also Yatts v. Manor of Bku-hhnr,. (1860), 29 L. J. Ex. 447 ; 6 H. & X. 61. (5) (1882), 9 Q. B. D. 434 ; 51 L. J. Q. B. 424 ; 30 W. E. 703. (r) (1888), 20 Q. B. D. 699 ; [1891], A. C. 81 ; 60 L. J. Q. B. 361 ; 64 L. T. 1; 40 W. E. 129; 55 J. P. 325. See also In re Knlyht and the Tabernacle Permanent BuUdiny Society [1892], 2 Q. B. 613: 62 L. J. Q. B. 33 : 67 L T 403; 41 W. E. 35. -^ l j -c , t ±j. ^. L.C. 7 special case. 98 Code of the Law of Compensation. Sect. 34. Death of umpire before award — ap- pointment of sole arbitrator ^-costs of former proceedings. No offer — costs. Costs may be settled subsequently to award. Arbitration under Arbi- tration Act, 1889— costs including arbitrator's fees to be taxed if not stated in award. Where award is in respect of different subject- matter to offer. were therefore costs over which the Court of Appeal had no jurisdiction. Where an umpire died without making any award and the parties by agreement (which contained no reference to the former proceedings), appointed a sole arbitrator, who made an award under which the claimant was entitled to costs, such appointment was held to be a continuation of the statutory arbitration, and the claimant was therefore entitled to the costs of the former })roceedings (s). ARTICLE 6. — If the promoters make no offer they must pay the costs. So held in Martin v. Leicester Watericorls Company {t), where it was held that the costs were recoverable by action from the company, although the claimant had not given any notice to the company of the amount of compensation claimed. ARTICLE 7. — The costs may be ascertained and settled subsequently to the award by the person or persons making the award, and this need not be within the three months fixed for making the award. So held in Gould v. Staffordshire Waterworks Conqmnji {u), where Pollock, C.B., said : " The result of the 34th section is, that the costs are not fixed by the award, which only deals with the amount of compensation, and that being ascertained, the right to costs follows according to the provisions of that section. The amount must be settled afterwards, and the true interpretation of the 34th section is, that it is to be settled by the person or persons who make the award." In arbitrations under the Arbitration Act, 1889 {x), the costs to be paid must be ascertained and stated in and by the award itself, or the costs of the reference and award, including the arbitrators' fees, are liable to taxation in the ordinary course {y). ARTICLE 8.— Where the sum awarded is less than the amount of the promoters' offer, the promoters are liable to pay the costs of the arbitration to the landowner if the award was not in respect of the same subject-matter in respect of which the offer was made. So held in Miles v. Great Western Railway Company {z). (s) Bfq. V. Manlvy Smith (1893), 6:5 L. J. Q. B. 171 ; 10 E. 611. (f) (185S), 27 L. J. Ex. 432 ; 3 11. ct N. 463. (h) (1850), 19 L. J. Ex. 281 ; 5 Ex. 214 ; 6 R. C. oB8 ; 1 B. C. C. 264 ; 14 Jur. 528; ovevrulinj? Lonibni ami Nnj-t/i-lVesfrrn Jtai/ivay Company v. Quirk (1848), 18 L. J. a. B. 89 ; 5 D. & L. 685 ; 5 B. C. 520. (x) Appendix B. , 2>nst- (y) In re Prchhlc and Jlohinson [1892], 2 Q. B. 602 ; 67 L. T. 267 ; 41 W. R. 30; 57 J. P. 54 ; //) re Stephens and Liverpool and Olohe Insurance Company (1892), 36 Sol. J. 464. (2) [1896], 2 (I. 15. 432 ; 65 L. J. U. B. 649 ; 75 L. T. 290. Hie Lamh Clauses Consolidation Act, 1845. 99 ARTICLE 9. — If an umpire award in respect of a landowner's sect. 34. claim for compensation a larger sum than the promoters offer in ~~ respect of that part, and at the same time award a smaller sum as to owner le- another distinct part of the claim, the landowner is only entitled to ^'o^eis more ^ '' than oner those costs of the arbitration which are incident to that part of his under one claim in respect of which compensation has been awarded. j^*^^*^^ ^^ claim, •^ ^ but no more This was decided in Iief/. v. Biram (a). Coleridg-e, J., said : " It second' head. clearly was intended to give the landowner costs only where his claim was well founded, and I think that any claim may, if its nature permits, be fairly separated into that which is well founded and that which is not, as has been done here. . . . Where the distinction between the two parts of the claim was broad and clear, the separation of them was perfectly proper." In another case, where the claimants claimed one sum in respect If claim is in of loss of business, and another for premises having been injuriously jgrrard nn t affected, and the promoters offered one sum as compensation in ^^ had to respect of the premises having been injuriously affected, and ""^ ^ another in respect of the loss of business, it was held that if the jury gave the same sum in the aggregate as the sum offered the claimant was not entitled to any costs, even though the jury reversed the position of the two sums(/>). ARTICLE 10.— Where a special Act incorporates the provisions ^vhere of the Lands Clauses Act, " except where expressly varied by the ^P'^fi'i^ -^ct .,..,, ,,, •lA.Li .. makes no special Act, and the special Act makes no provision as to costs, the provision as claimant is entitled to costs according to the provisions of the Lands *^ ^°***- Clauses Act. So held in Metropolitan District Raibray Comjmny v, Sharpe{c), where the special Act incorporated the provisions of the Lands Clauses Act, " except where expressly varied by the special Act." The special Act directed that arbitrations conducted under its pro- visions should be conducted by an arbitrator appointed by the Board of Trade, but contained no specific directions as to the award of costs. An arbitration took place under the special Act, and the arbitrator, in awarding compensation, said nothing about costs. It was held that the claimant was entitled to costs, on the ground that the substitution of one form of proceeding in the arbitration different from that contained in the Lands Clauses Act expressly varied the provisions of the general statute as to that matter, but did not {<() (18d2), IT Q. B. 969; Ifi Jur. 640; ^harpe v. Metropolitan District liaPiroi, Compaini (1879), 4 Q. B. D. 645 (not appealed on this point). (b) Ifai/wanl V. Metropolitan llaihcai/ Cvmpami (1864), 33 L. J. Q B. 73- 4 B. & S. 787 ; 9 L. T. 680 ; 12 W. R. 577; 10 Jm-. N. S. 418. {<■) (1880), 5 A. C. 425 ; 50 L. J. U. B. 14 ; 43 L. T. 617 ; 29 W. E. 617 • 44 J. P. 716. 100 Code of the Law of Compensation. Sect. 34. Costs payable within a reasonable time — execu- tion of con- veyance not condition precedent. "Reasonable" time is '• smallest possible " time. "Where verdict of jury set aside owner not entitled to costs. Landowner no lien for costs. repeal the provision as to costs, nor affect the general rule that the party succeeding in such an arbitration should recover costs. ARTICLE 11. — Where costs are awarded to a claimant they become payable to him within a reasonable time and the execution of the conveyance of the lands taken is not a condition precedent to the payment of such costs. This was decided in Capell v. Great Western Eaihcay Com- pany id), where Brett, M.R., said: "The railway company must pay the costs of the arbitration, and the plaintiff when he gets such costs is entitled to keep them, whether his title to the land turn out to be good or not. Then I think that he is entitled to such costs within a reasonable time after the award has been made, and I should say that the smallest possible time must be a reasonable time." Where a verdict of a jury is set aside on the ground that the claimant had no right to compensation, it has been held that be is not entitled to the costs of the inquiry {e). ARTICLE 12. — A landowner who has obtained compensation is not entitled to a lien on the land sold for the costs of the arbitration payable to him by the promoters. So held in Ferrers v. Stafford and Uttoxeter Raibcay Com- pany {f). Lord Romilly, M.R., said: "The Act does say that the company are to pay the costs. In addition to that it tells you how you are to recover the costs. You may recover them by an order of the Court of Chancery, under sect. 80. So that it would appear there is a distinction between the purchase-money and the costs. It is argued that a vendor may say : ' I won't convey the land to you, and I will not do anything about it until you pay the costs.' But the plaintiff has not taken that course. He has obtained a due investment of the money, and also an order in the usual form, such as is made every petition day, for the payment of the costs. The ways in which j)ayment of the costs may bo enforced are numerous. In the first place, the order of the Court is equivalent to a judgment. Nay more, you might bring an action upon the award, and recover them in that way. I believe also you might have a mandamus. At all events there is no difficulty in getting judgment against the company for the costs, and obtaining (d) (1883), 11 Q. B. D. 345 ; 52 L. J. Q. B. 348; 48 L. T. 505; 31 W. E. 555. (e) Todd v. Me! ropolitan District Ectihvuy Cvrnpamj (1871), 24 L. T. 435 : 19 W. E. 720. See also Sharpe v. Mitriqiol itan District Railitnaj Compaiu/ (1879), 4 Q. i;. D. 645 (not appealed ou this point) ; 5 A. C. 425. ( f) (1872), L. R. 13 Eq. 524 ; 41 L. J. Ch. 3G2 ; 2G L. T. 652 ; 29 W. E. 478". The Lands Clauses Consolidation Act, 1845. 101 a lien upon this land by tins means, but of course only j^ari passu Sect. 34. with the other creditors of the company. ... I am of opinion that if a person receives the due amount of the purchase-money, and either a conveyance is given, or what is tantamount to it, the vendor cannot afterwards say there are certain costs which have not been paid, and which are a charge upon the land. Xo doubt there is a charge upon the land for the unpaid purchase-money, but in this case that is all settled, and there is no question upon that part of the case." ARTICLE 13.— The Lands Clauses (Taxation of Costs) Act, 1895, Taxation of only applies to arbitrations exclusively under the Lands Clauses *''°^**" Consolidation Act, 1845. This Act Q/) repealed and re-enacted sect. 1 of the Lands Clauses Consolidation Act, 1869 (/O- lu Doulton v. Metropolitan Board of Works (i) it was held that this section only applied to arbitra- tions proceeding under the Lands Clauses Act, 1845, and not to arbitrations which embrace matters that could not be the subject of arbitration under the Lauds Clauses Act, 1845, except by agree- ment between the parties. But taxation can in such a case be obtained under the Solicitors Act (6 & 7 Tict. c. 73) (k). ARTICLE 14. — An action can be maintained for costs although the Aotion for amount of such costs has not been previously settled or ascertained by ^^^^^' taxation. So decided in Metropolitan Railivay Company \. Sharpe (I), where the House of Lords held that an order for taxation made by a judge, in giving his judgment for the plaintiflf, was a valid order. It was stated by Lord Romilly, M.R., in Ferrers v. Stafford and Enforcing Uttoxeter Kailwaj/ Company (ni), that an order for costs might be ^/"/^f^/j'J^,^^ enforced by niandamus. The Court, however, would be reluctant to sanction this method of procedure unless the case were free from all reasonable doubt. 35. The arbitrator.s .shall deliver their award in writing sect. 35. to the promoters of the undertaking, and the said promoters Awardto be delivered to ((/) Post. (h) Post. (?■) (1870), L. E. 5 Q. B. 333 ; 39 L. J. Q. B. 165 ; 18 W. E. 790. See also Wombiuell v. Barnsley Corporation (1S77), 36 L. T. 708. (A;) JVomhivell v. BarnsJey Gyrpondion, supra. (0 (1880), 5 A. C. 425 ; 50 L. J. Q. B. 14 ; 43 L. T. 617 ; 29 W. E. 617 ; 44 J. P. 716. See also Hi.hhirorth v. WUson (1863), 4 B. & S. 1 ; 32 L. J. Q. B. 289; 8 L. T. 434; 11 W. E. 733; 10 Jur. X. S. 171; Martin v. Leicester Wateriforl-s Compa,,// (1858). 27 L. J. Ex. 432 ; 3 H. & N. 463. ^(m) (1872), L. E.'l3 Eq. 524 ; 41 L. J. Ch. 362; 26 L. T. 652 ; 29 W. E. 478. See also Marlenzie v. Slicio and Hhannon Railwaii Comijani/ (1S50), 9 C. B. 250; 19L. J. C. P. 142. 102 Code of the Law of Compensation. Sect. 35, shall retain the same, and shall forthwith, on demand, at the promoters their own expense, furnish a copy thereof to the other of the imder- party to the arbitration, and shall at all times, on demand, ^ ^^"' produce the said award, and allow the same to be inspected or examined by such party or any person appointed by him for that purpose. Matidami/s to ARTICLE 1. — Promoters may be compelled by mandamus to take So held in Keg. v. South Devon Uailicay Company {n). In this case the promoters made a return to the writ of mandamus that they were quite willing to take up the award, but that the umpire refused to deliver it up unless his charges were paid. This was held to be a bad return, as there was nothing in the Lands Clauses Arbitrator has Consolidation Act to aflfect the arbitrator's common law right hen for his ^f \\e\\. It had been decided in an earlier case that the Court had charges. no jurisdiction to compel promoters to take up an award (o). Award should The mode of enforcing the taking up of an award is by pre- beenforcedby rogative writ of mandamus (p). In London and North- Western writ of Railway Company v. Walker {q), an order was made to this effect, mandamv.s. ^^^^^ Lord Halsbury, L.C., said : " The question here is whether there was an arbitration properly constituted under the provisions of the Lands Clauses Act. If there was, the Act specially enacts that under such circumstances the railway company shall take up the award. It does not conclude the rights of the parties. When the award has been taken up, any objection to the award which can by law be made, can then be made in an action upon the award." It is a good return to a writ of mandamus to compel promoters to take up an award, that the claimant had agreed to accept, and had been paid, a sum of money in satisfaction (r). It has also been held to be a good answer that the lands of the owner have not been injuriously affected (s). Wliere land- Where a landowner takes up the -award and pays the umpire's owner takes fees himself, he cannot recover the sum paid by him to the umpire pays^mpfre's 1^^ ^^ action against the promoters, as the payment by him was fees he cannot _ (;/) (1850), 15 Q. B. 1043; 20 L. J. Q. B. 145; 15 Jur. 464. (o) Sutton Harbour Commissioners v. Hitchms (1853), 16 Beav. 381. {p) Best Midland Itailway Conipuinj (1862;, 10 W. E. 583. (./•j Appendix B., post. iy) Londoit and S'orth-Westtrii Railway Company \. Walker 1_1900'], A. C. 109 ; 69 L. J. Q. B. 367 ; 82 L. T. 93 ; 48 W. E. 384 ; 64 J. P. 483. See alf^o Thonipioii V. Totteiihain and Forest Gate Fuiilway Company (1892), 67 L. T. 416; 57 J. P. 181. (z) East London Union v. Metropolitan Railway Compjany (1869), L. E. 4 Ex. 309; 38 L. J. Ex. 225. See also Laird v. Pirn (1841), 7 M. & W. 714; 10 L. J. Ex. 259. 104 Code of tlic Law of Compensation. Sect. 36. Wheie sub- mission pro- vided for pay- ment in three days. Iiijunction to restrain action for compensation where plain- tiff was dis- satisfied with award. Promoters cannot dispute the amount. But may deny title, «fcc. Arbitrator may be a witness. What he may be asked. Purchase- money — garnishee order. But where the submission provided that the compensation should be paj'able in three days, and that thereupon the landowner should execute a conveyance, the Court ordered the money to be paid although the conveyance had not been tendered [a). Where, after an award had been made compensating the plaintift' for the injury done, the plaintiff, considering that certain rights had not been included in the award, instituted a suit to enforce them, and at the same time commenced an action to recover the amount of compensation awarded, the Court, at the instance of the promoters, the defendants, granted an injunction to restrain the action until the hearing of the cause (b). Where the claim is valid in other respects the promoters, when defending an action to enforce the award, cannot dispute the amount of damages (c). The defence should deny the facts upon which the claimant relies, and plead that his interest has not been injuriously affected, or that his lands have not been taken ((/); or that the special Act contains no provision entitling an owner whose lands have been injuriously affected, to compensation (('). ARTICLE 2. — An arbitrator may be called as a witness in an action to enforce his award. This was decided in Biicdench v. Metropolitan Board of Works (f). The arbitrator may be asked what passed before him and as to what matters were presented to him for consideration ; but no questions can be put to him as to what passed in his own mind "svhen exercising his discretionary power on the matters submitted to him. ARTICLE 3. — Purchase-money cannot be attached by garnishee order before execution of conveyance. In Iloicdl V. Metropolitan iJistriet Ilailivaij Company {anif (1866), L. E. 1 C. P. 241 ; 35 L. J. C. P. 163 ; 14 \Y. E. 393. [e) BmadJifnt v. Imperial das Conijiany (1859). 7 II. L. C. 600 : 7 De G. M. & G. 436; 29 L. J. Cli. 377 ; 26 L. J. Ch.'276; 5 W. E. 272; 5 Jur. X. S. 1319. (/) (1871), L. R. 5 H. L. 418; 41 L. J. Ex. 137 ; 27 L. T. 1 ; L. E. 3 Ex. 306; L. E. 5 Ex. 221. See also In re Dare Valley Raihvai/ Company (1869), L. E. 4 Ch. App. 554 ; L. E. 6 En. 429 ; 38 L. J. Ch. 417 ; 20 L. T. 219; 17 W. E. 717. (V) (1881), 19 Ch. D. 508; 51 L. J. Ch. 158 ; 45 E. T. 707 ; 30 W. E. 100. The Lands Chiuscs ConsoJidatiou Act, 1845. 105 after notice to treat by a railway company to a landowner, the Sect. 36. purchase-money and compensation had been fixed by the verdict of a jury, it was held that the purchase-money could not be attached by a garnishee order nisi, served upon the company by a judgment creditor of the landowner after the verdict, but before the execution of the conveyance. The ground of the decision was that the purchase-money was not a debt actually " due or accruing " within the meaning of the garnishee orders. Chitty, J., said: "The purchase-money was not a debt actually 'due or accruing' Purchase- within the meaning of the garnishee orders, for the right to it debt "due or was conditional upon the execution or tender of a conveyance by accruing. ' the vendor. The provisions of the 8th rule of Order 45, as to payment or execution being a valid discharge to the garnishee, are inapplicable to a conditional debt. To hold that the purchase- money was bound by the garnishee orders would be, in eflect, to deprive the purchasers of their right to withhold payment of their purchase-money until they got their conveyance." It was held in the same case that the purchase-money cannot be Garnishee attached by a garnishee order served after the execution of the execution of conveyance where the money has been paid into Court by the conveyance, promoters under the judgment. In view of the above decisions it is hardly necessary to cite an authority for the proposition that a mere notice to treat does not constitute " a debt owing or accruing " Avhich can be attached under Order 45, rule 2, of the Rules of the Supreme Court (It). ARTICLE 4.— Either party may enforce an award by an action for Enforcing ■ « r. award bv an specific performance. action for In Rey cut's Caiuil Coutpanti v. Ware (i) the promoters enforced performance. an award by an action for specific performance. It was held that the contract for the purchase of land is complete when notice to take land has been served and the value has been fixed by an arbi- trator appointed by the owner and the company. In the same case it was held that the Court will order specific performance notwith- standing the provisions of sects. 76 and 77 (A) ; and although it is ^"o**^=^- unusual to give the promoters costs if they proceed to enforce the contract otherwise than by the means provided by the Act, costs will be given in an action for specific performance, if the landowner by his conduct has rendered it doubtful whether the proceeding under the Act could satisfy all the impediments interposed. In Harding v. Metyopolitan Raihcay Company (I) specific (//) Richardson v. Elmit (1876), 2 C. P. D. 9 ; 36 L. T. 58. (0 (1857), 23 Beav, 575 ; 26 L. J. Ch. 566 ; 5 W. E. 617 ; 3 Jur. X. S. 924. (A-) Fast, jjp. 220, 221. (0 (1872), L. E. 7 Ch. App. 154 ; 41 L. J. Ch. 371 ; 26 L. T. 109 ; 20 ^\. E. 106 Code of the Law of Compensation. Sect. 36. performance was decreed on the application of the landowner. In that case it was also held that the company that has paid the purchase-money and been admitted into possession will, at the suit of the lessee within a reasonable time, be compelled to accept an assignment containing the usual covenants. To entitle the promoters to a decree of specific performance the requirements of the Lands Clauses Consolidation Act must have been strictly complied with (m). Where the promoters have entered into possession of the land after the price has been ascertained or agreed upon, the landowner, in addition to bringing an action for specific performance, may enforce his lien on the property as an unpaid vendor (n). ARTICLE 5. — A landowner cannot file a petition to wind up a company for non-payment of compensation awarded until the title has been investigated and accepted by the company. So held in I)i re Milford Docks Cumpany (o), the ground of the decision being that, until the title has been investigated and accepted by the company, the non-payment of compensation awarded does not constitute a debt in respect of which a land- owner is entitled, as an unpaid creditor, within sect. 82 of the Companies Act, 1862, to apply for a winding-up order. 37. No award made with respect to any question referred "^ ^ to arbitration under the provisions of this or the Special Award not i i 1 1 i • ^ r ■ ^ • • x> void through Act shall DC sct asidc lor irregularity or error m matter ot form. Vendor's lien. Petition to wind up com- pany for non- payment of compensation awarded. Sect. 37. error in form. When award will be set aside. ARTICLE 1.— An award will be set aside on the ground that the arbitrator has exceeded his jurisdiction or has been guilty of mis- conduct, or where there is an equitable ground for interference. In Dahe of Biicdetich v. Metrupolitau Board uf ]]'orks {}>) '621. See ulso Mason v. Stokes Bat/ llaihvay Co/njiatii/ (1863), 32 L. J. Ch. 110; 11 W. E. 80 ; Baker v. MeiropoUtau llaikuaij Compain/ (18(33), 31 Beav. 504; 32L. J. Ch. 7; 7 L. T. 494 ; 11 W. E. 18 ; 9 Jur." N. !S. 41; In re J'l(j(jott anil (ireat Western Baihraij Cornjiatu/ (1881), 18 Ch. D. 146; 50 L. J. Ch. 679 ; 44 L. T. 792 ; 29 W. E. 727. (rii) Bridejetid Gas and ]\'uter Com/iaui/ v. Lintrureu (1885), 31 Ch. D. 219; 55 L. J. Ch. 91 ; 53 L. T. 714 ; 34 W. E. 119. See also Wycombe Baihnni C'(inpany\. iM.iuriiajioi, JJospHal (1866), L. E. 1 Ch. App. 268; 14 L. T. 179'; 14 W. E. 359 ; 12 Jur. N. S. 347 ; Baker v. MeiropolitiDi li'aihiai/ Compami (1863), 31 Beav. 504; 32 L. J. Ch. 7 ; 7 L. T. 494; 11 W. E. 18 ; 9 Jur. N. S. 41. (») W'iia/ V. Totteuhani and Jlanipstiad Jnnction Bailivaij dompuny (1868), L. E. 3 Ch. App. 740 ; 37 L. J. Ch. 654 ; 16 W. E. 1098 ; Walker v. Ware, ee also Haijward v. .Vetropofitan PMltvmij Compau,, (1864) 33 L J Q B 73 ; 4 B. & S. 787 ; 9 L. T. 680 ; 12 W. E. 577 ; 10 Jur. N. 8. 418. " " * * (1) Metrcpolitan Bailnjai/ Comparn/ v. Turnliam (1863), 32 L. J M C 249- 8 L. T. 280 ; 14 C. B. X. S. 212 ; 11 W. E. 695 ; pont, p. 130. ' ' " (m) Lascelles v. Swansea School Board (1900), 69 L. J. Q. B. 24 ; 63 J. P. 1 42. 112 Sect. 38. Sect. 39. Warrant for summoning jmy to be addressed to the sheriflF. Sect. 41 of Regulation of Railways Act . 1868 — judge and jnry. High bailifE in cit}' of Westminster. Code of the Law of Compensation. is not less than that awarded to the claimant by the arbitrators, the claimant must bear his own costs incident to the arbitration. 39. In every case in which any such question of disputed compensation shall be required to be determined by the verdict of a jury the promoters of the undertaking shall issue their warrant to the sheriff, requiring him to summon a jury for that purpose, and such warrant shall be under the common seal of the promoters of the undertaking if they be a corporation, or if they l^e not a corporation under the hands and seals of such promoters or any two of them ; and if such sheriff be interested in the matter in dispute such application shall be made to some coroner of the county in which the lands in question, or some part thereof, shall be situate, and if all the coroners of such county be so interested, such application may be made to some person having filled the office of sheriff or coroner in such county, and who shall be then living there, and who shall not be interested in the matter in dispute ; and with respect to the persons last mentioned preference shall be given to one who shall have most recently served either of the said offices ; and every ex-sheriff, coroner, or ex- coroner shall have power, if he think fit, to appoint a deputy or assessor. This section is subject to the modification contained in sect. 41 of the Regulation of Railways Act, 1868 (n), which provides, that in the case of lands taken or injuriously affected by the execution of the works of any railway company, compensation may, on the application of either party, be assessed before a judge and jury in the High Court. By the Lands Clauses Consolidation Act, 1869, s. 3(o), the high bailiff is substituted for the sheriff ni the city of West- minster. sheriff interested. Warrant may ARTICLE 1.— If the under-sheriff be interested the promoters may issue to sheriii nevertheless issue their warrant to the sheriff. ■where under- So held in Worslcjj v. Smith Devon llaiUcay Company {p). Ihe objection taken in this case was that the word " sheriff," by sect. 3 {q), includes the " under-sheriff or other legally competent deputy." The answer made to this objection was that clause 3 is introduced by the words "unless there be something either in (?i) Post. (o) Pod. Ijj) (1S51), 20 L. J. Q. B. 254 ; IG Q. B. 539 ; 15 Jur. 970. (2) Ante, pp. 7, 11. Tlie Lands Clauses Consolidation Act, l(S4o. 113 the subject or context repugnant to such construction." Lord Sect. 39. Campbell, C.J., said : "It seems to me that it would be repugnant to the subject and context of sect. 39 to adopt the interpretation contended for by the plaintiff, because it would require us to read it that the warrant may be issued to the sheriff or under-sheriff, or other legally competent deputy, which is not the case ; for the warrant must go to the sheriff, unless he is himself interested." "Where the under-sheriff is interested, the sheriff must take the Where inquisition himself or appoint a competent deputy. interested" ARTICLE 2. — In order to disqualify a sheriff Ms interest must be Interest niust direct and certain, and not merely remote or contingent. certain^ ^° Where, at the time of the summoning of a jury and the taking of an inquisition before the sheriff as to the amount of compensa- tion to be paid by a railway company, there was an executory agreement not yet carried out, by which that company would ultimately become amalgamated with another railway company, and the sheriff was a shareholder in the latter company, it was held that the sheriff was not interested in the matter in dispute (r). If a sheriff is a ratepayer in a district and liable to be rated for the compensation, he is interested and will be disqualified (s). ^\Tiere a sheriff is interested a certiorari will issue to bring up Where sherifE the inquisition notwithstanding sect. 145, even where no damage ^^'^^''^sted ^ o ' D proceedings has been suffered (t). may be quashed by ARTICLE 3. -The fact that sheriff or under-sheriff is interested ''^'^^''"^"'^'■ may be waived by the parties. interested— So held in Ex parte Baddeley {u) . In that case the company issued their warrant to the sheriff to summon a jury to assess com- pensation, and the under-sheriff before whom the inquisition was to be held, previous to the inquiry, informed the landowner that he was a shareholder in the company, and the landowner made no objection until the verdict had been given. It was held that he had elected to waive the protection of the statute. But where a party conducted his own case and did not know that the sheriff was interested, it was held that he had not waived his right to make an objection subsequently {x). \vaiver. (r) Reg. y. Manchester, Sheffield, and Lincolnshire Railway Company (1867), L. E. 2 Q. B. 336; 36 L. J. Q. B. 171 ; 16 L. T. 173 ; 15 W. E. 676. («) Reg. V. Sheriff of Warwickshire (1854j, 3 W. E. 164. (t) Reg. V. London, and North- Western Railwau Companu (1863), 9 L. T. 423 ; 12W. E. 208. ^ 1 JK )^ {n) (1849), 5 E. C. 542 ; 5 D. & L. 575. See also Corrigal v. London and Bhckwall Railway Company (1842), 2 D. P. C. 851 : 12 L. J. C. P. 209 • 3 E.G. 411; 5M. &G. 219. (x) Reg. V. Sheriff of Warwickshire (1854), 3 W. E. 164. L.C. ft 114 Code of the Law of Compensation. Sect. 39. Under-sheriff may sign in name of sheriff. Two sheriffs — one interested. Claimants with separate interests are entitled to separate assessments. But not one claimant with several distinct interests. Mmtdatmts to proHioters to issue warrant to sheiiff. If the inquisition is held before the under-sheriff it should be signed in the name of the sheriff. The under-sheriff or other deputy may add " by his deputy " (//). ARTICLE 4. — Where there are two sheriffs and one is interested, the warrant should go to the other, and not to the coroner. So held in Lctsom v. Bicldeji {s). ARTICLE 5. — Every claimant of a separate interest is entitled to have his interest assessed by a separate jury. In Ahrahams v. Corporation of Loudon (a) the lessee of two houses had granted under-leases of parts thereof, and the under- lessees had again granted inferior interests. The defendants issued a warrant to the sheriff to summon a jury to assess the compensa- tion payable to the lessee and under-lessees, who were all named together in the warrant. Giffard, Y.-C, restrained the corporation from proceeding upon the warrant on the ground that each claimant of a separate interest was entitled to have his compensa- tion separately assessed from the claims of any other claimant. But it was held in Starr v. Corporation of London (b) that where one person has several distinct interests in one property or in several distinct properties, he is not entitled to object to having the compensation of all such interests assessed by one jury and in one trial. Lord Romilly, M.R., said: "All that Giffard, V.-C, intended to lay down in Ahrahams v. Corporation of London (c), was this — that where there are different persons having different estates and interests in the property taken, then the persons taking the property are not entitled to lump these estates and interests together before a jury, and leave it to the different parties interested to divide among themselves the sum of money awarded by the jury, or to have a fresh jury to determine what aliquot share belongs to each ; but where there is only one person who has different claims and different interests in the property., or in different properties, all of which are taken by the corporation, then I am of opinion that tliey are entitled to assess them together." ARTICLE 6.— If the promoters fail to issue a warrant to the sheriff to summon a jury within a reasonable time after the notice to treat they may be compelled to do so by mandamus. The prerogative writ of nuDtdanius is the more convenient (2/) Reg. V. Perkin (184o), T Q. B. 165 ; 14 L. J. M. C. 87 ; 9 Jur. 686; Stroud V. Waits (1846), 3 D. & L. 799 ; 10 Jur. 497. (2) (1816) 5 M. & S. 144. See also Il'ors/p// v. South Devon Ruilway Coin- paiDi (1851), 20 L. J. Q. B. 254 ; 16 Q. B. 5;39 ; 15 Jur. 970. {a) (186S), L. R.6 Eq. 625; 37 L. J. Ch. 732; 18 L. T. 811. ih) (1869), L. 11. 7 Eq. 236; 20 L. T. 937. See also Ecclesiastical (hm- 'iiiissiouers v. Commissioners of Sewers (1880), 14 Ch. D. 305; 28 W. E. 824. {r) Supra. The Lands Clauses Consolidation Act, 1845. 115 method of procedure, but a claimaut may proceed by action for a Sect. 39. ))iaiida»iHS. In Fotherhy v. Metropolitan Ilaiheny Company (d), where the defendants had failed within a reasonable time to issue their warrant to the sheriff to summon a jury, Erie, C.J., said: "Here the plaintiff's claim is of the class entitling him to a remedy by mandamus, being of a quasi-public character. The power of dis- posing of his laud as he pleases has been taken away, and beyond all question he has a right to have the warrant issued that he may recover the value of the land, or else to have the notice withdrawn and his power over the land restored to him. I think that even though he had not any cause of action for which he could declare in an ordinary action for damages, yet he would have a right to have recourse to an action for mandamus.'' AYhere arbitration proceedings had gone off and the claimant had Where arbi- . . 1 , . , 1 . , tration pro- given notice to the promoters requirmg them to issue their warrant ceedings had for a jury to assess the amount of compensation, it was held that !f|^.^°"„. after refusal a mandamus lay to compel the promoters to issue their warrant for that purpose (f). lu the same case it was held that it was enough to show a refusal I* is enough ■ IP c .to show- on the part of the promoters, and that no particular form of notice refusal on upon them was necessary. A notice served upon the solicitor P^^* °^ i -^ '- company. acting for the promoters is sufficient. It is no answer to a mandamus to compel promoters to issue No answer , , , , . . that whole of their warrant to the sheriff, that when the notice to treat was given cai)itai not the whole of the capital had not been subscribed (/). subscribed. ARTICLE 7.— The warrant to the sheriff must agree with the Warrant must notice to treat, and the land described in it should be neither more ''*"''^^ Y^^'' . ' notice to treat. nor less than that contained in the notice to treat. So held in Stone v. Commercial liailuay Company (g). But any Waiver by inconsistency may be Avaived by the landowner appearing before ^° owner, the jury for the purpose of having compensation assessed, and proceeding to trial {h). It is not necessary that the particulars of the land required Particulars of should appear in the warrant (i), but if the particulars are given {(l) (1866), L. E. 2 C. P. 188 ; 36 L. J. C. P. 88 ; 15 L. T. 243 ; 15 W. E. 112; 12 Jur. N.S. 1005; ante, pp. 66, 74. See also Moryan v. Metropolitan Railicaij Comi>uny (1869), L. E. 4 C. P. 97 ; 38 L. J. C. P. 87 ; 19 L. T. 655 ; 17 W. E. 261; ante,^. 67. (e) Ex parte Senior (1849), 18 L. J. Q. B. 333 ; 7 D. & L. 36 ; 14 Jui'. 1093. (/) (Jiiest V. Foole and Bournemouth Fuiilu-ay (.'ompany (1870), L. E. 5 C. P. 553 ; 39 L. J. C. P. 329 ; 22 L. T. 589 ; 18 W. E. 836. { quash order instance of the landowner. The Court held that the recorder s for post- duty was to execute the precept, and that he had no power to post- ponement. pone the execution thereof (li). The Court also held that the proper remedy in such a case was to apply for a certiorari to bring up the order to have it quashed. ARTICLE 2. — If any juryman is disqualified the remedy is by Disqu.alifica- challenge; the proceedings cannot be questioned afterwards on the men— on"/' ground of absence of jurisdiction or irregularity. remedy by challenge — This was decided in In re Chelsea Waterworks Company, Ex proceedings jKirte Phillips (o), where Parke, B., said : " There are great diffi- dated. culties in saying that the verdict can be upset. The right of challenge is the remedy given in such cases ; that should have been exercised. The jurymen might have been examined as to their property, and might have been indicted if they gave false evidence. The Court cannot interfere now, nor does it signify, for the objection is more a matter of form than substance." ARTICLE 3.— Where a verdict of the jury is set aside sheriff must Where verdict set (isicic summon a fresh jury under the original warrant. sheriff must So held in Horrocks v. Metrojwlitan Faiihcaij Company {}>), in jury under which case it was held that the warrant remained unimpeached. original Erie, C.J., said : " The 41st section of the Lands Clauses Consolida- tion Act, 1845, gives a direction to the sheritf which is obligatory on him ; he is, not less than fourteen days nor more than twenty- one days after receiving the warrant, to summon a jury for settling any case of disputed compensation. But if attempts to do his duty are frustrated by the order of a Superior Court, he ought to go on again as if no such dithculty had arisen. I think he may summon a fresh jury under the authority conferred upon him by the warrant already issued." In Tanner v. Sicindon liailway Company (q), a verdict of a jury Verdict set was set aside where the plaiutifi' had given the jury a champagne ground^of luncheon. An application was made in the case to have the second treating. (?/) Galloicaij V. Corporation of London (1866), 12 Jm-. N. S. 182. (o) (1855), 10 Ex. 731 ; 24 L. J. Ex. 79; 3 W. E. 174; 1 Jur. N. S. 143. ip) (1865), 19 C. B.N. S. 139. iu) (1881), 45 L. T. 209. 118 Code of the Law of Compensation. Sect. 41. Where verdict has been set aside case cannot he heard in High Court under Regulation of llailwavs Act. 1868. Sect. 42. Jury to be impanelled. trial before a judge and jury under sect. 41 of the Regulation of liailways Act, 1868 (r). The application was refused as the old warrant was still in force and could be acted upon. The application Avas also too late, as the twenty-one days limited by sect. 41 elapsed after the taking out of the summons, but before it was returnable. 42. Out of the jurors appearing upon such summons a jury of twelve persons shall be drawn by tlie sheriff, in such manner as juries for trials of issues joined in the Superior Courts are l)y law required to l^e drawn, and if a sufficient number of jurymen do not apjDcar in obedience to such summons the sheriff shall return other indifferent men, duly qualified as aforesaid, of the l)ystanders, or others that can speedily be procured, to make up the jury to the number aforesaid ; and all parties concerned may have their lawful challenges against any of the jurymen, but no such party shall challenge the array. Trial before If there are not twelve jurors present, the parties may, by con- twelve juror? ^^"^^ ^f both sides, try the question of compensation before a smaller number. Disqualifica- tion of jur3-- man does not invalidate liroceedings. ARTICLE 1. — If any juryman is disqualified the proceedings cannot be questioned afterwards on the ground of absence of jurisdiction or irregularity. So held in In re Chelsea Water worlis, Ex parte Phillips {s). Where a juryman was taken ill and another chosen in his place, it was held in an action for the amount of the verdict that objection could not be taken that he was disqualified. The remedy was by challenge, and that having been omitted, there is no other, even although the juryman in question had been objected to at the hearing (0 . Sect. 43. Slicriff to preside, wit- nesses to be summoned. 43. The sherifl' shall preside on the said inquiry, and the party claiming compensation shall be deemed tlie plaintiff, and shall have all such rights and privileges as the plaintiff is entitled to in the trial of actions at law ; and if either party so request in writing, the sheriff shall summon before him any person considered necessary to be examined as a witness touching the matters in question, and on the like request the sheriff shall order tlie jury, or any six or more of them, to view the place or matter in controversy, in like (r) Fi^st. is) (1855), 10 Ex. 731 ; 24 L. J. Ex. TO ; 3 W. R. 174 ; 1 Jur. N. S. 143. (t) Cooling v. Gr<(it Norihrn liniliray Company (1850), 15 Q. B. 486; 19 L. J. Q. B. 529; 14 Jur. 875. The Lands Clause's Consolidation Act, 1845. 119 manner as views may be had in tlie trial of actions in the sect. 43. Superior Courts. ARTICLE 1. — A sheriff cannot depart from the precept in any Sheriff must respect. ^'^"'^^\ ivo^/v-vi. precept. In Ahraliams v. Corpoyatlo)i of London (u), Giffard, V.-C, said: " I can have no doubt whatever but that any judge who has to act under this warrant or pra3cipe must act in direct and strict accordance with it, and that the verdict and the judgment and all the proceedings must follow the terms of the prtecipe, and that he can have no discretion to depart from it in any respect.'" Where there is a defect in the tribunal assessing compensation, ^Vaiver of the Court will not grant a certiorari to quash the proceedings on constitution the application of a party who, with knowledge of the defect, °^ tribunal, appears and takes the verdict of the jury. This was decided in Eminanuel Hospital Trustees v. Metropolitan District Ilaihcajj Couij>ani/ {.r), where a deputy high bailiff of Westminster presided at the inquisition. The case arose before the Lands Clauses Consolidation Act, 1869 (j/). 44. If the sheriff make default in any of the matters Sect. 44 hereinbefore required to be done by him in relation to any penaity^n such trial or inquiry, lie shall forfeit fifty pounds for every sheriff and such offence, and such penalty shall be recoverable by the default. promoters of the undertaking by action in any of the Superior Courts ; and if any person summoned and returned upon any jury under this or the Special Act, whethc]- common or special, do not appear, or if appearing, he refuse to make oath, or in any other manner unlawfully^ neglect his duty, lie sliall, unless he show reasonable excuse to the satisfaction of the sheriff, forfeit a sum not exceedino* ten pounds, and every such penalty payable by a sheriff or jujyman shall be applied in satisfaction of the costs of the inquiry, so far as tlie same will extend ; and, in addition to the penalty hereby imposed, every such juryman shall be subject to the same regulations, pains, and penalties as if such jury had been returned for the trial of an issue joined in any of the Su[)erior C^ourts. 45. If any person duly summoned to give evidence upon Sect. 45, any such inquiry, and to whom a tender of his reasonal)le penalty ou expenses shall have been made, fail to ai)pear at the time ^^itiiesses ' i. i- making " ~~ default. (") (1868), L. E. 6 Eq. 625 ; 37 L. J. Ch. 7::i2 ; 18 L. T. 811. (■'•) (1869), 19 L. T. 692. See also ix%. v. South Holland Draiuaae Committee (1838), 8 A. & E. 429; 1 P. & I). 79. iu) Post. 120 Code of the Law of Compensation. Sect 45 Sect 46 Notice of inquiry. "Waiver of ten days' notice. Sect. 47. If the party make default the inquiry not to proceed. Sect. 48. Jury to be sworn. and place specified in the summons without sufficient cause, or if any person, whether summoned or not, who shall appear as a witness refuse to be examined on oath touching the subject-matter in question, every person so offending shall forfeit to the party aggrieved a sum not exceeding ten pounds. Since the Oaths Act, 1888 (51 & 52 Yict. c. 46), a witness may object to be sworn on the ground that he has no religious belief, or that taking an oath is contrary to his religious belief, in which case he may make a solemn affirmation instead of taking an oath. 46. Not less than ten days notice of the time and place of the incjuiry shall be given in writing by the promoters of the undertaking to the other party. ARTICLE 1. — The length of this notice may be waived by the conduct of the claimant. In Lang v. Glasgow Court-house Commissioners {:>), a Scotch case arising out of the corresponding section of the Lands Clauses Consolidation (Scotland) Act, 1845, it was held that this clause is imperative and not merely directory, and applies to the case of special as well as to the case of common juries. It may, however, be waived by the conduct of the claimant. In the case cited he was held to have waived any objection to improper notice by having appeared before the sheriff and agreed to the fixing of the day. 47. If the party claiming compensation shall not appear at the time appointed for the inquiry such inquiry shall not be further proceeded in, but the compensation to be paid shall be such as shall be ascertained by a surveyor appointed by two justices in manner herein-after provided. The appointment of the surveyor is dealt with in sect. 59, and the following sections (a). 48. Before the jury proceed to inquire of and assess the compensation or damage in respect of which their verdict is to l)e given they shall make oath that they will truly and faithfully inquire of and assess such compensation or damage, and the sherifi" shall administer such oaths, as well as the oaths of all perscms called upon to give evidence. Since the Oaths Act, 1888 (51 & 52 Yict. c. 46), a juryman may object to be sworn, on the ground that he has no religious belief, or that taking an oath is contrary to his religious belief, in which case he may make a solemn affirmation instead of taking an oath. (2) (1871), 9 Ct. Sess. Cas. (3rd Ser.), 768. (o) Post, p. 137. age, to be sed The Lands Clauses Consolidation Act, 1845. 121 49. Where such inquiry shall relate to the value of lands sect. 49. t(j be purchased, and also to compensation claimed for sums~tobe injury done or to be done to the lands held therewith, the p|;!^J/°5 f^^Jj^ jury shall deliver their verdict separately for the sum of and for money to be paid for the purchase of the lands rcquired for 'll^^^fj^^ the works, or of any interest therein belonging to the separately, party with whom the question of disputed compensation shall have arisen, or which, under the provisions herein contained, he is enabled to sell or convey, and for the sum of money to be paid by way of compensation for the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such lands by the exercise of the powers of this or the Special Act, or any Act incorporated therewith. ARTICLE 1.— There may be an injiu-y to land from severance Damage by , . J- i i_ severance although the land taken by the promoters is not immediately fiom land not contiguous to that retained by the claimant. contiguous. So held in Holt v. Gaslight and Coke ConqKinij {h). lu that case a volunteer corps obtained leases of different plots of land for the erection of a rifle range. Immediately behind the butts was land occupied by A., and beyond that some marsh land, both ot which were required by the rifle corps to make provision for the safety of the public during the time the butts were in use. The plaintiffs obtained a lease of the marsh land, but only made a verbal agreement with A. for the use of his land during the rifle practice in consideration of an annual payment. The defendants under their compulsory powers took a portion of the marsh laud occupied by the plaintifis, and this put a stop to the use of the rifle range. The jury assessed the value of the land taken, and the damage for injury to the rifle range. It was held that there might be an injury from severance within the meaning of the Act, although the land taken was not immediately contiguous to that retained by the plaintiffs, and that the fact that the plaintiff's had only a precarious occupation of the land occupied by A. only affected the quantum of damages to be awarded to them. ARTICLE 2.— If a iury include in one sum the price of the land ^'"'ce and '' '' • v J damage and the compensation for damage, the inquisition is not void, the words included in in sect. 49 being dii'ectory only and not compulsory. one sum — in(iuisition In Corrigal v. London and Blackwall Raihcay Company (c) the ^^^ ^o"^^- (6) (1872), L. R. 7 Q. B. 728 ; 41 L. J. Q. B. 351 ; 27 L. T. 442. (c) (1842), 12 L. J. C. P. 209 ; 2 D. P. C. 851 ; 3 E. C. 411 ; 5 M. & G. 219. See also In re London and Greemvich liailway Companij (1835), 2 A. & E. 678 ; 4 L. J. K B. 103 ; 4 N. & M. 458. 122 Code of the Law of Compensation. Sect. 49. Verdict by- consent for a lump sum. proceedings were under a local Act, but the provision was similar to that contained in sect. 49, the w^ords being "that the satisfaction, recompense, or compensation for such damage or loss shall be inquired into and assessed separately and distinctly from the value of the lands so to be taken or used as aforesaid." Tindal, C.J., said : " The question is whether the words just adverted to are compulsory, and in the nature of a condition, so that if they are not observed, the inquisition and subsequent judgment are to be held void ; or whether they are directory only, so that the company or the claimant might call on the sheriff to keep the evidence distinct as to the value of the premises and the satisfaction for damage done, and to find and adjudicate a separate sum in respect of each. We think the words directori/ only. There are no expressions in the statute which require them to be construed as words of condition, or to show such intention on the part of the Legislature ; and they are not to be construed to avoid the proceedings unless such appears the necessary construction." This case was followed in In re JhridslKuc's Arhitration (d), where Lord Denman, C.J., said: "In this case several objections were made against the award of the umpire. First, that one sum was awarded for damage and price, instead of a separate sum on each point. The answer is, that in respect of arbitration, there is no requirement in the statute for separate assessments ; and that in resj^ect of verdicts upon inquisition, such requirements as are in sect. 49 of the present statute are directory, and not conditional — In re London and Greenwich Ilaihcaii Conqmny, Corrigalx. London and Blackwall Ilaihcay Company " {e). In In re North London Ilaihray, Kx parte IIayne{f), a verdict was taken by consent for a lump sum, no separate assessments being made for the lessee's interest in the lease, and damage to trade, by severance, &.c. The lease was subsequently discovered to be invalid. It was held that the sum of money found by the verdict must be treated as the value which the jury by agreement assessed for the interest claimed, and not as representing the actual interest of the claimant. Sect. 50. 50. The shcrill" Ix'forc wlioni sudi iiujiiiiy shall 1)C held Verdictaiid sliali give judgiiieiit for the purchase-money or eonipeiisa- judgment to tioii iissesseJ l)y sucli juiy, uud the venliet and judo'ineiit shall he signed hy the sheriii', and being so signed shall be {d) (1848), 12 Q. B. 562 ; 17 L. J. Q. B. 362 ; 5 B. C. 527 ; 12 Jur. 998. (e) Siij>r(i. If) (1865), 12 L. T. 200; i:} AV. B. 492. See also Jlvaufnrt v. .S/r^n/.sY-r/ Ilarhmr Tnistris (IS(iO), 2!) L. J. C P. 24 1 ; 8 C. B. N. S. 14(3; 1 L. T. lili): 8 W. E. 188. Tlic Lands Clauses Consolidation Act, 1845. 128 kept by the clerk of the peace among the records of the Sect. so. o-eneral or quarter sessions of the county in Avhich the Jands or any part thereof shall be situate in respect of which such purchase-money or compensation shall have been awarded ; and such verdicts and judgments shall be deemed records, and the same or true copies thereof shall be o-ood evidence in all Courts and elsewliere, and all persons may inspect the said verdicts and judgments, and may have copies thereof or extracts therefrom, on paying for each inspection thereof one shilling, and for every one hundred words copied or extracted therefrom sixpence, which copies or extracts the clerk of the peace is hereby required to make out, and to sion and certifv the same to be true coines. ARTICLE 1.— The verdict of the jmy and judgment of the sheriff Verdict and do not create an absolute debt due from the promoters to the not'cieatean landowner. absolute debt. Therefore the amount of compensation cannot be the subject of garnishee proceedings. In Hoicrll v. Metropolitan District Rail- ivaij Company {(j) Ciiitty, J., said: "To hold that the purchase- money was bound by the garnishee orders would be, in effect, to deprive the purchasers of their right to witbhold payment of their purchase-money until they got their conveyance." ARTICLE 2. — The sheriff and jui-y cannot decide questions of :>iieriff and title or the right to claim compensation, but only the amount of ii^Mnhe^nto compensation. title. This has been decided in several cases. In Reg. v. London and Xorth-Western lladway Companji (Ji) Eight of way. the jury returned a verdict upon a claim for compensation in respect of an obstruction of a right of way, negativing the evidence of the right of w^ay, and finding that the claimant had sustained no damage. The Court set aside the verdict and judgment. In Lx parte Cooper, In re Xortli London Uaihvay Company (/), Leasehold it was held that as respects leasehold interests the functions of a ^" °'^^ ' compensation jur}^ extend only to ascertaining the value of tbe leasehold interest claimed. In that case the leases were, sub- sequently to the judgment in the inquisition, found to be invalid, and the Court ordered that the claimant was entitled to so much of the amount awarded as represented the value of improvements {(j) (1881), 19 Ch. D. 508; 51 L. J. Cli. 158 ; 45 L. T. 707 ; 30 W. E. 100. (/;) (1854\ 3 E. & B. 443; 23 L. J. Q. B. 185 ; 18 Jur. 993. (0 (1865), 34 L. J. Ch. 373 ; 11 L. T. 661 ; 13 W. E. 364; 2 Dr. & Sm. 312; 11 Jur. N. S. 103. 124 Code of the Law of Compensation. Sect. 50. Removal of adjacent soil. Question o£ title should be raised in action on the judgment. effected by him on the faith of the leases being valid (the amount to be ascertained by an inquiry in chambers), and that the residue of the compensation money (which was in Court) should be returned to the company. In Horrocks v. Metropolitan Bailway Company (/.;) a man claimed damages in respect of his premises having been injuriously affected by the removal by the company of the adjacent soil. In answer to questions put to them, the jury found that if there had been no building the ground would not have sunk, upon which the sheriff directed them as a matter of law that the claimant had not sustained any legal damage. In consequence of this direction the jury found that the claimant's property had not been injuriously affected. The Court quashed the inquisition. Wightman, J., iu the course of his judgment said: "In the present case the right of the claimant to the lateral support of the adjoining soil was submitted by the assessor to the jury, and was determined by them in the negative. Upon the authority of llccj. v. London and North- western Railivay Company {I), before referred to, we think that this was not the course which should have been pursued. It is plainly open to all the objections referred to in the judgment of the Court in that case. It is manifest that if the finding of the jury be allowed to stand, the claimant's right is concluded without appeal ; whereas if the function of the jury on such an inquiry be restrained to the consideration of the damage in point of fact, the legal right of the claimant is not concluded by the finding, but the company may, as was recently decided by the Court of Exchequer in Read v. Victoria Station and Pindico Railivay Company (ni), by proper pleading, raise the question of title for determination in the action on the judgment." Even where the special Act contains a provision that the verdict of the jury shall be binding and conclusive, the promoters are nevertheless entitled to raise the question of the claimant's title in subsequent proceedings (;t). The jury, however, may decline to award any damages (o). (/>.•) (1863), 32 L. J. Q. B. 367 ; 4 B. & S. 315 ; 8 L. T. 663 ; 11 W. R. 910; 10 Jur. N. S. 20-4. (/) Sii]>r(i. (;n) (1863), 32 L. J. Ex. 167 ; 1 H. & C. 826; 11 W. E. 1032; 9 Jur. N. S. 1061. See also Cliaimrun v. Momnoutlishire Ilailwdy Co7n])a)i7j (1858), 27 L. J. Ex. 97 ; 2 II. &- N. 267 ; IhauiUm v. Brandon (1865), 2 Dr. & Sm. 305; 34 L. J. Ch. 333 ; 13 W. R. 251 ; 11 Jur. N. S. 30; Campbell v. Curpuratiun of Liverpool (1870), L. R. 9 Eq. 579; 21 L. T. 814 ; 18 W. R. 422 ; Chabot v. Lord Morpeth (1850), 15 Q. B. 446 ; 19 L. J. Q. B. 377 ; 12 Jur. 1023._ {it) Barber \. No(tiv(/ham and Grantham Eailiraij Company (1864), 15 C. B. N. S. 726 ; 33 L. J. C. P. 193 ; 9 L. T. 829 ; 12 W. R. 376. (o) Iter/. V. Lancaster and Preston Bailu'ai/ Compainj (1845), 6 Q. B. 759; 14 L. J.Q. B. 84; 3 R. C. 725. Tlie Lands Chiiiscs Coiisolidation Act, 1845. 125 The jury caunot order work to be done on the claimant's Sect. 50. premises as part of the compensation (j)) ; nor can they determine jury cannot whether the promoters are excused from the obhgation to pay order work to be done on compensation by any collateral matter, such as whether an agree- claimant's ment between the promoters and the claimant has been broken, or 1'"^"^^' i^ortake ^ ' into con- whether the breach of such agreement was the cause of the land sideration any •L ■ ... ■■ ir i. 1 / \ collateral bemg injuriously aiiected {q). matter. Where the jury included a sum to cover the expense of building a bridge to connect two portions of the claimant's land which had been damaged by severance, the Court set aside the verdict (r). ARTICLE 3. — The recording of the verdict and judgment is not a Recording of condition precedent to its validity. iud'^ment' not This was the decision of Lord Campbell, C.J., in Chahot v. condition precedent to Murpeth {s). Lord Campbell was of opinion that the sheriff Avas validity. functus ojficio after he had given judgment. In Manninfi v. Eastern Counties llaihcay Company {t), a case Tarol arising under a local Act with a proviso similar to that contained verdict in sect. 50, the verdict of the jury had not been recorded, and it ^idmitted. was held that parol evidence might be given of their finding. Parke, B., said : "I thought it was not essential that the verdict should be recorded; but iliai prima facie it must be taken to have been recorded, and that it was not to be proved unless the contrary was shown. It was shown that it never had been recorded, and therefore I admitted parol evidence of the verdict." ARTICLE 4. — A jury has no power to add interest to a claim by a J"i'y lifis no landowner, where the fact that such claim has not been settled is not a^^rd due to any act or omission on the part of the promoters. interest. So held by the House of Lords in Caledonian llailwaii Company V. Carmichael (u), in which case it was held that interest can be demanded only by virtue of a contract, or where the principal money has been wrongfully withheld. ARTICLE 5. — Where the jury have awarded compensation for a Where jury claim over which they had no jui-isdiction the Court will grant a |urisdictioT certiorari to quash the proceedings. —certiorari So held in In re Penny and the SoutJt-Eastern Railway Com- pany {x), where the question raised was whether a jury could award (p) rit(j. V. South Holland Drainage Committee (1838), 8 A. & E. 429; 1 P. & D. 79. {q) In re Byles and the Ipswich Dock Commissioners (1855), 11 Ex. 46-1 ; 25 L. J. Ex. 53. (r) Re(j. V. Soidh Wales Railway Company (18-49), 13 Q. B. 988 ; 18 L. J. Q. B. 310; 6 E. C. 197 ; 13 Jm-. 1095. (s) (1850), 15 Q. B. 446; 19 L. J. U. B. 377; 12 Jur. 1023. {t) (1844), 13 L. J. Ex. 265 ; 12 M. & W. 237 ; 3 R. C. 637. (u) (1870), L. R. 2 H. L. (So.) oQ. (x) (1857), 7 E. & B. 660; 26 L. J. Q. B. 225 ; 5 W. E. 193; 3 Jur. N. S. 126 Code of the Law of Compenmtion. Sect. 50. Excess of jurisdiction may be proved by affidavit. In an action upon a judgment qnantwn of damage cannot be investigated. compensation for an annoyance caused by persons standing on the bank of a railway and overlooking the claimant's premises. The jm'y awarded compensation under this head, and the Court were of opinion that in so doing they had exceeded their jurisdiction, and they granted a certiorari, notwithstanding the provisions of sect. 145 (//). liOrd Campbell, C.J., said: "It is impossible to maintain that although the certiorari is taken away, if it is made out by affidavit that there has been a clear excess of jurisdiction on the part of the under-sheriff, the certiorari ought not to go. If the under-sheriff directed the jury to include in their verdict compensation for that for which the claimant has no right to com- pensation, and if it is made out to the satisfaction of the Court that in all probability the jury have done so, the certiorari ought to go." Wightman, J., said: "It is said that unless the excess of jurisdiction appears on the face of the proceedings the Court has no power to interfere. But there are abundant authorities to show that though the excess of jurisdiction does not appear on the face of the proceedings it may be shown on affidavit." In Reg. v. Slieirard (z) Bramwell, L.J., doubted whether the High Court had jurisdiction to quash an inquisition which is good upon the face of it. Certiorari will not be granted where the proceedings are only irregular in form (a). No objection on the ground of excess of jurisdiction can be taken in an action on the judgment of the sheriff. In Mortimer v. SotitJi Wales Eailwaii Conipani/ {]>}, Lord Campbell, C.J., said : " If there has been an excess of jurisdiction in the inquiry before the sheriff, that is a ground upon which a certiorari will be allowed. It is now said, as I understand, that a claim was made in respect of something which was not matter in respect of which a jury had power to award compensation ; but in an action upon a judgment it niKstJje taken that there was jurisdiction, and the quantum cannot he inrestig((ted, for if that could be done the plaintiff would have to go down to trial prepared to prove each part of his claim, and such a course would be most inconvenient. There was jurisdiction 957. See also Cmrpir Essex v. Alton Local Board (1889), 14 A. C. 15;3 ; jS L. J. a. B. 594 ; Gl I.. T. 1 ; 38 W. E. 209; Re'fropolitan Board <,f Works (1866), L. E. 1 Q. B. 337 ; 7 B. & S. 177 ; 35 L. J. Q. B. 101 ; 13 L. T. 702 ; 14 W. E. 370 ; 12 Jur. N. S. 183 ; ante, p. 97. (a) (1871), 24 L. T. 435; 19 W. E. 720. (6) (1883), 11 Q. B. D. 345 ; 52 L. J. Q. B. 348; 48 L. T. 505; 31 W. E. 555. See also Sharpe v. Metropolitan District Railway Company (1879), 4 Q. B. D. 645 ; 5 A. C. 425 ; 50 L. J. Q. B. 14 ; 43 L. T. 617 ; 29 W. E. 617 ; 44 J. P. 716; ante, pp. 99, 100, 101. (c) Sujira. 9—2 costs. nor jury should know amount 132 Code of the Law of Compensation. Sect, 51. land said to be injuriously affected, the person who puts the machinery of the Act in motion may fail in establishing his claim, and so it may be quite right that he should not have the costs of the inquiry." In the same case Brett, M.R., said: " The railwa}' company must pay the costs of the arbitration at all events, and the plaintiff when he gets such costs is entitled to keep them whether his title to the land turn out to be good or not." Neither ARTICLE 4. — Neither arbitrators nor jury are entitled to know arbitrators ^^^ amount offered by the promoters. In Gould V. Stafordsliire Waterworks Company (d) Parke, B., said offered. that the arbitrators have no power to take evidence as to the amount previously tendered, and cannot determine the costs of the award. Sect. 51 does ARTICLE 5. — Section 51 does not apply to an inquiry under not apply to ^ 94 inquiry under sect. 94. jjj fj^j^jj ^^ Mid-Wales Railicaij Company {c) Cockburn, C.J., said: "The machinery of sect. 51 as to costs is not applicable, and therefore the present case as to costs is a casus omissus ; and it is not competent to us to supply the omission." Therefore in proceedings under sect. 94 both parties pay their own costs. Sect. 52. 52. The costs of any such inquiry shall, in case of Particulars of difference, be settled by one of the masters of the Court of the costs. Queen's Bench of England or Ireland, according as the lands are situate, on the application of either party, and such costs shall include all reasonable costs, charges, and expenses incurred in summoning, impannelling, and return- ing the jury, taking the inquiry, the attendance of wit- nesses, the employment of counsel and attorneys, recording the verdict and judgment thereon, and otherwise incident to such inquiry. Taxation of By the Lands Clauses (Taxation of Costs) Act, 1895 (/), either compensation V^^'^J ^^J ^Ppl}' ^^ have costs taxed, whether the compensation assessed by i^as been determined by a jury or by arbitration, jury or j j j j arbitration. ARTICLE 1. —Where the claimant recovers the same amount or Where less than promoters have previously offered, the promoters are not recovers entitled to recover from him any portion of their costs of counsel, amount attorneys, or witnesses, offered or less. Only formal !^o held in Bray v. South-Eastern Railway Company {g), where costs to be divided. (r/) (1850), 19 L. J. Ex. 281 ; 5 Ex. 214; 6 E. C. 658; 1 B. C. C. 264 ; 14 Jur. 528. (^) (1866), L. E. 1 Q. 13. 342; 35 L. J. Q. B. 117 ; 14 W. E. 775; 12 Jur. N. S. 228. (/) Post, (fl) (1849), 19 L. J. Q. B. 11 ; 7 D. & L. 307. TJie Lands Clauses Consolidation Act, 1845. 133 it was held that only the formal costs of the proceedings are to be Sect. 52. divided between the parties, and that each party is to bear his own costs other than those. It was held in Req. v. Sheriff of Warwickshire (h) that a clause '■ Costs of ^ .1/ ^ ^ summoning in a local Act giving the claimant "the costs ot summonmg such jury and jury and the expenses of witnesses" did not entitle the claimant to ^"^jinegg^^^L. costs of the attorney's letters and attendances, nor the expenses of meaning of. plans, &c., paid to surveyors not called as witnesses. ARTICLE 2. — Where the proceedings are quashed and a fresh Where two inquiry held on the same warrant before the sheriff, and compensation h" i<'i\Te\and. is awarded to the landowner, the latter is entitled to the costs of the owner, if first inquiry as well as to the costs of the second. entitled to .-■-.. -r> -.T 7 T- 7 Tl •; /-T /•\ COStSOfbOth. This was decided m licrj.Y. North Loiidon liaUicay Compamj [i), where the proceedings w'ere set aside because the sheriff took a wrong view of the law. Hawkins, J., said: " The object of the Legislature was, I think, to indemnify a claimant against all costs incurred in substantiating his claim. [His Lordship then dealt with sects. S-i, 51 and 52, and proceeded :} Now I think that these costs which the claimants seek to have taxed are incident to the inquiry which was founded on the warrant issued to the sheriff, and was brought to a formal and definite conclusion. It could never have been contemplated by the Legislature that a claimant should pay the costs of an inquiry rendered abortive by an untenable objection. I therefore think that the whole of these proceedings should be taken as one inquiry." ARTICLE 3. — The Court has no power to review the decision of Court cannot a master on a question of taxation of costs under sect. 52. taxatTon of So held in Owen v. London and North-Western liailway Com- panij{k). Cockburu, C.J., said: "Where the Legislature thinks proper to give the power of taxation, and imposes the duty of taxa- tion, not on the Court, but simply on one of the officers of the Court, without in any way rendering it necessary that the Court should interfere, it seems to me a case in which we have not any authority over the master. I agree with what Erie, J., said in the (/O (1841j, 2 E. C. 661 ; following Bex v. Gardner (1837), 6 A. & E. 112. See also Fux v. Yorl- J J. (1834), 1 A. & E. 828. (t) (1881), 51 L. J. Q. B. 241 ; 30 W. E. 272. {k) (1867), L. E. 3 Q. B. 54 ; 37 L. J. Q. B. 35; 17 L. T. 210 ; 16 W. E. 125 ; 7 B. & S. 758 ; following lioss v. York, Neiucastle and JJenrick liaihrai/ Cimpanij (1849), 18 L. J. Q. B. 199; 5 E. C. 516; 5 D. & L. 695; and Tcnnant v. BaroiKjli of Belfast (1847), 11 Ir. L. E. 290 ; and disapproving, on this point. Metropolitan Raihrai/ Company v. Tamhani (1863), 32 L. J. M. C. 249 ; 14 C. B. N. S. 212 ; 8 L. T. 280 ; 11 W. E. 695. See also In re Sheffield Waterworks Ad (1865), L. E. 1 Ex. 54 ; 4 H. & C. 74; 35 L. J. Ex. 60; 13 L. T. 440 ; 14 W. E. 143. costs. 134 Code of the Law of Compensation. Sect. 52. Bail Court (/), that the office performed by the master has reference to the causes in the Court, and is part of the necessary and inci- dental proceedings in the Court, and that, therefore, the Court had jurisdiction over it. That does not apply to the case now before us, in which the authority is derived, not from the Court itself, but from the act of the Legislature in giving the power to the master and imposing the duty on him." This case was followed and approved by the Court of Appeal in In re Sandhack Charitij Trustees v. North Staffordshire Ixailicaij Comjjany (m). Kefustilof But where a master has refused to tax a mandamus may be ^W^g'-a^ted by tbe Court („,. Sect. 53. 53. If any such costs shall be payable by the promoters ^ 7 r of the imdertakino; and if within seven days after demand Payment of , '^' • i i • i costs. such costs be not paid to the party entitled to receive the same, they shall be recoveraljle by distress, and on applica- tion to any justice he shall issue his warrant accordingly : and if any such costs shall be payable by the owner of the lands or of any interest therein, the same may be deducted and retained by the promoters of the undertaking, out of any money awarded by the jury to such owner, or deter- mined by the valuation of a surveyor under the provision herein-after contained ; and tlie payment or deposit of the remainder, if any, of such money shall be deemed payment and satisfaction of the whole thereof, or if such costs shall exceed the amount of the money so awarded or deter- mined, the excess shall be recoverable by distress, and on application to any justice he shall issue his warrant accordingly. Duty of ARTICLE 1. — In an application for a distress warrant under justice purely ggct. 53 the magistrate or iustice has merely a ministerial duty to ministerial. ^i, •-,„ ,., periorm ; he has no power to question the allocatui' 01 the master. So held in MetropoUtan Iladwai/ Company v. Turnham{o). The Court has no power to review a taxation by the master, unless the latter refuses to tax, or exercises his jurisdiction wrongfully {p). (l) Hoss V. York, &c., Railway Covipavij, supra. (?n) (1877), 3 Q. B. D. 1 ; 47L. J. Q. B. 10 ; 37 L. T. 391 ; 2() W. E. 229. (//) A'wy. V. Manlnj-I^rmth (18S3), 12 Q. B. D. 481 ; 53 L. J. 0. B. 115 ; 32 W. R. 275; R>-ry such question shall ]jte so tried, provided that notice of such to be sum- desire, if coming from the other party, be given to the |^JJ"est^of promoters of the undertaking before they have issued their cither party, warrant to the sheriff^ ; and for that purpose the promoters of the undertaking shall l)y their warrant to the sheriff require him to nominate a special jury for such trial ; and thereupon the sheriff shall, as soon as conveniently may be after the receipt by him of such warrant, summon both the parties to appear before him, by themselves or their attorneys, at some convenient time and place appointed by him for the purpose of nominating a special jury (not being less than five nor more than eight days from the service of such summons) ; and at the place and time so appointed the sheriff shall proceed to nominate and strike a special jur}% in the manner in which such juries shall be required by the laws for the time being in force to be nominated or struck by the proper officers of the Superior Courts, and the sheriff sliall appoint a day, not later than the eighth day after striking of such jury, for the parties or their agents to appear before him to reduce the number of such jury, and thereof shall give four days notice to the parties ; and on the day so appointed the sheritf shall pro- ceed to reduce the said special jury to the number of twenty (7) (1880), 5 A. C. 425 ; 4 Q. B. D. 645 ; 50 L. J. Q. B. 14 ; 4.3 L. T. 617 ; 29 W. E. 617 ; 44 J. P. 716. See also South- Eusf em Railway Compauij v. Richardson (1852), 21 L. J. C. P. 122 ; 15 C. B. 810; 16 Jur. 151 136 Code of the Law of Compensation. Sect. 54. Second notice by claimant demanding sjjecial jury does not extend the twenty-one days fixed by sect. 68 for issuing warrant to sheriff. Omission to strike special jury in time to allow three days for summoning them. Sect. 55. Deficiency of special jurymen. Sect. 56. Other in- quiries before in the manner used and accustomed by the proper officers of the Superior Courts. ARTICLE 1. — If the claimant, after giving notice desiring Ms claim to be settled by a jui-y, give a second notice to the promoters expressing his desire for a special jury, the time (twenty-one days) fixed by sect. 68 within which the promoters are to issue their warrant to the sheriff" is not thereby extended. This was decided in Gbjn v. Aberdare Railway Company (r), where Cockburn, C.J., said : " The twenty-one days are to be computed from the time of giving the first notice under sect. 68, the language of that section being clear and precise as to that, and nothing being found in sect. 54, which applies to special juries, to vary it. Some inconvenience, no doubt, may result from this construction, but the language of sect. 68 is free from all ambiguity." ARTICLE 2. — The proceedings before the sheriff" are not rendered void by an omission to strike the special jury in sufficient time to allow three days before the day of taking the inquisition for summoning them. In Ex parte Great Western Ilaihcay Company (s) Lord Camp- bell, C.J., said it was at most an irregularity. 55, The special jury on such inquiry shall consist of twelve of the said twenty who shall first appear on the names being called over, the parties having their lawful challenges against any of the said jurymen; and if a full jury do not appear, or if after such challenges a full jury do not remain, then, upon the application of either party, the sheriff shall add to the list of such jury the names of any other disinterested persons qualified to act as special or common jurymen, who shall not have been previously struck off the aforesaid list, and who may then be attending the Court, or can speedily be procured, so as to complete such juiy, all parties having their lawful challenges against such persons ; and the sherift" shall proceed to the trial and adjudication of the matters in question by such jury, and such trial shall be attended in all respects with the like incidents and consequences, and the like penalties shall be applicable, as hereinljefore ])rovided in the case of a trial by common jury. 56. Any other inquiry than that for the trial of which such speciul jury may have been struck and reduced as (r) (1859), 28 L. J. C. P. 271 ; 6 C. B. N. S. 359; 5 Jur. N. S. 1041. (s) (1851), 18 L. T. 0. S. 92. The Lands Clauses Consolidation Act, 1845. 137 aforesaid may be tried by such jury, provided the parties Sect. 56. thereto respectively shall give their consent to such trial. same special jury by 57. No juryman shall, without his consent, be summoned ''''"s'eTt 57. or required to attend any such proceeding as aforesaid more , ^ . Jurymen not than once m any year. to attend more than , • -, n once a year. 58. The purchase-money or compensation to be paid lor g^^^ gg any lands to be purchased or taken by the promoters of the — n 1 • c J 11 r 1-.^ ^ Compensation undertaking from any party who, by reason ol absence t„ absent from the kingdom, is prevented from treating, or who parties to be cannot after diligent inquiry be found, or who shall not a'sm-^eTOr ^ appear at the time appointed for the inquiry before the JJ3^°'^gf4s^ jury as herein-before provided for, after due notice thereof, and the compensation to be paid for any permanent injury to such lands, shall be such as shall be determined by the valuation of such able practical surveyor as two justices shall nominate for that purpose as herein-after mentioned. ARTICLE 1.— Where there is a doubt as to the true ownership AMiere doubt of land taken by the promoters, the value of the land should not t^JlJj'compen- be determined by a surveyor appointed under sects. 58 and 59, but sation must by the verdict of a jury or an award under sect. 23. under sect. 23. So held by James, V.-C, in Ex jiarte London and South- Western liaihcay Company {t). 59. Upon application by the promoters of the under- Sect. 59. taking to two justices, and upon such proof as shall be Twoj^ces satisfactory to them that any such party is, by reason of to nominate a absence from the kingdom, prevented from treating, or ^^"^^^°^- cannot after diligent inquiry be found, or that any such party failed to appear on such inquiry before a jury as aforesaid, after due notice to him for that purpose, such justices shal], by writing under their hands, nominate an able practical surveyor for determining such compensation as aforesaid, and such surveyor shall determine the same accordingly, and shall annex to his valuation a declaration in writing subscribed by him of the correctness thereof. ARTICLE 1. — The instrument by which a surveyor is appointed Appointment need not specify the lands to be valued. specify lands This was decided in Poynder v. Great Xurtliern Pudlicay Company (u). {t) (1859), 38 L. J. Ch. .527. (w) (1847), 16 Sim. 3 ; 16 L. J. Ch. 444 ; 5 E. C. 200 ; 2 Ph. 330. 10 be valued. 138 Code of the Law of Compensation. Sect. 59. Surveyor in employment of promoters. Surveyor must inspect internally as well as externally. Sect. 60. Declaiationto be made by the surveyor. ARTICLE 2. — If a surveyor has been in the employment of the promoters he should not be appointed, but if he is appointed this fact alone is not sufficient to invalidate the proceedings. So held in Lcuigham \. Great Kortlicrn llailway Comj)any{x), a case arising under sect. 85. Knight Bruce, V.-C, said he did not like the api^ointraent of the surveyor to the company, but he tliought he could not judicially interfere on that account. ARTICLE 3. — The valuation by the surveyor must not be made on a mere inspection of the exterior of the premises. He must examine the interior also {y). 60. Before such surveyor shall enter upon the duty of making such valuation as aforesaid be shall, in the presence of such justices, or one of them, make and subscribe the declaration following at the foot of such nomination ; (that is to say,) " I A.B. do solemnly and sincerely declare, that I will faithfully, impartially, and honestly, according to the best of my skill and ability, execute the duty of making the valuation liereljy referred to me. A.B. " Made and subscribed in the presence of ." And if any surveyor shall corruptly make such declaration, or having made such declaration shall wilfully act contrary thereto, he shall be guilty of a misdemeanor. Sect. 61. 61. The said nomination and declaration shall be annexed A^aiuation. to the valuatiou to be made by such surveyor, and shall be &:c., to be pro- prescrvcd too;ether therewith by the promoters of the undcr- duced to the i i^ ^^ ■ ^ ^ • i i owner of the taking, and they shall at all tunes produce the said valua- demand ^^^^ ^^^ Other documeuts, on demand, to the owner of the lands comprised in such valuation, and to all other parties interested therein. Sect. 62. Expenses to be borne by promoters. Sect. 63, Purchase- money and compensation, how to be estimated. 62. All the expenses of and incident to every such valuation shall be borne l)y the promoters of the under- taking-. 63. In estimating the purchase-money or compensation to be paid by the promoters of the undertaking in any of the cases aforesaid, regard shall be had l)y the justices, arljitrators, or surveyors, as the case may be, not only to the value of the land to be purchased or taken by the promoters of the undertaking, but also to the damage, if any, to be (cr) (1847), 16 L. J. Ch. 437 ; 1 De G. & Sm. 486 ; 5 R. C. 263. iu) ('titter V. Metro)i(>Utav Ihiilivay Vomiiauii (1864), 10 L. T. 777; 12 W. 1{. 1021 ; 10 Jur. N. S. 1014. The Lauds Clauses Consolidation Act, 1845. 139 sustained l)y the owner of the hinds by reason of the sever- Sect^s. ing of the lands taken from the other hinds of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the Special Act, or any Act incorporated therewith. AETICLE 1. — A landowner's interest is to be valued, rebus sic Landowners stantibus, as it exists at the time of the notice to treat. vaSV!;?;^ So held by Wood, Y.-C, iii PcHmj v. Pcnui/ (z). lu that case *'^ *^««^'^"-^^ a testator died iu 1862, having bequeathed the residue of a term of years under a lease, in a house where he and his two sous carried on business, to his executors, upon trust to allow his sous " to hold, use, occupy, and enjoy" the leasehold premises, " so long as they may carry on the business together therein, as now carried on by me and them in partnership together," they paying a low rent to the executors, and the executors paying the rent reserved by the lease. He also declared that if his sons, or one of them, should at any time decline to carry on the business on the premises, his executors were to sell the same. The executors having been served with a notice to treat, it was held that the valuation of the executors' interest ought to be made as of the interest which, at the moment the premises were taken, they woukl have had if they had not been taken ; and that therefore a deduction must be made from the whole value of the premises in respect of the contingency that the executor might have been compelled by the continuance of the son's occupation to take a depreciated rent. It was also held that the sons were entitled to the present value of the improved rent of the premises, beyond the rent and outgoings payable by them for the residue of the term, during their lives and the life of the survivor, subject to a deduction in respect of the chance that they would have ceased to carry on the business. Wood, Y.-C, said : " As to the value of the interest, it appears to me clear that the plaintiff's interest is not to be treated as having been increased through an act of the Board of Works. One might as well value the interest of the improvements which have taken j)lace in consequence of the houses having been thrown down, and other constructions made, and so on. It is not the interest which has been acquired by the Board that has to be estimated, hut the value of the interest taken from the person with Avhom the Board deals. . . . The scheme of the Act I take to be this : that every man's interest shall be valued, i-ehus sic stantibus, just as it occurs at the very moment when the notice to treat was given. Any difference iu the result which is due to the accident of the (2) (1867), L. E. 5 Eq. 227 ; 37 L. J. Ch. 340; 18 L. T. 13; 16 W. E. 671. 140 Code of the Law of Compensation. Sect. 63. property being taken by a public body is not to be thrown into the compensation fund." Land subject ARTICLE 2.— "Where land subject to restrictions as to its use is to restrictions , , j , ,, . -. , . , , as to use. taken under compulsory powers, the amount of compensation payable to the person interested therein is to be assessed with reference to the value of his interest therein, and not with reference to its value to the persons taking it. In Stchhiiu/ v. Metropolitan Board of Works (a) the plaintiff was rector of three parishes, in the churchyards of which burials were prohibited. The defendants were empowered to take the whole of one and part of the other two churchyards. It was held that the plaintiff was entitled to compensation for the loss that he had sustained by being deprived of his interest in the churchyards, and not according to the value which the land would be to the defendants. Cockburn, C.J., referring to the land in the possession of the plaintiff, said: "It was in his hands practically valueless. When the Metropolitan Board of Works are enabled to acquire it for a public purpose, why should he be benefited ? He can have no claim to have a new value attached to that which was before valueless, merely because the Legislature has said it shall be trans- ferred from one public purpose to another. There is nothing to be found in the Act to support the plaintiff's contention, nor is it founded on reason. It is argued for the plaintiff that, although in his hands the churchyards are valueless, yet when they pass to the defendants, under the compulsory powers of the Act of Parliament, they acquire a value from the fact that they may be applied to secular purposes. I do not think that is the test applicable to the present case. When Parliament gives com- pulsory powers, and provides that compensation shall be made to the person from Avhom property is taken, for the loss that he sustains, it is intended that he shall be compensated to the extent of his loss; and that his loss shall be tested by what was the value of the thing to him, not by what will be its value to the persons acquiring it." Good-will and ARTICLE 3. — In assessing compensation where land or premises loss of profits, are taken an allowance may be made for good-will and loss of profits. In Bidder \. North Staffordsldre llailicaij Compait>/{b) Bram- well, L.J., stated the principle upon which compensation is allowed (a) (1870), L. E. 6 Q. B. 37 ; 40 L. J. Q. B. 1 ; 23 L. T. 530 ; 19 W. E. 73 ; overiTiiing Ililaxit v. Archbishoji of CauUrhiirij (1850), 10 C. B. 327 ; 19 L. J. C. P. 376, in so far as it differs from Stthbhi(j''s Case. See also ('am/>hell v. jMa>/or of Liverpool (1S70), L. E. 9 Eq., 579 ; 21 L. T. 814; 18 "VV. E. 422 ; and In re. (Jitii and South Lo}idon Ihiilwuy Company and St. Mary WoolnotI, (1902), 18 T. L. E. 613. {b) (1879), 4 Q. B. D. 412, 432 ; 48 L. J. Q. B. 248 ; 27 W. E. 540; 40 L. T. 801. The Lands CJausrs Consolidat'mn Act, 1845. 141 for ffood-will. He said : " It is as thou^li a house in a street were Sect. 63. taken, where a man carried on business, and there were other houses in the same street to be had, to which the business could be transferred with no loss of good-will. In such a case no compensation for good-will ought to be given. If the rent was greater that ought to be compensated for ; if the lease was shorter that ought ; and if other circumstances of loss or precariousness, they ought." In White v. Commissioners of Public Works (c) the claimant carried on an old-established business at 11, Parliament Street. His lease in those premises being about to determine, he purchased the lease of No. 10 in the same street, with the intention of trans- ferring his business to No. 10 on the determination of his lease of No. 11. Before the transfer was effected the Commissioners of Public Works gave him notice to treat in respect of No. 10, under their special Act. In assessing the compensation to be paid to him for the compulsory taking of No. 10, the arbitrator admitted evidence of the profits he had been making at No. 11, and awarded him £'1,000 in respect of good-will and loss of profits which would have been made at No. 10, if the premises had not been taken. The Court of Exchequer held that the arbitrator had not exceeded his powers in so doing, and that the award of such compensation was good. Kelly, C.B., after stating the facts, said: "In fact, at the time when he received the notice to treat in respect of No. 10, he had already so far begun to use those premises, as auxiliary to the carrying on of his business, as that the cutting-out and the storing of materials was carried on there. Under these circum- stances, the question is whether he is entitled, under the Act of Parliament, to the compensation awarded to him by the arbitrator in respect of the damage done to him by reason of the compulsory taking of No. 10. The compensation as to his interest in the premises is not in question, but ^61,000 was awarded in respect of what is commonly called good-will or loss of profits, which, we must take it, the arbitrator found would have attached to No. 10 on the transfer of the business from No. 11 to No. 10. I think it is only necessary to state the terms of the proposition clearly to see that it would be a grievous injustice if he were not entitled to compensation. He was actually carrying on the business at No. 11, and no doubt his lease of No. 11 was subject to determina- tion on a six months' notice, but the compensation is not for a ^(c) (1870), 22 L. T. 591. See also Reg. v. Scard (1894), 10 T. L. E. 545 ; 27 W. R. 540 ; Ex parte Cooper, In re North London Railway Company (1865), 34 L. J. Ch. 873 ; 11 L. T. 661 ; 13 W. E. 364; 2 Dr. & Sm. 312; 11 Jur. N. S. 103. 142 Code of tlte Law of Compensation. Sect. 63. Good- will — mortgagee. Compensation for loss of profits forms part of " con- sideration for the sale." Prospective value of land. Prospective value for buildiner. business that would have been carried on there. We must take it that the arbitrator was satisfied, and has found that if No. 10 had not been taken by the Commissioners, he would have removed his business there and carried it on, realising considerable profit annually. I cannot understand on what principle it is contended that he was not entitled to compensation in respect of the loss of those profits." Although in some cases the good-will of trade premises passes to a mortgagee, this does not apply to a case where the good-will depends on the personal skill of the owner {d). Where compensation for loss of profits forms part of the total sum awarded for compensation, it forms part of the consideration for the sale, and on a conveyance ad valorem duty must be paid upon it accordingly, pursuant to the Stamp Act, 1870 (e). ARTICLE 4. — In assessing compensation for severance the fact that land has a prospective value must be taken into consideration. This was decided in Beg. v. Brown (/). In that case, by the construction of a railway, part only of the landowner's land was taken, and several acres were severed from the rest, and all access cut off. The land was agricultural, but it had a prospective value for building. It was held that the land could be valued as building land, and the severed portion as deprived of all access. Cockburu, C.J., said : "A jury, whether the dispute be as to the value of land required to be taken by the company or as to the compen- sation for damages by severance, in assessing the amount to which the landowner is entitled, have to consider the real value of the laud, and may take into account not only the present purpose to which the land is applied, but also any other beneficial purpose to which in the course of events at no remote period it may be applied, just as an owner might do if he were bargaining with a purchaser in the market. That is the mode in which the land would be valued. So in respect of severance : the jury would have to consider how far that prospective value would be depreciated by severance. When, therefore, the jury come to the conclusion that the land will soon bo valuable for building purposes, and that a portion of the land would, by reason of the severance, be rendered useless as building land, they ought to take this depreciation into consideration in assessing the amount of compensation." (d) Cooper v. Metropolitan Board of TIorA-s (1883), 25 Ch. D. 472 ; 53 L. J. Cli. 109 ; 50 L. T. 602 ; 32 W. E. 709. (e) Iiddiid Reveuue Commissioners v. Olasgoiu and So idh- Wester)/ Jiaifway Compatnj (1887), 12 A. C. 315; 5(3 L. J. P.'C. 82 ; 57 L. T. 570; 36 W. R. 241. (/) (1867), L. R. 2 Q. B. 630 ; 36 L. J. Q. B. 322 ; 16 L. T. 827 ; 15 W. R. 988 ; 8 B. & S. 456. J The Lands Clauses Consolidation Act, 1845. 143 This case was approved by the Court of Appeal iu RJtondda and Sect. 63. Stcansea Ixailicay Company v. Talhot i;/). In Ripley v. Great NortJieru Raihcay Compaiiy (h) a railway company took land on wliicli cotton mills would probably Lave been built ; the owner had other laud on which he had built a reservoir, from which the cotton mills were to be supplied with water when built. In assessing compensation, the umpire received evidence as to the profits which might have been derived from supplying water to the mills when built, and awarded compensation for the loss of those prospective profits. It was held that the umpire was right in receiving the evidence and iu awarding compensation. Money expended on land which might have made it more Money valuable if notice to treat had not been given, should not be taken i^^i^j_ into account in assessing compensation (i). Where a seam of coal was not workable at a profit when compeu- Compensatioa for seam of sation was assessed, the House of Lords held that compensation coal likely to might nevertheless be given for it, if it was likely to prove !^i?^*-//°i^;'','.^ profitable in future (k). ARTICLE 5. — In assessing compensation the special adaptability Special of land for a particular purpose must be taken into consideration. a ap a 1 1 y. This point was twice before the Courts : first, in Riddell v. Neiccastle Water Company (/), where the arbitrator had taken into account the peculiar adaptability of land for the purpose of a reservoir, and his award was upheld ; for the second time in Ci lladaaii C(>i)ipani/ (o). ARTICLE 12. — In assessing compensation for the loss of licensed Licensed premises, evidence is admissible that a license exists, and the compen- coalSenJ^ion sation will be increased by the fact that the premises were licensed. for. In Belton v. Lmdon Counti/ Council (p) the plaintiff was entitled to the reversion of licensed premises under a lease of which twenty- six years had still to run, and the London County Council took the house under their compulsory powers for an improvement. It was held that the umpire was entitled and ought to admit evidence to prove the present market value of the plaintiffs' rever- sionary interest in the premises as licensed premises, and that he was not bound to confine the evidence to the estimated rental value of the premises as a house and shop, apart from the question (???) Boq(/ V. MlilUnid liuilwdii ('(iinpuny (LS6T), L. R. 4 Eq. 310; 36 L. J, Ch. 440;i6L. T. 113. (//) Rex V. Lirprpool (Did Manchester Rullii-aii Company (1836), 4 A. & E. 650 ; 6 N. & M. 186 ; 1 H. & W. 689. See also' £".?■ parte Farlow (1831), 2 B. & Ad. 341 ; Ex parte Wright (1831), 2 B. & Ad. 348; In re I'almer and 77,, ,.,,«,./•,. ,.,7^r„„7.,./ /''^„, ^.,,,, ,, ns'iu\ a A ,f- 1? Aa-l Q. B. D. 747 ; 55 L. J. Q. B. 272 ; 52 L. T. 894 ; 34 W. R. 342 ; 49 J. P. 299; post, p. 157. 152 Code of the Law of Compensation. Sect. 63. of whether, when the reversion falls in, they would then be licensed premises. Promoters must take all fixtiires. Eise in value after notice to treat. Compensa- tion — arrears of rent — costs of prior arbitration. Promoters cannot restrict exercise of their powers. ARTICLE 13.— The promoters are bound to pay compensation for fixtures, although the fixtures in question are trade fixtures which a lessee might remove during his term. So held in Gihsoti v. Hammersmith Railway Comjmmjiq). ARTICLE 14. — In assessing compensation payable to the owner of coal mines in respect of his being prevented from working seams of coal, the arbitrator is not entitled to take into consideration, as an element in determining the amount of compensation to be paid, a rise in the value of coal which has occurred between the notice to treat and the making of the award. This was decided by the Court of Appeal, in In re An Arbitra- tion between the Bwllfa and Mcrthyr Dare Steam Collieries (1891), Limited, and the Pontypridd Waterworks Company (r). In that case Vaughau Williams, L.J., said : "If, after the notice to treat has been given, and before the assessment, some inherent value in the land is discovered which was neither expected nor discovered at the time of giving the notice to treat, that circumstance would properly be taken into consideration, because it was, although unknown, a fact existing at the date of the notice to treat which affected the value of the property. But when it is proposed to take into account a contingency which cannot be anticipated and cannot be measured, that is quite a different thing, and I think such a contingency ought not to be taken into consideration at all." ARTICLE 15.— An arbitrator is not entitled in assessing compen- sation payable to an owner of lands to take into account arrears of rent due from lessees or tenants, or costs of a prior abortive arbitration. This was decided in an Irish case (s). ARTICLE 16.— Promoters have no power to enter into an agree- ment to restrict their use of the land taken or the exercise of their compulsory powers. In Ayr Harbour Trustees v. Oswald (t) the promoters entered into such an agreement, for the purpose of reducing the amount of compensation payable to the landowner. The House of Lords held that the agreement was void. Lord Blackburn said : "If they (.,) (1863), 32 L. J. Ch. 337 ; 8 L. T. 43 ; 11 W. E. 299; 2 Dr. & Sm. 603; it Jur. X. S. 221. (;•) ri;)02], 2 K B. 135; 71 L. J. K. B. 613 ; 87 L. T. 291 ; 50 W. E. G27. (s) in re Kilirorth Rifle Runge [1899], 2 Ir. L. E. 305. (0 (1883), 8 A. C. 623. The Lands Clauses Consolidation Act, 1845. 153 could at that time bind themselves b}' a bargain with Mr. Oswald Sect. 63. [the landowner], if he had agreed to it, and that agreement w^ould prevent his land from being injuriously affected, I should be unwilling to hold that he could, by refusing his assent to that agreement, get compensation for the injury which he might have prevented." 64. When the compensation payable in respect of any sect. 64. lands, or any interest therein, shall have been ascertained by where com- tlie valuation of a surveyor, and deposited in the bank pensationto under the provisions herein contained, by reason that the harbeen^de^ owner of or party entitled to convey such lands or such tennmedbya interest therein as aforesaid could not be found or was party"'may absent from the kiuoxlom, if such owner or partv shall be ii-Y® -^^l® f^x™® T • n ^ -1 1 1- • ini t n ^' f i- submitted to clissatisned with such valuation it shall be lawiul lor him, arbitration, before he shall have applied to the Court of Chancery for jjayment or investment of the moneys so de2:)osited under the provisions herein contained by notice in writing to the promoters of the undertaking, to require tlie question of such compensation to be submitted to arbitration, and there- u[)on the same shall be so submitted accordingly, in the same manner as in other cases of disputed compensation hereinbefore autliorised or required to be submitted to arbitration. 65. The question to be submitted to the arbitrators in sect. 65, the case last aforesaid shall be, whether the said sum Quest^ontobe so deposited as aforesaid by the promoters of the under- submitted to taking was a sufiicient sum, or whether any and what further JratoS^' sum ought to be paid or deposited by them. 66. If the arbitrators shall award that a further sum Sect. 66. ought to be paid or deposited by the promoters of the if further sum undertaking, they shall pay or deposit, as the case may awarded, pro- require, such further sum within fourteen days after the ™"deposit^^^ making of such award, or in default thereof the same may same within be enforced by attachment, or recovered with costs by action or suit in any of the Superior Courts. 67. If the arbitrators shall determine that the sum so sect. 67. deposited was sufficient, the costs of and incident to such costs"of~the arbitration, to be determined by the arbitrators, shall be in arbitration, the discretion of the arljitrators, but if the arbitrators shall determine that a further sum ought to be paid or deposited by the promoters of the undertaking, all the costs of and 154 Code of the Law of Compensation. Sect. 67. incident to tlie arbitration shall be borne by the promoters of the undertakinor. Sect. 68. 68. If any party shall be entitled to any compensation To biTsettieii ill respcct of any lands, or of any interest therein, which by ari.itiation shall liavc been taken for or injuriously afiected by the option of the cxecution of the works, and for which the promoters of the party claim- undertakiuo; shall not have made satisfaction under the ingconipensa- . . ° „ , . i c< • i a a • tion. provisions 01 this or the fepecial Act, or any Act incor- porated therewith, and if the compensation claimed in such case shall exceed the sum of fifty pounds, such party may have the same settled either by arbitration or by the verdict of a, jury, as he shall think lit ; and if such party desire to have the same settled by arbitration, it shall be lawful for him to give notice in writing to the promoters of the undertaking of such his desire, stating in such notice the nature of the interest in such lands in respect of which he claims compensation, and the amount of the compensation so claimed therein ; and unless the promoters of the under- taking be willing to pay the amount of compensation so claimed, and shall enter into a written agreement for that purj)ose within twenty-one days after the receipt of any such notice from any party so entitled, the same shall be settled by arbitration m the manner herein provided ; or if the party so entitled as aforesaid desire to have such question of compensation settled by jury, it shall be lawful lor him to give notice in writing of such his desire to the promoters of the undertaking, stating such particulars as aforesaid, and unless the promoters of the undertaking be willing to pay the amount of compensation so claimed, and enter into a written agreement for that })urpose, they shall, within twenty-one days after the receipt of such notice, issue their warrant to the sheriff to summon a juiy for settling the same in the manner herein provided, and in default thereof the}" >hall be liable to pay to the party so entitled as aforesaid the amount of compensation so claimed, and the same may be recovered by him, with costs, by action in any of the Superior Courts. ARTICLE 1.— Where the whole of the Lands Clauses Consolidation Act, 1845, is incorporated in the special Act, no other provision beyond sect. 68 is required, to confer the right to compensation for lands injuriously affected by the works authorised by the special Act. By the Chelsea Improvement Act, 1845, sect. 83, " so much of the Lands Clauses Consolidation Act, 1845, as is applicable, and is If Lands Clauses (Con- solidation Act is incorpo- rated in special Act, no other provi- sion beyond sect. G8 is The Lands Clauses Consolidation Act, 1845. 155 not modified or is not inconsistent with the provisions hereof, shall Sect. 68. appl}' to the improvements authorised by this Act to be made, and required to shall be read as formincr part of this Act." By sect. 104 the S'^^ right lo " '■ . compeusa- commissioners were authorised to alter the level of streets, nothing tion. being said about compensation. Sections 124 and 127 provided for the removal from houses of projections into the street, with a proviso for compensation to owners. The commissioners, by raising the level of a street under sect. 104, impeded access to a house. It was held that the lessee of the house was entitled to compensation under sect. 68 of the Lands Clauses Consolidation Act, 1845, and that the fact that compensation being expressly given in cases under sects. 124 and 127 of the special Act was not inconsistent with the intention that it should be given in cases within sect. 104, by virtue of the general enactment in sect. 68 of the Lands Clauses Consolidation Act, 1845 («)• ARTICLE 2. — Where the special Act excludes the operation of Exclusion of those provisions of the Lands Clauses Act, 1845, which relate to " the gpe^iaf let purchase and taking of lands otherwise than by agreement," sect. 68 is excluded. It was held in Ffrrar v. Commissioners of Sewers (x), that the provisions of the Lands Clauses Act, 1845, which relate to "the purchase and taking of lands otherwise than by agreement," are sects. 16 — 68, those words being the descriptive heading of sects. 16 — 68 ; and that, therefore, as the provisions relating to the purchase and taking of lands otherwise than by agreement were excluded, sects. 16 — 68 were all excluded from incorporation in the special Act. ARTICLE 3. — Where the promoters have complied with the pro- Entry by visions of sect. 85, and entered upon the land within the prescribed proinoters ' '^ -^ under sect. 80 period for exercising their compulsory powers, the landowner must —landowner initiate proceedings for settling compensation, and an action for l^^oceedin^s^ ejectment will not lie against the promoters. forsettlinl So held in Doc d. Armitstead v. Xoitli Stajjurdshire Railicaij Company (y). («) 7.V.V V. St. Luke's, Chelsea (1871), L. E. 7 Q. B. 148 ; 41 L. J. Q.B. 81 : 25 L. T. 914; 20 W. R. 209. See also Brouflbent v. Imperial Gaslif/ht Compuiii/ (1857), 26 L. ,T. Ch. 276; (afterwards in the House of Lords) 7 H. L. C. 600 ; 29 L. J. Ch. 377 ; 5 W. R. 272 ; 5 Jur. N. S. 1319. (.r) (1869), L. R. 4 Ex. 227 ; 38 L. J. Ex. 102; 21 L. T. 295 ; 17 W. E. 709; aute, p. 16. See also Befj. v. Maijor 0/ Loudon (1867), L. R. 2 Q. B. 292; 16 L. T. 280; Bi/ v. Mefro}>olltan Board of Works (1864), 33 L. J. Ch. 377 ; 10 L. T. 66 ; 12 W. E, 691 ; 10 Jur. N. S. 333. {b) (1874), L. E. 7 H. L. 243; 43 L. J. C. P. 385 ; 31 L. T. 182 ; 23 W. E. 115. See also Qillard v. Cheshire Lines Committee (1884), 32 W. E. 943. The Lands Clauses Consolidation Act, 1845. 157 the various cases upon this subject was this, that where by Sect. 68. the construction of works there is a jDhysical interference with any right, pubhc or private, which the owners or occupiers of property are by law entitled to make use of, in connection with such property, and which gives an additional market value to such property, apart from the uses to which any particular owner or occupier might put it, there is a title to compensation, if, by reason of such interference, the property, as a property, is lessened in value." In Beckett v. Midland Railicaij Comr)any{c), the plaintiff was Obstructing -, o ^ f ■ ' 1 1- T • 1 mi -1 access of light possessed 01 a house trontmg on a pubhc highway, i he railway and air. company, under the powers conferred upon them by their special Act, erected an embankment on a portion of the highway opposite to the plaintiff's house, thereby narrowing the road from fifty to thirty-three feet, and thus, according to the evidence, materially diminishing the value of the house for selling or letting, and obstructing the access of light and air to it. It was held that this was such a permanent injury to the property of the plaintiff as to entitle him to compensation. This case was approved by the House of Lords in Metrojwlitan Board of Works v. McCarthy (d). In Mayor of Birkenhead v. London and North-Western Railicay Access to Company (e), the defendants, in exercise of their statutory powers, ^ ^' constructed an embankment over the sewers of the plaintiffs, which, though it made it less easy, did not prevent the plaintiffs getting access to the sewer in order to repair it. The plaintiffs incurred extra expense in repairing the sewer by reason of the works of the defendants, and claimed compensation under the Lands Clauses Consolidation Act for injuriously affecting the plaintiffs' interest in the sewer. It was held by the Court of Appeal that as a right of access to the sewer had not been expressly given by the local Act, but had to be implied, the right of access which ought to be implied was not an}' particular mode of access, but such only as was reasonably necessary for enabling the repair of the sewer to be done, and as that had not been prevented by the defendants' embankment, but only rendered less easy and convenient, the plaintiffs had no right to compensation. In Wadhani v. North-Eastern Railway Company (/) a railway Access to (c) (1867), L. E. 3 C. P. 82 ; 37 L. J. C. P. Ill ; 17 L. T. 499 ; 16 W. E. 221 ; 12 Jur. N. S. 231. See also Iveson v. Moore (1697), 1 Ld. Ea^-iuond, 486 ; 1 Salk. 15; Dobson v. Blarhnore (1846), 9 Q. B. 991 ; 16 L. J. Qi. B. 233 ; 11 Jut. 556 ; Wilkesx. Hunyerford Market Corrqjany (1835), 2 Bing. N. C. 281. ((/) Supra. (e) (1885), 15 Q. B. D. 572 ; bb L. J. Q. B. 48 ; 50 J. P. 84. (/) (1884), 14 Q. B. D. 747 ; 16 Q. B. D. 227; bb L. J. Q. B. 272 ; 54 L. J. Q. B. 344 ; 51 L. T. 684 ; 52 L. T. 894 ; 33 W. E. 215 ; 34 W. E. 342 ; 49 J. P. 299. 158 Code of the Law of Compensation. Sect. 68. Compensa- tion for injury done in execution of the works. Interference with quasi- easement. Loss of trade no cause for compensa- tion. company, acting under their statutory powers, stopped up a street ill which were a house and premises used as an hotel, wherehy the vahie of the premises for selHng, letting, or using as an hotel and public-house was diminished. It was held that the owner was entitled to compensation for the depreciation in the value of the premises as an hotel and public-house. In Ford v. Metropolitan, dx., Raihcaij Cumpany {g), it was held that compensation may be obtained for injury done to land by the execution of the works, if it is sufficient to lessen the value thereof. The facts in this case were peculiar. A house was divided into a front and a back block, and the plaintifis were lessees of three rooms on the first floor in the back block. The lessee did not expressly grant any mode of access, but access to the plaintifis' rooms was gained from the street by passing through a hall or vestibule, and then up some stairs. The defendants, in the exercise of their compulsory powers, took down the front block of the house, and removed the hall. This interference with the hall and the injury to the access to the plaintifis' rooms lessened their value. It was held that the access through the hall was not a way of necessity, but was in the nature of a continuous and apparent easement which passed under the demise of the rooms, and that an interference with this quasi-easement was sufficient to give rise to a valid claim for compensation. In RicJcet v. Metropolitan Railway Company {h) the House of Lords, after considering all the previous cases, decided that, in order to recover compensation, damage must be done to the land itself. A mere temporary obstruction occasioned by the per- formance of some lawful and necessary work is not a ground for compensation, although it may cause a loss of trade to an individual. In this case the company, in the exercise of their statutory powers, obstructed streets leading to a footway, and thereby making access to the ])laintifi"s public-house inconvenient. The obstruction was not permanent, and after some time the streets were restored to their original condition. It was found by the jury that there had been no structural damage to the premises, but that the plaintiff had sustained damage in respect of the interruption to his business. It was held that the plaiutifi" was not entitled to receive compen- sation for injury to his trade consequent upon these obstructions. Lord Cranwortli said : " Both principle and authority seem to me to show that no case comes within the purview of the statute, (7) (1886). 17 Q. B. D. 12; 55 L. J. Q. B. 29G ; 54 L. T. 718; 34 W. R. 426 ; 1 C. & E. 593 ; 50 J. P. 661. (h) (1867). L. E. 2 U. L. 175 ; 36 L. J. Q B. 205 ; 34 L. J. Q. B. 257 ; 16 I.. T. 542 ; 15 W R. 937. T]ie Lands Clauses Consolidation Act, 18-45. 169 unless Avbere some damage has been occasioned to tJw land itself, in respect of which, but for the statute, the complaining party mif^ht have maintained an action. The injuv}^ must be actual injury to tlie land itsdf, as by loosening the foundations of buildings on it, obstructing its light or its drains, making it inaccessible by lowering or raising the ground immediately in front of it, or by some such physical deterioration. Any other construction of the clause would open the door to claims of so wide and indefinite a character as could not have been in the contemplation of the Legislature." This case was followed in Reg. v. Metropolitan Board of Works (?). In that case an occupier of premises near the Thames had been used to draw water from the river, and to bring barges to a draw- dock. He was obstructed in the enjoyment of these rights by the works of the Embankment. It was held that as the rights wdiich he enjoyed were not attached to the premises he could not obtain compensation. In Chandterlain v. West End of London and Crystal Palace Railway Company {k) the plaintift' was the lessee of houses, some of which had already been erected, and some of which were in course of erection, on the high road. The defendants, acting under their statutory powers, made an obstruction and deviation in the road near the houses, so that that part of the road running by the houses was no longer used as a high road, the access to the houses was made less convenient, the number of persons passing them was much reduced, the houses were rendered less suitable for shops, and their value was greatly diminished. It was held that the plaintiff was entitled to compensation on the ground that he had received injury beyond the rest of the public. In Ccdedonian Radiniy Company v. Walker's Trustees (/) trustees were possessed of a spinning-mill ninety yards from an important main thoroughfare in Glasgow, having parallel accesses on the level from two sides of the mill to the thoroughfare. A railway company, acting under their special Act, cut off one access entirely, substituting therefore a deviated road over a bridge with ; steep gradients. They diverted the other access and made it less convenient. It was held that the trustees were entitled to com- pensation by reason of the diminished value of their premises. (0 (1869), L. E. 4 Q. B. 358; 38 L. J. Q. E. 201 ; 10 B. & S. 391 ; 17 W. R. 1094. {k) (1863), 2 B. & S. 605 ; 32 L. J. Q. B. 173 ; 8 L. T. 149 ; 11 W. E. 472; 9 Jur. N. S. 1051. (/) (1882), 7 A. C. 259; 46 L. T. 826 ; 30 W. E. 569; 46 J. P. 576. See also Wood V. Stonrhrifhje Railway Compaiuj (1S64), 16 C. B. N. S. 222; and Jir,j. V. Wallaseij Local Board (1869), L. E'. 4 Q. B. 351; 38 L. J. Q. B. 217 ; 21'L. T. 90; 17 W. E. 766. Sect. 68. Where claimant suffers particular damage beyond the rest of the public. One access to mill entirely cut off — the other rendered less convenient. 160 Code of the Law of Compensatio7i. Sect. 68. House injuriously affected by- alteration of level of street. Piiblic-house injuriously affected by diverting highway. Access to river or sea. Lord Selborne, L.C., laid down the proposition that " the obstruction hi/ the execution of the ivork, of a man's direct access to his house or land, whether such access he hy a 2yuUic road or hy a iDrivate way, is a ijroper sid)ject of compensation.'' In Reg. v. St. Luke's, Chelsea (m), it was held that the lessee of a house injuriously affected by the raising of the level of a street was entitled to compensation. In Moore v. Great Southern and Western Railivay {n) an owner of a cottage was held entitled to compensation for a permanent injury caused hy lowering the level of the road, so that access to his cottage could only be had by means of a ladder. In Metropolitan Board of Works v. Howard (o) the claimant was the tenant of a public-house in Bridge Street, Fulham, which was the main approach to old Putney Bridge. The Metropolitan Board of Works built a new bridge a little further up the river, and made a new thoroughfare leading to the new bridge. They closed the old bridge, and Bridge Street in consequence only led down to the ^\ater. The traffic which formerly passed the claimant's house now went through the new thoroughfare. The plaintiff claimed compensation for injuriously affecting his premises, and produced evidence before the jury to show that in consequence of the diversion of the traffic the trade of the public-house had greatly diminished. The jury awarded him £1,031 compensation, and the House of Lords refused to set it aside, on the ground that inter- ference of this character with the access to the claimant's house was an injurious affecting of his premises, which would give him a right to compensation if those premises were rendered less valuable than they were before. Where the access to a river or the sea is cut off, this is a ground for compensation (jj). In Duke of Buccleuch v. Metropolitan Board of Works (q), the plaintiff was the owner of a garden on the bank of the Thames. He had had, like his predecessors, the use of a causeway which ran from his garden to low- water mark in the river, and he was deprived (m) (1871), L. E. 7 Q. B. 148 ; 41 L. J. Q. B. 81 ; 25 L. T. 914 ; 20 ^Y. li. 209. See also Betj. v. Eastern Counties liaihuay (Jovipa)uj (1841), 2 Q,. B. 347; 11 L. J. Q. B. 66, 178. (n) (18JS), 10 Ir. C. L. E. 46. See also Taolieij v. Oreat Hontherii and Western Railivay Comjuivy (1858), 10 Ir. C. L. E. 98. (o) (1889), 5 T. L. E. 732. (p) Bncdeurh V. Metropolitan Board of Worhs (1872), L. E. 5 H. L. 418; 41 L. J. Ex. 137 ; 27 L. T. 1 ; Macey v. Metropolitan Board of Works (1864), 33 L. J. Ch. 377; 10 L. T. 66; 12' W. E. 691 ; 10 Jur. N. S. 333; Rexj. v. Rynd (18(53), 16 Ir. C. L. E. 29; J^yon v. Fishmongers'' Comj)anji (1876), 1 a". C. 662 ; 46 L. J. Ch. 68 ; 35 L. T.' 569 ; Attorney-General of Straits Settle- ments V. Wemijs (1888), 13 A. C. 192 ; 57 L. J. P. C. 62; 58 L. T. 358 ; North Shore Railway Compant/ v. I'ion (1889), 14 A. C. 612 ; 61 L. T. 525. (q) Siq^ra. TJie Lands Clauses Consolidation Act, 1845. 161 of the use of this causeway and of his communication with the Sect. 68. river by the embankment of the river, and the formation of a road between it and his garden. It was held that he was a riparian proprietor, having a right to the undisturbed flow of the river along the whole frontage of his property, and that he was entitled to damages for being deprived of this right. Lord Cairns, referring to the property, said : " The meaning of its having a water frontage was this, that it had a right to the undisturbed flow of the river, which passed along the whole frontage of the property in the form in which it had formerly been accustomed to pass. That being the state of things, this water frontage with these rights, which the plaintiff possessed, were taken for the purposes of the Act. Beyond all doubt the water right was a property belonging to the plaintiff, for Avhich compensation was to be made, and it was for the arbitrator to assess the compensation to which the plaintiff was entitled upon that footing." AVhere the owner of a tauyard was, by the execution of the works Right to flow of the promoters, deprived of the right to the flow of certain water °*^ ^^ater. into his tanyard and premises, it was held that this was an injurious affecting of the tanyard which entitled the owner to compensation (r). The abstraction of water from a stream by a waterworks company Loss of water entitles a riparian owner to compensation for land injuriously stream, affected (s). A ferry, if attached to the laud, is a private right, in respect of Loss of ferry, the loss of which an owner is entitled to compensation (0- In Farness Railway Company v. Cumberland Co-operative Blocking up Building Society (ji) land was conveyed to the predecessors in title horses and of the building society, the situation, dimensions, and boundaries vehicles. whereof were "more particularly described in the plan . . . together with all streets, ways, rights, easements, and advantages." The plan showed a piece of land at two intersecting streets. The streets had not been made at the time of the conveyance, but the soil of the intended streets was the property of the vendor. The (/•) Mortimer v. South Wales Railway Company (1859), 1 E. & E. 375 ; 28 L. J. Q. B. 129 ; 7 W. E. 292 ; 5 Jur. N. S. 784. See also Rex v. NoUimjham Old Waterworks Company (1837), 6 A. & E. 355. (s) Bwsh V. Trowbridge Waterworks Company (1875), L. E. 10 Ch. App. 459; 44 L. J. Ch. 645 ; 33 L. T. 137 ; 23 W. E. 641. See also Ferrand v. Bradford Corporation (1856), 21 Beav. 412; 25 L. J. Ch. 389; 2 Jur. N. S. 175; Stone v. Yeovil Corporation (1876), 2 C. P. D. 99; 46 L. J. C. P. 137 ; 36 L. T. 279; 25 W. E. 240; Page v. Kettering Waterworks Company (1892), 8 Times L. E. 228. I J ^ J' (t) Reg. V. Great Northern Railway Company (1849), 14 Q. B. 25 ; 19 L. J. Q. B. 25 ; 6 E. C. 246 ; 14 Jur. 128. See also Hopkins v. Great Northern Railway Company (1877), 2 Q. B. D. 244; 66 L. J. Q. B. 265; 36 L. T. 898. {y) (1884), 52 L. T. 144. L.C. 11 162 Code of the Law of Compensation. Sect. 68. streets having been made, a railway company took part of the land, and blocked up the access for horses and vehicles to one of the streets. It was held that the building society were entitled to compensation. Where no In a Scotch case (x) it was held that an owner was not entitled castfupon ^o compensation, on the ground that he was prevented from ever superior to having carriage access to certain streets, marked on a plan, where give access. , ,■,..•!/. . , , ,i there was no obligation m the leu contract cast upon the superior to give feuars, at any future time, access along any of the roads or streets marked on the plan. Level crossing In Glovcv v. North Staffordshire Bailway Company (y) an ow^ner and gates. ^£ ^ house had a right of way over two private roads. A railway company constructed a railway on a level across the roads, and erected gates which were kept locked, the key being kept by a servant of the company. It was held that the owner's house was injuriously atiected by the erection of the gates and the passage of the trains, and that he was entitled to compensation. Sporting The right to shoot game and take it away when shot has been "^ ^' held to be an interest in land (z), and the owner would therefore be entitled to compensation if he were deprived of this right. It has, however, been held that where a person has a right of shooting over land by an agreement not under seal, he has not such an interest as to entitle him to compensation if the shooting is injuriously affected by the works of the promoters. In giving judgment in Bird V. Great Eastern Baihvay Company (a) Erie, C.J., said : " The right which the plaintiff has is a mere licence, by an instru- ment not under seal. The plaintiff's right lies only in agreement, and he has no land, or interest in any land which has been taken by the defendants." AVilles, J., in the same case, said : " lam far from saying that it may not do what the law would call an injury, but not to a person who has merely a grant of the right of shooting Avithout a covenant of the owner of the land, express or implied, not to do any thing which would interfere Avith the exercise of such right." Tithes. In a case decided before the Tithe Commutation Act, 1836(?>), it was held that a tithe owner was not entitled to compensation, (,t) Flcvn'iifj v. Neivport Railivay Compmui (1883), A. C. 265. iy) (1851), 16 Q. 13. 913; 20 L. J. Q. B. 376 ; 15 Jur. 673. (z) WMer v. Lee (1.SS2), 9 Q. B. D. 315 ; 51 L. J. Q. B. 485 ; 47 L. T. 215; 30 W. W. 866 ; 47 J. P. 4. See also Wickham v. Hawker (1840), 7 M. & W. 63 ; 10 L. J. Ex. 163. («) (1865), 19 C. B. N. S. 268 ; 34 L. J. C. P. 366 ; 13 L. T. 365 ; 13 W. E. 989; 11 Jm-. N. S. 782. See also Bird v. Hiijqin.wt, (1837), 6 A. & E. 824; r!nIi(J((tion Act, 18-15. 163 where the laud out of wliicli the tithe arose was taken for improving Sect. 68. the navigation of the outfall of the river Nene. It has since been held that the sum payable in lieu of tithes under the Tithe Com- mutation Act is not a charge on the inheritance (c). Whether the owner of the rent-charge can make a claim for compensation has not been decided. Probably he can. By the Tithe Act, 1878 (d), pro- vision is made for the redemption of the tithe rent-charge on all land taken for any of the purposes therein set out, viz. : the building of any church, the making of a cemetery, erection of any school under the Elementary Education Act, the erection of certain public buildings and artizans' dwellings, and the formation of any sewage farm or the construction of sewers. The Act provides that the tithe rent charge shall be redeemed for an amount equal to twenty-five times the amount of the rent- charge. In Payne v. Esdaile (e) it was held that tithes imposed on the inhabitants of the city of London by 37 Hen. VIII. c. 12, were annuities or periodical sums of money charged upon land. In Esdaile v. Metrojyolitan and District Hailuay Companies (J) Provision in provision was made in the special Act to take property subject to for'compensa- tithes on condition that the promoters indemnified the tithe owners, tion to tithe , . . IT o^vner — basis by continuing to pay them according to the last assessment, or by of assessment. purchasing the tithe under the Lauds Clauses Consolidation Act, 1845, by payment of compensation. It was held that if the pro- moters elected to pay compensation, the last annual assessment was not to be taken as the basis for estimating the amount of compensa- tion to be paid ; but that the possibility of future improvement should be taken into account. ARTICLE 5. — The injury or loss for which compensation is claimed Injury must must have been actionable before the promoters acquired their ^^''^^5 ^^fl^ iT 1 actionable statutory powers. before special In In re Penny and the Soutk-Eastern Bailicay Company (g) it was held that compensation cannot be claimed for an annoyance caused by persons standing on the bank of a railway and overlooking the claimant's premises, such annoyance being an injury to the amenities of the claimant's residence, and not injuriously afi'ecting his property so that an action would lie. Lord Campbell said : (r) Bail.// V. Badliam (1885), 30 Ch. D. 84 ; 54 L. J. Ch. 1067 : 53 L. T. 13 : 33 W. E. 770. ('/) 41 & 42 Vict. c. 42. jwst. (e) (1888j, 13 A. C. 613 ; 58 L. J. Ch. 299 ; 59 L. T. 568 ; 37 W. E. 273 ; 53 J. P. 100. See also EsdaiU v. Esdaih- (1886), 54 L. T. 637. (/) (1881), 46 J. P. 103. See also Loudon and Blaclauall Railway Compatty v. Letts (1851), 3 H. L. C. 470; 15 Jur. 995. (j/) (1857), 7 E. & B. 660 ; 26 L. J. Q. B. 225 ; 5 W. E. 193 ; 3 Jur. N. S. 957. See also Glover v. Nortli Stafordshire Railvmy Compeiny (1851), 16 Q. B. 913 ; 20 L. J. Q. B. 376 ; 15 Jur 673. 11—2 Act. 164 Code of the Law of Compensation. Sect. 68. "The test is, whether, before the Railway Act passed authorising the company to do what has been done here, an action would have lain at common law for what has been done, and for which com- pensation has been claimed. If it would, and that Act is authorised by the Railway Act, compensation may be claimed in respect of it ; if the land is not taken and nothing is done which would have aftbrded a cause of action before the Act passed, then, although it may produce a deterioration of the property, it does not injuriously affect the land and constitute a ground for compensation." In Ricket v. Metropolitan Railway Companij (li) Lord Chelms- ford, L.C., said: "I think that the criterion of a party's right to damages under the clauses of the Railway and Companies Acts, upon which this case depends, is correctly stated by Lord Campbell in In re Penny and South-Eastern Railway Company (i) ; and that, in his words, ' unless the particular injury would have been actionable before the company acquired their statutory powers it is not an injury for which compensation can be claimed.' At the same time the observation of my noble and learned friend. Lord Cranworth, in the case of the Caledonian Railway Company v. Ogilry (k), must not be lost sight of; that ' it does not follow that a party would have a right to compensation in some cases in which, if the Act of Parliament had not passed, there might have been not only an indictment, but a right of action.' " In Metropolitan Board of Works v. McCarthy (7) Lord Cairns, L.C., said: "In the observations I am about to make to your Lordships, I propose entirely to accept the test which has been applied both in this House and elsewhere, as to the proper meaning of those words as giving a right to compensation, namely, that the proper test is to consider whether the act done in carrying out the works in question is an act which would have given a right of action if the works had not been authorised by Act of Parliament. I do not pause to inquire whether or not, if the question was now to be decided for the first time, it is not a test somewhat too narrow. I accept that test as being the test which has been laid down, and which has formed the foundation for the decision of so many cases before the present." Tenant from In Reg. V. Vaughan {m) a railway company served a tenant from year to year of ". ! {h) (1867), L. R. 2 H. L. 175 ; 36 L. J. Q. B. 205 ; 16 L. T. 542 ; 15 W. R. 937. {i) Supra. (k) (1856), 2 Macq. H. L. (Sc.) 229 ; 7 Jur. N. S. 475. (0 (1874), L. R. 7 II. L. 243 ; 43 L. J. C. P. 385 ; 31 L. T. 182 ; 23 W. R. 115. See also ('aleduniun Ilailivdi/ CoinpaNi/ v. Walker^s Trustees (1882), 7 A. C. 259 ; 46 L. T. 826 ; 30 W. R.' 569 ; 46 J. P. 576. (to) (1868), L. R. 4 Q. B. 190; 38 L. J. M. C. 49; 17 W. R. 115. See also Rex v. London Dock Company (1836), 5 A. & E. 163 ; 6 N. & M. 390; The Lands Clauses Consolidation Act, 1845. 166 year to year of a public-house with a notice to treat, and of their Sect. 68. intention at the expiration of six months to enter and take the public-house premises. The tenant sent in his particulars of claim to the com- —holding i '■ J • 1 °^'^^ after pany, but they did nothing further for three years, and in the notice — meantime the tenant continued to carry on his business of a ["adecaused publican on the premises. Subsequently, the question of the com- by pulling 11 1 T 1- i" p i tj. t down neigh- peusation payable to the publican came beiore a metropolitan ponce bomii L-ine magistrate under sect. 121, and the publican, inter alia, claimed houses, compensation for the depreciation in the value of his interest, which had taken place in the interval since the expiration of the six months, by reason of the execution of the company's works, the custom of the public-house having been greatly reduced by the pulling down of the neighbouring houses taken under the company's statutory powers. It was held that this depreciation was not a subject of compensation. Cockburn, C.J., said : " The tenant was entitled, on the property being taken by the company, to compen- sation, but entitled only to compensation assessed according to the profit he was making by carrying on his business on the premises ; but as soon as the company acquired the right of possession in the }iroperty the tenant's interest ceased ; and if they had taken posses- sion, his business and profit must have ceased also. It is quite clear the tenant cannot ask for compensation because the neigh- bouring property has been taken. The company might have done this by voluntary agreement quite independently of any statutable pou-ers, and so destroyed the custom of the public-house, and no action could have been maintained by him for the loss, inasmuch as no injury or trespass was done to him ; consequently he could not have claimed compensation for this description of loss. This is an item of compensation not contemplated by the statute." In Metropolitan Board of Works v. Metropolitan Bailuay Com- Damage to pany (n) the railway company, by the construction of their railway, claimants no had deprived the sewer of the plaintifi:' of its lateral support less prescriptive XI ,..■,-> 11 right to than twenty years alter it was made, and as a result the sewer support. burst. In an action by the Metropolitan Board of Works to recover the sum awarded by an arbitrator under the Lands Clauses Con- solidation Act for the damage thereby sustained, it was held that Itex V. Hunger ford Market Company, Ex parte Yeates (1834), 1 A. & E. 668; Jiex V. HuiKjerford Market Conxjjany, Ex parte Eyre (1834), 1 A. & E. 676; lihodes V. Airedale Drainage Commissioners (1876), 1 C. P. D. 380; 45 L. J. C. P. 861 ; 35 L. T. 46 ; 24 W. Pv. 1053. in) (1869), L. E. 4 C. P. 192 ; L. E. 3 C. P. 612 ; 37 L. J. C. P. 281 ; 19 L. T. 74-1 ; 17 W. E. 416. See also Roderick v. Aston Local Board (1877), 5 Ch. D. 328 ; 46 L. J. Ck 802 ; 36 L. T. 328 ; 25 W. E. 403 ; Xorth London Fioilway Company v. Metropolitan Board of Works (1859), 28 L. J. Ch. 909; 1 John. 405 ; 5 Jur. X. 8. 1121 ; In re Pettiivard and Metrojiolitan Board of Works (1865), 19 C. B. X. S. 489; 34 L. J. C. P. 301 ; 12 L. T. 764. 166 Code of the Law of Compensation. Sect. 68. the Metroplitan Board of Works had acquired no right to lateral support for their sewer, either under the special Acts or otherwise, and were not entitled to recover. Loss of flow In Hex V. Bristol Dock Conqyany (o) it was held that interfer- of w.iter— no gj^^g with a flow of water to which there is no prescriptive right, is right. not a loss which, hut for statutory powers, would have been action- able, and that therefore no compensation is due to the owners of a brewery for a loss arising to them in their business for the deterioration of the water of a public river from which the brewery had been before supplied. In Neiv River Company v. Johnson {p) the promoters, under a private Act which incorporated the Waterworks Clauses Act, 1847, executed works and thereby intercepted water which would other- wise have percolated through the strata of the earth into a well upon the premises of the respondent. They also drained off water which had accumulated in the well. It was held that, inasmuch as no action would lie against the appellants, the New River Company, in respect of either quantity of water, supposing no Act authorising the execution of the works had been passed, a claim for compensa- tion could not be sustained. Hoarding In Herring v. Metropolitan Board of Works (q) it was held that cOTsh'ucUou ^ ^" obstruction to the roadway, caused by the defendants constructing of a sewer. a sewer under their statutory powers, whereby access to the plaintiff's premises was rendered less convenient, gave the plaintiff no right to compensation, as, apart from the statutory powers, he had not suffered an injury which would have given him a cause of action. Damage must ARTICLE 6. — Compensation can only be claimed for loss or damage be occasioned occasioned bv the construction of the authorised works, but not by construe- •' tion— not by by their user. user. In Ilamntcrsmith BaiUcay Company v. Brand (r) the question whether a house owner could recover compensation for damage occasioned by "vibration, noise, and smoke," caused by the running of trains after the railway had been constructed and opened for {<)) (1810), 12 East, 429. Sec also Chasemore v. liidiards (18j9), 7 H. L. C. 349 ; 29 L. J. 3']x. 81 ; 7 W. R. 685 ; BaUard v. Tvmliusvn (1885), 29 Ch. D. 115; 54 L. J. Ch. 454; 52 L. T. 942; 33 AV. E. 533; /iVy. v. Mdropol ita it Board of Works (1863), 32 L. J. Q. 13. 105; 3 B. & S. 710; 8 L. T. 238; 11 W. R. 492 ; 9 Jur. N. S. 1008. {2>) (1860), 2 E. & E. 435 ; 29 L. J. M. C. 93 ; 6 Jiu-. N. S. 374. {(j) (18()5), 19 C. B. N. S. 510 ; 34 L. J. M. C. 224. (r) (18H9), L. R. 4 H. L. 171 ; 38 L. J. Q. B. 265; 21 L. T. 238; 18 W.E. 12. See also Clti/ of Ghtsyoio Uin'vit Raihnni ('omjia)ii/ v. IlnuUr (1870), L. R. 2 II. L. (So.) 78; Loudon and Kort/i-lVttitcni Railway Comjiain/ v. Bradhji (1849), 3 M. & G. 336; 6 R. C. 551 ; 15 Jur. 639, must be considered overruled. The Lauds Clauses CousoUdatiou Act, 1845. 167 traffic, came before the House of Lords. Lord Chelmsford said : Sect. 68. " The simple question is whether the Legislature has provided compensatiou for any damage to laud or houses not arising from negligence, but the inevitable consequence of the proper and ordinary use of the railway. . . . The plaintiff's remedy by action being taken away, the question remains whether they are entitled to receive compensation from the company for the injury done to their house, a question which must be decided entirely by the provision of the Acts of Parliament relating to the subject. It must be taken as an established fact that by the use of the railway the plaintiff's house has been depreciated in value to the extent of Jt'272, and as they cannot recover the damage they have tlms sustained by action, one naturally feels a wish to find that the Legislature has not left them remediless, but has provided for them the means of redress in the shape of compensation to be paid by the company as the price of the right given to them to injure the plaintift''s property. It is with this disposition that I entered upon an examination of the clauses of the Acts to which your Lordships' attention was called in the argument, and I may say that it was with regret I was unable to find anything in them ui)on which, in my opinion, the claim for compensation can be established. It is not that the Legislature has excluded compensation for injury arising as the necessary consequence of using the railway, but that it has not, as far as I can discover, given any right to claim compensation for this species of injury." In Ilex V. Pease (s) it was held that a railway company could Horses not be indicted for a nuisance because the locomotives frightened locomotives, horses, on the ground that this interference with the rights of the public must be taken to have been contemplated and sanctioned by the Legislature. In yautjhan v. Tap Vale Uailnay Company [t] it was held that a railway company were not responsible for an accidental fire caused by a spark falling from one of their engines upon premises adjoining the railway, when they have taken every precaution that science can suggest to prevent injury. They are not liable unless they are guilty of some negligence in fact ; and negligence cannot be implied from the mere employment of locomotive engines, as the use of them is expressly permitted by the Legislature. Both of these cases were approved by the House of Lords in Brand's Case {u). (s) (1832), 4 B. & Ad. 30; 1 X. & M. 690. (0 (I860), 5 H. & X. 679 ; 29 L. J. Ex. 247 ; 2 L. T. 394 ; 8 W. E. 594 ; 6 Jur. X. S. 899. See also Freeinantle v. Loudon and North- Western Railwai/ Compami (1861), 10 C. B. X. S. 89; 31 L. J. C. P. 12; 2 F. & F. 337; 9 W. E. 611. ((') Supra. 168 Code of the Laic of Compensation. Sect. 68. The same principle was re-affirmed hj the House of Lords in London, Brighton and South Coast Radwaij v. Truman {x). By their special Act the company were empowered to purchase com- pulsorily land for the purpose of providing stations, yards, and conveniences for receiving, loading or keeping cattle or goods. Under this power the company hought land adjoining one of their stations, and used it as a yard or dock for their cattle traffic. The noise of the cattle and drovers was a nuisance to the occupiers of houses near the station. There was no negligence in the mode in which the company conducted their business ; and the House of Lords held that as the purpose for which the land was acquired was expressly authorised by the Act, the company were authorised to do what they did, and were not bound to choose a site more con- venient to other persons; and that the adjoining occupiers were not entitled to an injunction to restrain the company. In Caledonian Raihcay Company v. Walkers Trustees {y) Blackburn, J., said: "No action can be maintained for anything which is done under the authority of the Legislature, though the Act is one which, if unauthorised by the Legislature, would be injurious and actionable. The remedy of the party who suffers the loss is confined to recovering such compensation as the Legislature has thought fit to give him. The Lands and Railways Clauses Acts of 1845 give some compensation. . . . And it must now be considered settled that on the construction of these Acts, com- pensation is confined to damage arising from that which would, if done without authority from the Legislature, have given rise to a cause of action." Smoke from The same question arose in Attorney-General v. Metropolitan I2i?wa|™''°'^ Railu-ay Company {z). In that case the railway company were authorised by their special Act to construct an underground rail- way. They constructed part of the railway in a tunnel, and, having purchased a piece of ground at the back of a dwelling-house, carried the tunnel through such ground, and made an aperture in the ground for the purpose of ventilating the tunnel. Some years afterwards the plaintiff became lessee of the house, and daring his tenancy the defendants, with a view to the better ventilation of their line, enlarged the aperture, and in consequence the quantity of smoke, steam, and foul air coming from the railway to the plaintiff's house was much increased, and the house materially depreciated in value. It was held by the Court of Appeal, (..) (18S5), 11 A. C. 45 ; 55 L. J. Ch. 354 ; 54 L. T. 250 ; 34 W. E. G57; 50 J. P. 38S. ^ ^^ ^^ (//) (1882), 7 A. C. 259; 46 L. T. 826 ; 30 W. E. 569 ; 46 J. P. o/6. (z) [1894], 1 Q. B. 384 ; 69 L. T. 81 1 ; 42 W. E. 381 ; 9 E. 598 ; 58 J. P. 342. The Lands Clauses Consolidation Act, 1845. 169 followiug the principle laid tlowu in Brand's Case (a), that the Sect. 68 plaintiff had no right to compensation, for the alteration would cause no damage if the line was not used, the damage arising, not from the construction, but from the working of the railway. In this case Lindley, L.J., said: "The injury complained of origi- nates in the tunnel, and the smoke, &c., causing the injury are produced by the traffic underground, or, in other words, by the use of the railway in the tunnel. But the use of the railway in the tunnel was authorised by Parliament, and such inconvenience as noise, vibration, smoke, steam, dust, and foul air, unless attributable to negligence, must be put up with by persons affected by them. No compensation can be claimed under the statutes for injury attributable to such causes. This was finally settled by the House of Lords in Hammersmith Railway Company v. Brand (h), which has been explained in subsequent cases, especially in Caledonian Eadicay Company v. Walker's Trustees {c). A line has to be sharply drawn, first, between cases in which land of the person claiming compensation has been taken and cases in which no land of his is taken ; and, secondly (as regards the last class of cases), between injury occasioned by construction of works and injury occasioned by the use of the railway. If, as in this case, no laud of the person claiming is taken, compensation can be obtained for injury done by the construction of any of the works authorised; but no compensation can be obtained for injury occasioned by the use of the railway, or of such works, unless there is negligence, and there is none here." In City of Glasgow Union Railway Company v. Hunter (d) it No compensa- was held, following Brand's Case, that statutory compensation annoyance by cannot be claimed by reason of the noise or smoke of trains, noise or smoke . r 1 ^ ■ T 1 °^ trains. whether part of the claimant s lands be taken or not. Lord Chelmsford was of opinion that as the Legislature had given the promoters power to annoy the occupiers of neighbouring property with smoke, an injury from this cause was not the subject of compensation, but a ground of action. The owner of a ferry cannot recover compensation for loss of Ferry owner traffic caused by a new bridge constructed by a railway company compensation under their statutory powers. This was decided in Hopkins v. for loss of Great Xortliern Railway Company {e), on the following grounds: ^y ('<) Supra, (h) tiuprtt. {(•) Siijiru. i't) (1870), L. E. 2 H. L. (Sc.) 78. (e) (1877), 2 Q. B. D. 224 ; 46 L. J. Q. B. 265; 36 L. T. 898; overruling B>'f/. V. Camhnan RaHway Cnnpany (1871), L. E. 6 Q. B. 422; 40 L. J. Q. B. 169; 25L. T. 84; 19 W. E. 1138. new- bridge. 170 Code of the Law of Compensation. Sect. 68. New clause to override above decisions. Damage caused by firstly, that an action could not have been maintained for disturb- ance of the ferry in respect of the traffic by the bridge, if it had been erected without the authority of an Act ; and secondly, on the ground that the injury to the ferry, being occasioned, not by the construction, but by the working of the railway, the ferry had not been injuriously affected within the meaning of the Lands Clauses Consolidation Act or Railways Clauses Act. In delivering the judg- ment of the Court, Mellish, L.J., said : " It seems to us that the construction of the railway, as distinguished from the user of the railway after it was constructed, was not the proximate cause of the damage suffered by the owner of the ferry, for this simple reason, that if the railway and footbridge had only been constructed and never opened to the public or used, it is plain the owner of the ferry would have suffered no damage whatever. We are, therefore, of opinion, that in accordance with the judgment of the House of Lords in the case of Brand v. Haminersinitk llaUicay Company {f), the appellants are entitled to succeed." In order to override the above decisions the following clause has been inserted by Parliament in an underground electric railway company's special Act: "In addition to the provisions of the Acts incorporated herewith, or to the Company's Act of 1897 and Acts amending the same with respect to lands taken or injuriously affected, the company shall make compensation to the owner, lessee or occupier of any laud, house or building which shall be injuriously affected by reason of the woiking of any railway of the company, where constructed in tunnel (including the working of lifts and any other works in connection with such railway), notwith- standing that no part of the property of such owner, lessee or occupier is taken by the company. Provided that all claims for compensation under this section shall be made within two years from the date of the opening of such railway for public traffic, and shall be settled by a single arbitrator under and subject to the pro- visions of the Arbitration Act, 1889, save that where the parties do not concur in the appointment of an arbitrator the Board of Trade shall have the power of the Court or judge under sect. 5 of the said Act." This clause has been inserted in order to enable owners, lessees and occupiers to make claims for compensation for vibration and other annoyances which are the result of the user, and not of the construction, of the works of the promoters. ARTICLE 7. — Damage caused by acts or works which are not (/) Supra. The Lauds Clauses Cousoli(h(tion Act, 1845. 171 authorised by the special Act or Acts incorporated therewith must be Sect. 68. recovered in the Courts of common law. unauthorised Acts must be In Caledouian Railway Compuuy v. Colt (fj) Lord Camp- recovered in bell, L.C., said: "This statutory tribunal is only established to common law. a'lve compensation for losses sustained in consequence of what the railway company may do lawfully under the powers which the Legislature has conferred upon them, and that for anything done in excess of those powers or contrary to what the Legislature in conferring those powers has commanded, the proper remedy is a common law action in the common law Courts." In Turner v. Sheffield and Rotherham Radicay Company (h) it was provided that nothing in the special Act contained should authorise the company to take, injure, or damage, for the purposes of the Act, any house or building which was erected on or before November 30th, 1835, without the consent in writing of the owner or other person interested therein. It was held that the company were liable in an action at common law to the reversioner of a house erected before November 30th, 1835, for damage done to it by the obstruction of its lights by a railway station erected by the company, and by the dust, &c., which drifted from the station and embankment into the house. In Tlie Imperial Gaslight and Coke Company v. Bnxidhent {i) Lord Campbell, L.C., laid down the same principle. Referring to this section of the Lands Clauses Consolidation Act, he said : " It has been again and again decided that under that clause no compensation could be sought except for injuries that might be occasioned by what was done under the powers conferred by the Legislature upon any bodies of persons. That was not the case here — the damage here was not occasioned by something done under the powers of the private Act, and the Act did not interfere to put an end to the common law right of action." If the promoters cause damage to a landowner by the negligent Damage i '^ 1 • 1 1 1 caused by- manner in which they carry out their authorised works, they are negligence of liable in an action at common law, notwithstanding their statutory J^'™jo^_^^''^~ powers. In Lauirnce v. Great Xortlwrn Raihvay Company (/.) the plaintiff brought an action for injury to his land owing to its being flooded by the fault of the defendants, who had constructed {;/) (1S60), 3 Macq. 833 ; 3 L. T. 252 ; 7 Jur. N. S. 475. ^ (/() Turner v. ^hcffitJdaud lUAlarhurii Ilnlhcaij Cumpani/ (1842), 10 M. & A\ . 425 ; 3 E. C. 222. (/) (1859), 7 H. L. C. 600; 7 De G. M. & G. 436; 29 L. J. Cli. 377 ; 26 L. J. Ch. 276 ; 5 W. E. 272 ; 5 Jur. N. S. 1319. (k) (1851), 16 Q. B. 643 ; 20 L. J. Q. B. 293 ; 6 E. C. 656 ; 15 Jur. 6.j2. See also Brme v. (jr^-fut Wcsti^ni Railivai/ Cdm/iani/ (1862), 31 L. J. Q. B. 101 ; 2 B. & S. 402 ; 6 L. T. 50 ; 10 W. E. 341 ; 8 Jur. N. S. 410. 172 Code of the Law of Compensation. Sect. 68. Power given to promoters must be exercised with moderation and discre- tion. their railway without leaving sufficient oj^enings for the passage of flood- waters, whereby the latter were obstructed and penned up and forced upon the lands of the plaintiff. At the trial a verdict was given for the plaintiff. A rule was obtained and subsequently discharged, to enter a verdict for the defendants. In delivering judgment Patteson, J., said: "Here the company might, by executing their works with proper caution, have avoided the injury which the plaintiff has sustained, and we think that the want of such caution is sufficient to sustain an action." In Clothier v. JVehstcr (l) the action was brought against the defendant for negligence in the construction of a sewer, by reason of which the plaintiff's premises were damaged. The jury found that the plaintiff was guilty of negligence, and that the damage was caused thereby. On motion to set aside judgment, Erie, C.J., said : " We quite agree that, where by an Act of Parliament any damage which may be incurred by the execution of the powers conferred by the Act is made the subject of compensation, no action will lie. But the Legislature always contemplates that the works will be executed with due care and skill, and so the statute must be read. On this very important point, therefore, whether, if the Metropolitan Board of Works, or their contractors, in executing the powers conferred upon them by this statute are guilty of negligence, recourse must be had for compensation to two justices under sect. 225 {iii), or whether an action may be brought, we give our opinion in favour of the plaintiff." In Biscoe v. Great Eastern Railway Company {n) it was held that a railway company is bound to exercise the power given to it in derogation of individual rights with moderation and discretion, and not negligently. In that case the company, in executing works authorised by their statutory powers, took insufficient pre- cautions to secure the safety of an adjoining house. The Court granted an injunction to restrain the negligent exercise of their powers, and appointed a surveyor to report what was necessary to secure the ))laintiff's premises; and the company having com- plied with the ro(]uisitions of the surveyor, the Court granted an inquiry as to damages. In Clowes v. StaJ'ordsliire Potteries ]]'(iterworks Company (o), (0 (18(52), 12 C. B. N. S. 700; 31 L. J. C. P. 317; 6 L. T. 461 ; 10 W. E. G24; 9 Jur. N. S. 231. (m) 18 it U) Vict. c. 120. (;/) (1873), li. E. H) Eq. 030; 21 W. E. 908. See also Harrison v. SoutJi- ■irark uu) (1859), 6 C. B. N. S. 359; 28 L. J. C. P. 271 ; G B. & S. 359 ; 5 Jur. N. S. 1011. (;)) (18(;3), 32 L. J. Q. B. 113 ; 3 B. & S. 436 ; 7 L. T. 741 ; 11 W. E. 360. See also h'rt/ejit's Canal ('i,m])arn/ v. 11 are (1857), 23 Beav. 575 ; 26 L. J. Ch. 566; 5 W. 11. (517; 3 Jur. N. S. 924; Caltdoitian Jiailuay Conqnmy v. Lock-hart (1860), 3 Macq. 808. The Lands Clauses Consolidation Act, 1845. 179 llaihcini Compant) (q) Erie, C.J., said : " It is well-known law that Sect. 68. under tliese statutes a party must make one claim for damages, once and for all, fur all damages that can reasonahly be foreseen, and have one inquiry and one compensation." In Laicre)ice v. Great Noj-tJieni Railwaij Company {r) Patteson, J., I'uforeseen referring to the argument that the award was to be taken as ° ' embracing unforeseen damages, said : " The proposition that it was to be taken to embrace such damages is so startling that we should expect some express provision to be pointed out to that effect, either in the general Acts relating to railways, or the special Act under which the railway was constructed, or the instrument of reference. We have examined all these, and are not only unable to find any such express provision, but any clause whatever which can fairly have any such inter[)retation put upon it. We are, there- fore, clearly of opinion that the compensation must be taken in the restricted sense contended for by the plaintiff." It would appear, therefore, although there is no direct decision of the point, that a second assessment for unforeseen damages would be supported. ARTICLE 13. — The service of a notice to treat disentitles a person Property who subsequently bona fide acquires from the owner upon whom the ^Qt^'^f ^ 'f^^l notice to treat was served an interest in adjoining property from —injurious claiming compensation in respect of an injurious affection of that ^^^'^"^'on of. interest by the execution of the works of the promoters. This was decided in Mercer v. Lirerpoul, St. Helen's, and South iMHcasltire Rdihvaii Cmiipanii [a), in which case it was not disputed that the lowering of a road and the interference with the access to the plaintiff's houses did cause an injurious affection which would, under ordinary circumstances, entitle the plaintiff to compensation. But it was said that the giving of a notice to treat to the owner in October, 1891, coupled with the payment of compensation in pur- suance of an agreement, prevented the plaintiff from being entitled to compensation in respect of the injurious affection of land demised by the same owner under a lease of June, 1892. In delivering judgment Stirling, L.J., said : " The landowner cannot escape (q) (1S63), 32 L. J. Q. B. 173 ; 2 B. & S. 617; 8 L. T. 149; 11 W. E. 472; 9 Jur. X. S. 1051. See also In re Broaden and Lli/uvi Valtey RaiJu-uij Com- pmn, (1860), 30 L. J. C. P. 61 ; 9 C. B. X. S. 229; 4 L. T. 361 ; Stone v. Yeonl Corpomtion (1S76), 2 C. P. D. 99; 46 L. J. C. P. 137; 36 L T 279- 25 W. E. 240. (r) (1851), 20 L. J. Q. B. 293; 16 Q. B. 643 ; 6 E. C. 656; 15 Jur. 652. See also Lancashire and Yorkshire Piailway Company v. Evans (1851), 15 Beav. 322. Js)^ (U)03),_19 T. L. E. 210; overruHng Lord Alverstone, C.J. [1901], 2 K. B. 753 ; 70 L. J. K. B. 775. See also ('roft v. London and North-Westem Railiray Company (1863), 32 L. J. Q. B. 113; 3 B. & S. 436; 7 L. T. 741; 11 W. E. 360; aiite, p. 178. 12—2 180 Code of the Law of Compensation. Sect. 68. from the obligations imposed on him by the notice to treat, and one of these is an obligation to bring forward and have determined all claims in respect of damage to lands of his arising from the execution of the proposed works. If, as the cases already referred to show, he can only deal with the land which he is required to give up subject to the obligations imposed by the notice to treat, I do not see why he should be permitted to disregard those obliga- tions when dealing with land which he is not required to give up, but which may be damaged by the execution of the works." Damage must ARTICLE 14. — The damage claimed as compensation under the remot^e Lands Clauses Consolidation Act must not be too remote according to the principles of common law. In Re An Arbitration between Clarke and tlie Wandsworth District Board of Works (t) the claimant was a seedsman, having offices in Covent Garden, where he kept his stock, and having also a market garden at Wandsworth, where he sowed small quantities of all the seeds in his stock on trial, after which he sold each parcel at a higher price, by reason of his giving a warranty based on his experience of these trial crops. The defendants entered upon his land, and so carried on their works that it became im- possible to identify the trial crops with the seed in bulk, whereby the plaintiff was unable to warrant his seeds, which were in con- sequence depreciated in value 50 per cent. It was held that the sum awarded in respect of such depreciation was too remote, and could not be recovered. It is different, however, where the special Act provides for com- pensation in cases where damages would be held to be too remote at common law (»). Referring to the nature of the damage for which compensation may be awarded, Willes, J., said, in Beckett v. Midland llailwaij Company {x), "The damage complained of must be one which is sustained in respect of the ownership of the property, — in respect of the property itself, and not in respect of any particular use to which it may from time to time be put : in other words, it must be a damage which would be sustained by any person who was the owner, to whatever use he might think proper to put the property. Now that, of course, is to be taken with the limitation that a person who owns a house is not to be expected to pull it down in order to use the land for agricultural purposes. That would be (0 (1868), 17 L. T. 549. («) Rex V. Thames and Isis Navigation Commissionera (1836), 5 A. & E. 804. (x) (1867), L. E. 3 C. P. 82 ; 37 L. J. C. P. Ill ; 17 L. T. 499 ; 12 Jur. N. S. 231. The Lands Clauses Consolidation Act, 1845. 181 pushing the judgment in lUcket v. Metropolitan Bailway Com- Sect. 68. pant/ iy) to an absurd extent. The property is to be taken in statu p^,^ eT^to quo, and to be considered with reference to the use to which any be taken in owner might put it in its then condition, that is, as a house." utatuquo. In Knock v. Metropolitan liaihcay Company {z), a case under Damage to the 6th and 16th sections of the Eailways Clauses Consolidation °'^*^^^' Act, 1845 (a), it was held that damages were not to be confined to structural damage and depreciation in value of the premises, but that a claimant was entitled to compensation for damage occasioned to goods therein, by reason of the exercise of the powers conferred upon the company. In Coicper Essex v. Acton Local Board {h) the jury awarded Proximity of damages for injuriously affecting lands other than those taken, by !!.dama^e7^ the erection of sewage works on the laud taken. Evidence was not too" given at the inquisition that the existence of sewage works, even if ^^^^ ^' conducted so as not to create an actionable nuisance, nevertheless would depreciate the market value of the claimaiut's other lands. The House of Lords held that the damages were not too remote. In In re London, Tilbury, and Southend Railway Company and Easement— the Trustees of Gower's Walk Schools (c) the claimants, who were SrSo?'"'' the owners of certain buildings with ancient lights, pulled them light, down and erected a new building on their site. The position of certain portions of the windows of the new building coincided with that of portions of the old windows, while other portions of the new windows occupied wholly different positions. Before any right to the access of light to the non-coinciding portions of the new Avindows had been acquired, a railway company, in exercise of their statutory powers, erected a warehouse which obstructed the lights of windows in the new building. It was held that the claimants were entitled to compensation in respect of the whole of the windows so obstructed, including the windows and portions of windows which did not coincide with any of the ancient lights. In Eagle v. Charing Cross Radway Company (d) it was held interference that the claimant was entitled to damages by reason of a diminution ^''*!^ light— „,., " *' no diminution ot light to Ins house caused by the execution of the works of the in saleable _ . value of his 0/) (1867), L. E. 2 H. L. 175; 36 L. J. Q. B. 205 ; 34 L. J. Q. B. 257 ; 16 P''°""ses. L. T. 542; 15 W. E. 937. (2) (1868), L. E. 4 C. P. 131 ; 38 L. J. C. P. 78 ; 19 L. T. 239 ; 17 W. E. 10. («) Post. (b) (1889), 14 A. C. 153; 58 L. J. Q. B. 594; 61 L. T. 1 ; 38 W. E. 209. See also Buccleuch y. Metropolitan Board of Works (1871), L. E. 5 H. L. 418; 41 L. J. Ex. 137 ; 27 L. T. 1 ; L. E. 3 Ex. 306; L. E. 5 Ex. 221. (c) (1890), 24 Q. B. D. 326 ; 59 L. J. Q. B. 162; 62 L. T. 306 ; 38 W. E. 343. {(l) (1867), L. E. 2 C. P. 638 ; 36 L. J. C. P. 297; 16 L. T. 593; 15 W. E. 1016. 182 Code of the Law of Compensation. Sect. 68. Land not included in demise — com- pensation to lessee for interest injnriouslj' affected. Noise of school — depreciation in value of adjoining property. Land subject to restrictive covenant — land not taken injuriously affected. promoters, although the saleable value of his house was not thereb}' diminished. Where a lessee of a colliery had the right under his lease to sink a new pit in laud not included in the demise and gave notice to his lessor that he would sink the pit on the same day that the railway company entered into an agreement with the lessor for the purchase of the land, it was held that the lease created an interest in land in favour of the lessee, and that the railway company must pay compensation to the lessee for his interest, which had been injuriously affected — that is, for being prevented by the railway company taking the land from exercising therein the right given to him by the lease of sinking a pit (e). In assessing compensation a jury may take into consideration the depreciation in value of houses owing to the noise caused by children at a new school (/). ARTICLE 15.— Where promoters acquire land which the vendors hold subject to a restrictive covenant, and they commit a breach of the covenant, they may be liable for compensation for injuriously affecting land still remaining the property of the grantors to the vendors. This was so held in Long Eaton Recreation Grounds Company v. Midland Bailway Company (g). In that case part of certain lands belonging to the Long Eaton Recreation Grounds Company were sold by the company in fee simple subject to covenants that the grantees should not erect thereon any building other than private dwelling-houses and should not carry on upon them any noisy trade. These covenants were for the benefit of the land remaining the property of the company. The railway company acquired the lands sold by the recreation grounds company, but took none of the land still remaining the property of the recreation grounds company. On the land so acquired the railway company erected an embankment and a railway line over which it ran trains. The Court held that the erection of the embankment and the laying of the railway line was a breach of the covenant not to erect build- ings other than private dwelling-houses, and that the running of trains was a breach of the covenant not to carry on a noisy trade, and that the breach of these restrictive covenants amounted to an injurious affecting of land still remaining the property of the recreation grounds company. {e) In re Masters and the Great Western Raihoay Company [1901], 2 K. B. 64 ; 70 L. J. K. B. 516; 84 L. T. 515 ; 49 W. R. 499; 65 J. P. 420. (/) Jtef/. v. Pearce, Ex parte Lomlon School Board (1898), 67 L. J. Q. B. 842; 78 L. T. 681. ((/) [1902], 2 K. B. 574 ; 71 L. J. K. B. 837 ; 86 L. T. 873 ; 50 W. E. 693. The Lands Clauses Consolidation Act, 1845. 183 Where the promoters acquire the reversion of a lease which con- Sect. 68. tains a covenant for quiet enjoyment, but do not acquire the lessee's covenaut for interest, and the interest of the lessee is afterwards injuriously qmet enjo.v- ' . nient — com- affected by the works of the promoters, the lessee can obtain com- pensation to pensation under the Lands Clauses Consolidation Act, but cannot y^,fgfch of. bring an action for breach of covenant (h). ARTICLE 16. — In assessing compensation to parties whose premises Benefit may be injuriously affected by the works authorised by the special i^^^n.'iownei-' Act, the promoters are not entitled to set-off any benefit accruing cMimot be to the landowner by reason of the authorised works. compensT-' This question was first raised in Senior v. MetropoUtaii Baihrai/ Compmiy (i), where the premises of the plaintiff had been injuriously affected. Bramwell, B., said : " But I understand it is now- suggested on the part of the company, that although the obstruc- tion may have caused a temporary loss to the plaintiff, it may still turn out that ultimately there will be a benefit to the premises. I much doubt whether the company is entitled to a set-off of that description. Suppose the case of a tenant from year to year, or for a term of years, whose term happened to be co-extensive with the obstruction, is he to get no compensation for the loss sustained by him during the term '? Or take it in another way. Suppose a man has two houses, one injured by the company's work, and the other benefited. Is he to get no compensation for the one in- jured '? It aj)pears to me that the principle of set-oft" contended for is unsound." In Eaijlc \. Chari)ig Cross Uailicay Conq^iiti/ (k), in assessing compensation for a diminution of light to the plaintiff's premises, the umpire, after setting out that the phiintiff had sustained and would sustain in his trade a diminution of light, continued: "I find and award that, notwithstanding such diminution of light as aforesaid, the saleable value of the interest so claimed by Eagle in the said messuage and premises as aforesaid is not diminished." The umpire found that the value of the premises had been enhanced by the execution of the works, and did not award the plaintiff' any damages in respect of the diminution of light. The Court ordered that the above averment in his award be struck out, Montague Smith, J., characterising it as " impertinent." The principle of betterment has been considered by a select Beiterment. (/() Ma)irh€ster, Sheffidd, and Lincolnshire Railway Curnpaiiy v. Anderson [1898], 2 Ch. 394; 67L. J. Ch. 568; 78 L. T. 821. (0 (1863), 32 L. J. Ex. 225 ; 2 H. & C. 258 ; 8 L. T. 544 ; 11 W. E. 836; 9 Jut. X. 8. 802. (k) (1867), L. E. 2 C. P. 638 ; 36 L. J. C. P. 297 ; 16 L. T. 593; 15 W. E. 1016. 184 Code of the Law of Compensation. Sect. 68. Victoria — Lands Com- pensation Statute, 1869 — enhance- ment in value of adjoining land. Proviso in Light Rail- ways Act, 1896, for set-off of benefit to landowner. Landowner not entitled to compensa- tion for prospective injury where he terminates his interest. committee of the House of Lords, and the committee's report will be found in the Appendix (/). Clauses involving the principle of betterment have been inserted in various special Acts dealing with improvements in London and Manchester. In the colony of Victoria the Lands Compensation Statute, 1869, specially provides that, in assessing compensation, magistrates, juries, and arbitrators " shall take into consideration the enhance- ment in value of the adjoining land belonging to the person to whom compensation is to be made, or any other benefit or advantage which such person may or shall obtain by reason of the making of such works or undertaking in reduction of such compensation." It was held by the Privy Council, in Harding v. Board of Lands and Works (m), that in assessing, under the aforesaid Act, com- pensation for land compulsorily taken for a railway, the enhance- ment in value of the owner's adjoining lands may be set-off against the amount allowed for damage thereto arising from sucb com- pulsory taking or severance ; but may not be allowed against the compensation for the laud actually taken. A similar provision is contained in sect. 13 of the Light Kail- ways Act, 1896 (n). This is the section providing the mode of settling the purchase-money and compensation for taking of lands, and it contains the following proviso : " provided that in determin- ing the amount of compensation, the arbitrator shall have regard to the extent to which the remaining and contiguous lands and hereditaments belonging to the same proprietor may be benefited by the proposed light railway." ARTICLE 17. — A landowner cannot recover compensation for an injury which is merely prospective, where by his own act he terminates his interest in the land before it is damaged. So held in lieg. v. Poulter{o). Tbe facts in that case were as follows : A railway company commenced to build warehouses which were intended to be 100 feet in height. The lessee of a warehouse the light of which would be affected when the buildings were completed gave notice to the railway company that he held on a lease for an unexpired term of fourteen years, which could be determined by six months' notice, to expire on November 11th then next, and required the company to determine whetber they would take over the lease, or whether he should give the requisite notice. The company declined to interfere, and the lessee on (/) Appendix K., post. (m) (1880). 11 A. C. 208 ; 55 L. J. C. P. 11 ; 55 L. T. 225. (//) 59 & (iO Vict. c. 48, ;»-.s-/. (-') (1887), 20 Q. B. D. 132; 57 L. J. Q. B. 138; 58 L. T. 534; 36 W. E. 117; 52 J. P. 244. The Lands Clauses Consolidation Act, 1845. 185 May 6th gave notice to determine bis tenancy. There was no Sect. 68. evidence that at that time the building had progressed so far as to aflFect the light to the warehouse. Afterwards the lessee gave notice to the company of his claim for compensation for injuriously affecting his lands. It was held that the act of the lessee in giving notice to terminate his lease, not being the natural result of the acts of the railway company, but a free exercise of will on his part, did not entitle him to recover damage on the footing of his being entitled to a fourteen years' lease. ARTICLE 18, — Where a person has no greater interest in lands Xo greater than as tenant from year to year, and those lands are injuriously tenaD^t^from" affected by the works of the promoters who do not take the lands year to year or requii'e him to give up possession, he is entitled to have his ~u°o^gi compensation assessed under sect. 68, if he claims more than £50. affected— claim exceed- So held in Be(j. v. Slierijf of Middlesex {})). But where the ing £.50. promoters have taken or entered upon the land of a person having no greater interest than as tenant from year to year, he must obtain compensation in accordance with the provisions of sect. 121 (>y). ARTICLE 19. — Where land has been let on lease to a railway Lease of company at a yearly rental, and held over at the same rent after the Jenl^b^s^ro^f^ expiration of the lease, and the railway company subsequently give value. notice to treat for the same land, an umpire is entitled to consider the yearly rent as a basis upon which to calculate the value of the land. In Earl of Eldon v, Xortli-Eastern Piailicay Company {r) the predecessor in title of the plaintiif, by an indenture of May 29th, 1839, granted to lessees, whose interests became vested in the defendants, certain lands for a railway for twenty-one years at a yearly rental of £141 5s. The rent was paid regularly after the expiration of the lease. On October 3rd, 1890, the defendants served upon the plaintiff a notice to treat, and an arbitration took place under the Lands Clauses Act, 1815. Bruce, J., held that the umpire in making his award was entitled to consider the yearly rent of £141 Ss. as a basis upon which to calculate the value of the lands. ARTICLE 20. —Where promoters are acting within the powers of Promoters their special Act, they will not be restrained by injunction from ^.^l^^^^^lf^^^^ {p) (18G2), 31 L. J. Q. B. 261 ; 10 W. E. 717 ; 8 Jui-. N. S. 617. (7) Reg. V. Manchester, SJieffield, and LincohisJiire Puiilwaij Company (1854), 4 E. & B. 88 ; 2 W. E. 591 ;"l Jur. X. S. 419; Knapp v. London, Chatham, and Dorer Eaihcuy Com}>ani/ (1863), 2 H. & C. 212 ; 32 L. J. Ex. 236 ; 8 L. T. 541 ; 11 W. E. 890 ; 9 Jui-. N. S. 671. (r) (1899), 80 L. T. 723. 186 Code of the Law of Compensation. Sect. 68. be restrained by injunction from causing damage. Default by promoters in summoning causing damage, but parties injured must proceed under sect. 68 to recover compensation. lu Duke of Bedford v. Dawson (s) the plaintiffs sought to restrain the erection of a building on land acquired under a special Act, on the ground that it interfered with their ancient lights. It was held that they could not be restrained, and that the plaintiffs' reraedy was under sect. 68 of the Lauds Clauses Act. In Clark v. London School Board (t) Lord Selborne, L.C., said : " The general Act contains a scheme of provisions working out the right to compensation, and that scheme of provisions varies accord- ing to the subject-matter. In some clauses it is provided that when land is to be taken notice is to be given, and, if that notice is given, then there is a right to enter upon the land, and no injunction can be granted; but if there is an attempt to enter without notice, and without taking the proper steps, then an injunction may be granted." In Caledonian Ilailivay Companjj v. Walker's Trustees (») Lord Blackburn said: "Some things, I think, are now no longer open to discussion. No action can be maintained for anything which is done under the authority of the Legislature, though the act is one which, if unauthorised by the Legislature, would be injurious and actionable. The remedy of the party who suffers the loss is coutined to recovering such compensation as the Legislature has thought fit to give him. The Lands and Railways Clauses Acts of 1845 give some compensation. . . . And it must now be considered as settled that on the construction of these Acts, compensation is confined to damage arising from that which would, if done without authority from the Legislature, have given rise to a course of action." In Barnard v. Great Western Bailway Compu}itj{iv) the plaintiff applied for an injunction to restrain the defendant company fnan obstructing or interfering with the right of way over an occupation road, or from running trains or locomotives along the road. Ihe defendants had hiid down a line which passed along the occupation road, and ran trains along for the purpose of carrying plant. It was held that the plaintilf was not entitled to an injunction, but that his remedy was by compensation for damages under this section. ARTICLE 21.— Where the promoters do not summon a jury, the landowner can bring an action for the amount claimed as {») (1ST5), L. E. 20 Eq. 353 ; 44 L. J. Ch. 549 ; 33 L. T. 156. (0 (1874), L. E. 9 Ch. App. 120; 43 L. J. Ch. 421 ; 29 L. T. 908 ; 22 ^\. E. 354. {v) (1882), 7 A. C. 259 ; 4G L. T. 820 ; 30 W. E. 509 ; 4G J. P. 570. (V) (1902), 86 L. T. 798; 66 J. V. 568. The Lands Clauses Consolidation Act, 1845. 1^7 compensation where the lands have been taken and there has been Sect. 68. an actual entry on the lands, but not where a notice to treat has j^j^yZ^ion been given without entry. by landowner — entry on So held in Burkinshaw v. Birmbvjham and Oxford Junction llaihcay Company {x). In that case the plaintiff had been served with a notice to treat, stating that the company required to pur- chase and take bis land for the railway. The plaintiff afterwards served the company with a notice requiring them to issue their warrant to the sheriff to summon a jury to inquire into the value of the land, claiming to be paid by way of compensation for the purchase by them of the fee simple of the land. The company took no further step in the matter, and the plaintiff brought an action to recover the amount claimed as compensation. It was held that as the land had not been actually taken, or actually injuriously affected, by the company, within the meaning of sect. 68, the plaintiff was not entitled to recover compensation. In Beg. v. Manley-Smith, Be Church and London School Board (y), after notice to treat, the promoters gave notice of entering under sect. 85, and, in accordance with the requirements thereof, made a deposit and gave a bond, but did not actwdly enter on the lands. It was held, that the lands bad not been " taken," and that the word " taken " in sect. 08 means " actuully taken." If entry has been made after notice to treat, the landowner Entry gives has a right of action against the promoters for the amount i^Jght^ofTction claimed (^). for amount ,.,,.. , . !• f- , • claimed. As to what constitutes a " taking, it is a question ot tact in ^^.^^^^ each case. In Barker v. MetrojwUtan Bailuay Company {a) the constitutes plaintiff" was the lessor of premises occupied by a tenant from ^^^^S- year to year, and he received notice from the company that the premises were required for the pur|)oses of their undertaking. The company subsequently arranged with the tenant, and received from him the key. The plaintiff' gave the company notice of the amount of her claim and the nature of her interest in the premises, and required them to issue their warrant to the sheriff to summon a jury. Upon their neglecting to do so she brought an action for the sum claimed. It was held that these facts warranted the jury in finding that the company had actually taken the premises, and were consequently liable for the amount claimed. (x) (1850), 5 Ex. 475 ; 20 L. J. Ex. 246 ; 12 L. T. 210 ; G E. C. 600. (y) (1892), 67 L. T. 197 ; 40 W. E. 333 : 56 J. P. 729. (2) Eatdu V. MidJund Great Western liailiray Compuny (1847), 10 L. E. (Ir.) 310. (a) (1864), 17 C. B. N. S. 785; 11 L. T. 345 ; 13 W. E. 82; 10 Jur. X. S. 1126. 188 Code of the Law of Compensation. Sect. 68. "Take" means " actually take." Promoters may not plead that claim is not bond fide. The Court will not restrain assessment of compensation on ground that claimant has no title, &c. In Standislt v. Mayor of Liverpool{h), where the contractor to tlie corporation, without the knowledge of the latter, brought waggons, rails, and other implements on the land, and left them there, but did not commence work or do any damage, and he had the consent of the occupying tenants, it was held that the acts done did not constitute a taking possession within the meaning of the Act. In Spencer v. Metropolitan Board of Works (c-) Bowen, L.J., said: **In sect, 68 the word 'taking' occurs, and it is clear from Burkinshaw v. BirniingJiani and. Oxford Junction Railway Company (d), that in that section 'take' means 'actually take,' as distinct from serving a notice to treat or any other kind of constructive taking." If an action is brought against the promoters for failure to issue their warrant to the sheriff to summon a jury, they may not plead that the claim is " not a bond fide claim within the statute, but in fraud of the defendants and without reasonable cause "(«). ARTICLE 22. — A claimant will not be restrained by Injunction from having compensation assessed because the promoters allege that he is claiming in respect of a wrong title or in respect of an interest for which he is not entitled to compensation. The question of the validity of the owner's title, or any other legal question, is not determined at the inquisition, but is left to be determined in subsequent proceedings. This was first finally settled by Lord Truro in Kast and West India Dock Company v. Gattke{f), and has been followed in all the subsequent cases. In London and Blackwall Railicay Company v. Cross (g) Lindley, L.J., said : " Leaving out of consideration the fact that Mr. Cross is professing to act as attorney for the company, let us take the case where a person having no right to compensation, nevertheless claims compensation under the Lands Clauses Act, and proceeds under the arbitration clauses in that Act, and where the railway against whom he is proceeding contend that whatever award he may get from the arbitrator, he is not entitled to any compensation (/') (1S52), 1 Drew. 1. (c) (1882), 22 Ch. I). 142 ; 52 L. J. Ch. 249 ; 47 L. T. 549; 31 W. R. 347. ('/) Hupra. (f-) HiHtinr V. Thi' Jirlstol Port lUuhniij (okI Pin- Comumnj (186G), 35 L. J. C. P. 299. (/) (1851), 3 :N[. & G. 155 ; 20 L. J. Ch. 217; E. C. 371 ; 15 Jnr. 261. See also Sontli Stdfinlshirc Itdihnai/ ('ainpavi/ v. I/((lf (1851), 20 L. J. Ch. 397 ; G R. C. 359 ; London and Jihicknudl litdhvay Cavipany v. Cross (1886), 31 Ch. D. 354 ; 55 L. J. Ch. 313 ; 54 L. T. 309 ; 34 W. R. 401 ; Birviinrjham and Disfrirl fAind Cainjiani/ v. London and North-Wtstern Railway Cornpanu (1888), 40 Ch. D. 268 ; 57 L. J. Ch. 106. (ite ■^ Till.- enacting that ceeding shall be commenced against a public body or local authority proceedings except vsrithin a fixed period after accrual of the cause of action, "^^^J^^^^^^^^ does not apply to a demand to have compensation assessed under the within a fixed Lands Clauses Consolidation Acts. period against local In Dclanu v. Metropolitan Board of Works (k) it was held that a authority does ' 1 • 1 T 1 '^ apply to claim and demand for arbitration for damage done to buildings by demand for the Metropolitan Board of Works, acting under their statutory "/nderLamls powers, was not such a proceeding against the Metropolitan Board Cianses Con- , . , . T 1 T 1 1 -xi • polidation of Works as to render it necessary that it should be made within ^^^j, six months, which was the limit of time fixed by the Metropolis Management Amendment Act, 1862, for commencing actions or proceedings against the late Metropolitan Board of Works. The same reasoning as was adopted in that case would, it is ^"|^/'« .,. ^ '■ . Authorities submitted, apply to a claim for arbitration against a public Protection authority after the expiration of the six months fixed by sect. 1 ^ots not apply of the Public Authorities Protection Act, 1893. to demand for arbitration ARTICLE 24.— An owner of lands taken by promoters under their ",^^^^Jgg^J"jJf compulsory powers is entitled to interest on amount awarded from soiidation the time the promoters enter upon the lands until date of payment, ^^ts. although no claim for interest was made at time of execution of ^^^[0^^^ ^'^ conveyance. awarded— estoppel. This was decided in an Irish case arising under the Kailways (Ireland) Acts, 1851—1860 {I). (h) Supra. (/) Per Lindley, L.J., and the Coui't of Appeal iu Kitts v. Moore [1895], 1 Q. B. 253 ; 64 L. J. Ch. 152 ; 71 L. T. 676 ; 43 W. E. 84. (A-) (1867), L. R. 2 C. P. 532 ; L. E. 3 C. P. Ill ; 37 L. J. C. P. 59 ; 17 L. T. 262; 16 W. E. 137. {!) Baltimore Extension Railway Company, Ex parte Daly [1895], 1 Ir. L. E. 169 190 Code of the Law of Compensation. Sect. 68. Costs. Where claim- ant has no right to com- pensation. Sect. 69. A/)/iHratiii/i of compenxa- iion. Purchase- money pay- able to parties under disability amounting to £200 to be deposited in the bank. ARTICLE 25. — The costs of proceedings under sect. 68 are to be borne as provided by sect. 51. This was decided in Richardson v. South -Eastern Raihcai/ Company (m), in which case it was held that, although no provision is made by sect. 68 as to the costs of the inquiry, yet that section by reference embodies sect. 51. Parke, B., said : *' The provisions respecting the summoning of a jury are contained in sects. 51 and 52, and other clauses. Section 68, therefore, clearly applies, amongst others, to sects. 51 and 52 ; and sect. 51 provides that on every inquiry before a jury under this statute (for that is the meaning of the expression 'on every such inquiry') 'where the verdict of a jury shall be given for a greater sum than the sum previously offered by the promoters of the undertaking, all the costs of such inquiry shall be borne by the promoters of the under- taking.' This is a case in which it is averred by the declaration that an offer had been made by the company of M60, and that a verdict has been given for a greater sum. We think, therefore, that the plaintiffs are entitled to their costs of the inquiry in consequence of sect. 68 incorporating sects. 51 and 52 into itself." Where the claimant has no right to compensation, he is not entitled to any costs (??). And with respect to the purchase-money or corapeiisa- tion coming to parties having limited interests, or prevented from treating;, or not makiiio- title, be it enacted as follows : 69. If the purchase-money or compensation which shall be payable in respect of any lands or any interest therein, purchased or taken by the promoters of the undertaking from any corporation, tenant for life or in tail, married woman seised in her own rio;ht or entitled to dower, guardian, committee of lunatic or idiot, trustee, executor or administrator, or person having a })artial or qualified interest only in such lands, and not entitled to sell or convey the same except under the provisions of this or the Special Act, or the compensation to be paid for any permanent damage to any such lands, amount to or exceed the sum of two hundred pounds, the same shall be paid into the bank, in the iianie and with the ])rivity of the Accountant-General (m) (1852), 11 C. B. 154; 21 L. J. C. P. 122; 15 Jur. 660; followed in Jldt/irunl V. Mi'fropulitdv Rftlliray Comjxini/ (1N64), 33 L. J. Q. B. 73 ; 4 B. & S. 787 ; 9 L. T. 680 ; 12 W. II. oil '; 10 Jur. N. S. 418. (//) Todd V. Mft )■,>],(>! it'll, JliiilHHiij Cmpaiii/ (1871), 24 L. T. 435 ; 19 W. E. 720. See also Sliurjie v. 3I'tropo/itaii jiailwdi/ Comjniny (1879), 4 Q. B. D. 645, 652 ; 5 A. C. 425 ; 50 L. J. Q. B. 14 ; 43 L. T. 617 ; 29 W. R. 617 ; 44 J. P. 716. The Lands Clauses Consolidation Act, 1845. 191 of the Court of Chancery [in Eiujland if the same relate to sect. 69. lands in England or Wales, or the Accountant -General of the Court of Exchequer in Ireland if the same relate to lands in Ire- land,] to be phiced to the account there of such Accountant- General, ex parte tlie promoters of the undertaking (describ- ing them by their proper name), in the matter of the Special Act (citing it), pursuant to the method prescribed by any Act for the time being in force for regulating moneys paid into the said Courts ; and such moneys shall remain so deposited until the same be applied to some one or more of the following purposes ; (that is to say,) In the purchase or redemption of the land tax, or the Application Ti n 11- 1 ir • i^^f moneys discharge oi any debt or incuml)rance aiiectmg the deposited. land in respect of which such money shall have been paid, or affecting other lands settled therewith to the same or the like uses, trusts, or purposes ; or In the purchase of other lands to be conveyed, limited, and settled upon the like uses, trusts, and purposes, and in the same manner, as the lands in respect of which such money shall have been paid stood settled ; or If such money shall be paid in respect of any buildings taken under the authority of this or the Special Act, or injured by the pi'oximity of the works, in removing or replacing such buildings or substituting others in their stead, in such manner as the Court of Chancery shall direct ; or In payment to any party becoming absolutely entitled to such money. The words in italics have been repealed by the Statute Law Eevision Act, 1892. The Paymaster-General is substituted for the Accountant-General Paymaster- Geueral. by the Court of Chancery Funds Act, 1872 (o). Where money is paid into Court under the Lands Clauses Act, Money may , , . , be applied as in respect of land subject to a settlement, it may be applied as provided in provided by the Settled Land Acts, 1882—1900 (p). Land Actf ARTICLE 1.— If the promoters do not pay the money into a bank, ^)^'^^7i„,„/to a mandamus will lie to compel them. compel pro- moters to pay So held in Ikirnett \. Great Eastern llaihvay Compani/ [q). money in. (o) 35 & 3H Yict. c. 44, ss. 4, 6. (/-) The mateiial sections of the Settled Land Acts, 1882, 1887, and 1900 ■will be found in Aj^pendix C, jmst. iq) (1868), 18 L. T. 408 ; 16 W. E. 793. See also Stone v. Yi-oviJ ('■^rpm-a- tion (1876), 2 C. P. D. 99; 46 L. J. C. P. 137 ; 36 L. T. 279 ; 25 W. E. 240. 192 Code of the Law of Compensation. Sect. 69. Land pur- chased from lunatic — pay- ment to credit of the lunacy and not into Court. Purchase- money paid to tenant in tail of land. Money paid to vendors under protest. Land pur- chased under agreement. Purchase- money retains its character of realty. Where land belonging to a lunatic bad been purchased by a railway company, an order was made for payment of the purchase- money to the credit of the lunacy without its being first paid into Court {}•). James, L.J., said : "We are of opinion that the com- pany will acquire as good a title as if there was a payment into Court under sect. 69 of the Lands Clauses Act, but the petition must be amended so as to be intituled in the Chancery Division as well as in Lunacy, and in the matter of the Railway Act as well as in the matter of the lunatic." In Ex jMvte Earl of Ahergdvenny (•?) purchase-money which ought to have been paid into Court, having been paid to the tenant in tail of the land, was, on his petition, ordered to be invested in land. Where the promoters had paid the purchase-money under protest to the vendors, the latter were ordered to bring the money into Court (0. ARTICLE 2. — Where the promoters have entered into a special agreement to purchase lands, payment into Court of the purchase- money is not right. So held in Newton v. Metrojwlitan Railway Company (u), where a landowner agreed with the company to sell, but died before the conveyance was executed. ARTICLE 3. — Purchase-money paid into Court by the promoters under sect. 69 retains its character of real estate. So held in Kelland v. Fidford (x) where the land taken belonged to an infant who was absolutely seised in fee. Jessel, M.R., held that the purchase-money in Court descended to the heir-at-law of the infant on the death of the latter. Where a person was convicted of felony before he became entitled to his share of the purchase-money in Court, it was held that the share retained the character of realty, and was, in consequence, not forfeited to the Crown (y). (r) In re Milnes (1875), 1 Ch. D. 28 ; 34 L. T. 46 ; 24 W. E. 98. {«) (1856), 4 W. R. ;}15. it) LoiHlon mid Norih-WeHicrn Rallvay CcmjKoiy \. Lancaster Corporation (1851), 15 Bear. 22 ; 16 Jur. 677. ill) (1862), 8 Jur. N. S. 738. See also Er parte Hairkhis (1843), 13 Sim. 569 ; ]V„tt.i v. Waits (1874), L. R. 17 Eq. 217 ; 43 L. J. Ch. 77 ; 29 L. T. 671 ; 22 W. R. 105. (x) (1877), 6 Ch. D. 491; 47 L. J. Ch. 94; 25 W. R. 506. See also MiiUand Counties Raihvay Comjmny v. Oswin (1844), 13 L. J. Ch. 209 ; 1 Coll. 80 ; 3 R. C. 497 ; 8 Jur. 138 ; lii re East Lincolnshire Railway Act (1851), 1 Sim. N. S. 260. (//) In re Harrops Estate (1857), 3 Drew. 726 ; 26 L. J. Ch. 516 ; 5 W. R. 449 ; 3 Jur. N. S. 380 ; Re Walker's Estate (1853), 1 Drew. 508; 22 L. J. Ch. 888; 1 W. R. 378; 17 Jur. 706. The Lands Clauses Consolidation Act, 1845. 193 Where a fund iu Court had been forgotten, it was held that the Sect. 69. principal fund was impressed as real estate, and the accumulated where fund dividends as personal estate (z). in Court had been for- ARTICLE 4.— The word "settled" in sect. 69 means "standing ^°"^"- ,. •, J ,, "Settled" limited. u^eans So held by Jessel, M.E., in Kellaiid \. Fidford{a), where he [^^Sj'" said : " The word ' settled ' does not mean * in settlement,' in the usual sense of the term, but it means simply ' standing limited.' It must mean that, or it would not in general apply to the case of a corporation, or of a married woman seised in her own right, or of a trustee, guardian, or committee, or in fact to half the cases mentioned in the previous part of the section. Then the section goes on, ' or in the purchase of other lands to be conveyed, limited, and settled ... in the same manner as the lands in respect of which such money shall have been paid stood settled,' meaning * stood limited,' for the same reason that otherwise it would exclude half the cases previously mentioned." In the same case, Jessel, M.R., explains the cases to which Jessel, M.K., sect. 69 applies. He said : " It applies to purchase-money or com- cL^^to which pensation in respect of lands taken from, first, a corporation which, ^^^^- ^^ 1-1 n ■ ^^ • i T i f ^ ^ ■ ^ i ■ applies. not bemg benencially entitled, has no power ot sale, or which, being under some statutory disability, cannot sell ; then a tenant for life or in tail — that is, a tenant in tail incapable of selling, as, for instance, where estates are settled and made inalienable by Act of Parliament, and a tenant in tail who is prevented by law from selling, as, for instance, a tenant in special tail after possibility of issue extinct, who for all purposes of alienation is considered merely as a tenant for life ; then, again, a married woman seised in her own right or entitled to dower, who cannot sell except with the concurrence of her husband, they being together owners in fee ; then a guardian or committee, neither of whom can sell for himself ; then a trustee, executor, or administrator, who may have the entire fee simple like a corporation, and yet may not be able to sell. Thus we find that the great majority of the persons here described are persons taking under no settlement, and having no settled estate at all in the real sense of the term." ARTICLE 5. — A tenant for life who has redeemed the land tax Redemption may reimburse himself out of the proceeds of the lands purchased ^^^ land tax by of him by the promoters. life. So held in Ex parte Northwick{h). The tenant for life had ^^'^'^^ , -^ ^ ' appucation to (z) Dixie V. Wriyht (1863), 32 Beav. 662. («) (1877), 6 Ch. D. 491 ; 47 L. J. Ch. 94 ; 25 W. E. 506. (6) (1834), 1 Y. & C. (Ex.) 166. L.C. 13 194 Code of the Law of Compensation. Sect. 69. Court to reimburse. Redemption of land tax with pur- chase-money for glebe land. Reinvest- ment in new buildings. Necessary and substantial repairs. Expenses incurred under an Inclosure Act. Rebuilding rectory. redeemed the land tax prior to tlie passing of the special Act. He was also allowed the costs of the application to the Court. Where a railway company took glebe land, the Court allowed the purchase-money to be invested in the redemption of land tax ((') . ARTICLE 6. — The purchase-money may be reinvested in new buildings where the investment is for the benefit of all parties and the remaindermen do not object. This was decided in Drake v. Trefusis (d). The Court will not sanction money being laid out in repairs or in permanent improve- ments which do not involve placing new buildings on the land. In all cases where the reinvestment is in any investment other than land, the remaindermen must be sei'Yed (dd). Where the investment is unproductive, the applicants must prove that it is for the benefit of the cestuis que trust (e). Where money had been expended in necessary and substantial repairs by the tenant for life, to prevent the property being sold, the money in Court may be ordered to be paid over to him (/'). In Ex parte Lockwood (r/) the Court sanctioned the application of the money in Court to the payment of expenses incurred under an Inclosure Act. The purchase-money for glebe lands may be applied in building a rectory (It). Where it will be a permanent and beneficial im- provement, the Court will sanction the application of the purchase- money in defraying part of the cost of erecting farm buildings on the remainder of the land (i). (c) In re Vkar of Queen Camel (1863), 8 L. T. 233 ; 11 W. E. 503. {rl) (1875), L. E. 10 Ch. App. 3G4 ; 33 L. T. 85 ; 23 W. E. 762. See also In re Lei) Ex parte King's College, Cambridge [1891], 1 Ch. 333, 677 ; 60 L. J. Ch. 508 ; 64 L. T. 623 ; 39 W. E. 331. (?) In re London County Council, Ex parte Partington (1901), 84 L. T. 808; 17T. L. E. 614; 65 J. P. 536. (r) (1876), 2 Ch. D. 225; 24 W. E. 723. 13—2 196 Code of the Laio of Compensation. Sect. 69. Rent-charge on glebe lands — pay- ment off refused. devoted to the restoration of the chancel, and in paying off the money horrovred from the Governors of Queen Anne's Bounty, was refused. In Ex parte Rector of Kirksmeaton (s) an application to apply the purchase-money for glehe lands in paying off a rent-charge on the glebe lands was refused, the rent-charge being only repayable by instalments. Payment off ARTICLE 7. — The Court may allow the purchase-money paid into of mortgages, (jourt under sect. 69 to be applied in the payment oflF of mortgages. In In re Derby Municipal Estates (t) the Court allowed the purchase-money of lauds taken from a corporation to be applied in the payment off of mortgages of certain tolls and of bonds which had been given by the corporation for moneys borrowed under the Baths and Washhouses Act (9 & 10 Vict. c. 74), and which were payable out of the borough fund, the latter being largely com- posed of the rents and profits of the real estates of the corporation. In Ex parte Cambridge Corporation, In re Eastern Counties Raihcai/ Company (u), it was held that money paid for the com- pulsory purchase of part of the lands of a corporation may be applied in redemption of an incumbrance upon another part of the lauds of the same corporation. The purchase- The purchase-money cannot be applied to the purchase of an be'aDDHed'in^ equity of redemption, or in part payment of another estate which purchase of was to be mortgaged as a security for the remainder of the purchase- money (x). equity of redemption Terminable rent-charge for improve- ments on glebe land — application of purchase- money. Tithe rent- charge. ARTICLE 8. — The Court may allow the purchase-money to be applied in the discharge of terminable rent-charges on the glebe created in respect of improvements by the vicar. So held in Ex parte Vicar of Castle Bythani (y), where land had been allotted to a vicar under an Inclosure Act, and subsequently acquired by the promoters of an undertaking. In such a case the patrons of the living must be served (yy). A tenant for life of settled lands was not allowed to have the money in Court applied in redemption of a perpetual tithe rent- (s) (1882), 20 Ch. D. 203 ; 51 L. J. Ch. 581 ; 20 W. E. 539. See also /n re Commissioners of Public lVo7-ks (1856), 6 Ir. Ch. 53. (0 (1875), 3 Ch. D. 289; 24 W. E. 729. {u) (1848), 6 Hare, 30 ; 5 E. C. 204. See also In re DuhJin, WicMow, and Wexford Railwai/ Company, Ex jutrte Ridiards (1890), 25 L. E. Ir. 175. {x) Ex parte Craven, In re Cheltenham and Great Western Railway Company (1848), 17 L. J. Ch. 215. 0/) [1895], 1 Ch. 348; G4 L. J. Ch. 116; 71 L. T. 606; 43 W. E. 156 ; 13 E. 24. {yy) Ex parte Vicar of Castle BytJiam, snjyra. The Lands Clauses Consolidation Aet, 1845. 197 charge under the Irish Church Act, 1869 (-?), but in another case the money was allowed to be invested in tithe rent-charges issuing out of lands in strict settlement (a). In In re Commissioners of Public Works (h) the money in Court was allowed to be applied in redeeming an annual quit rent, on the ground that the quit rent was an incumbrance on the land. ARTICLE 9.— A lessor who has a right of re-entry is an incum- brancer within the meaning of sect. 69. So held in Re London-Street, Greenwich, and the London, Chatham, and Dover Railway Act, 1881 (c). In Ex j)arte Sheffield Corporation, In re Manchester, Sheffield, and Lincolnshire Railway Company (d), it was held that an old existing lease is an incumbrance on improved lauds. ARTICLE 10. — The purchase-money may be applied in obtaining the surrender of a lease on the lands of the vendors. This was decided in Ex parte Sheffield Corporation {e) and followed in Ex parte London Corporation (/). ARTICLE 11. — The purchase-money in Court may, with the sanction of the Court, be laid out in the purchase of copyholds. In In re Canns Estate (g) Knight Bruce, Y.-C, held, that although sect. 69 of the Lands Clauses Consolidation Act did not authorise the investment of the purchase-money of a freehold estate in copyhold property, the Court would nevertheless sanction it where the Master reported that such an investment was fit and proper and for the benefit of the persons interested. If copyhold lands are taken an order may be made for re- investment of the money in other copyholds ; but although the promoters must pay the costs of the purchase and reinvestment, they are not liable to pay the fine upon the admission to the copy- holds (/i). Sect. 69. Quit rent. Lessor with right of re-entry an incum- brancer. Old lease an incumbrance on improved lands. Purchase- money applied in obtaining surrender of lease. Purchase of copyholds. Where free- hold land taken. Where copy- hr.ld land taken. Promoters not liable for fine upon admission. (z) III re JJubliit, Wickloiv, and Wexford Railway Company, Ex 'parte Totten- ham (1884), 13 L. E. It. 479. (a) In re Commissioners of Church Ternporalities in Ireland, Ex parte Lord Lecon field (1874), Ir. E. 8 Eq. 559. {h) (185(3), 6Ir. Ch. 53. (c) (18«8), 57 L. T. 673. {d) (1855), 25 L. J. Cli. 587; 21 Beav. 162 ; 4 W. E. 70 ; 2 Jui-. N. S. 31. (e) Supra. if) (1868), L. E. 5 Eq. 418 ; 37 L. J. Ch. 375 ; 17 L. T. 489 ; 16 W. E. 355. See also Ex jiarte Bishop of London (1860), 29 L. J. Ch. 575 ; 2 De G. F. & J. 14 ; 2 L. T. 365 ; 8 W. E. 465 ; 6 Jur. N. S. 640 ; Re ToivnsheruVs Estates (1882), W. N. 7. {(/) (1850), 19 L. J. Ch. 376 ; 15 Jur. 3. (/i) Ex parte Vicar of Sawston (1858), 27 L. J. Ch. 755 ; 6 W. E. 492; 4 Jur. X. S. 473. See aLso Re Browne and Oxford, t&c, Railway Ads (1852), 6 E. C. 703; 16 Jui-. 158. 198 Code of the Law of Compensation. Sect, 69. Where lease- hold land taken. Purchase- money applied in enfranchise- ment of other copyholds. Freehold and copyholds taken — money may not be reinvested in leaseholds. Where petitioners are absolutely entitled Court may sanction reinvestment in leaseholds. Lands of a charity taken — reinvest- ment in land. In In re Coytc's Estate (?) money paid into Court for the pur- chase of leaseholds was ordered to be reinvested in the purchase of copyholds. In Dixon v. Jackson (Jc) the purchase-money in Court was allowed to be applied in enfranchising other copyholds belonging to the vendor. Kindersley, V.-C, held that " an enfranchisement is in fact such a purchase of other hereditaments as may fairly come within the words of the Lands Clauses Act." ARTICLE 12. — Where freehold or copyhold lands are taken by promoters the purchase-money may not be reinvested in leasehold property. So held in Ex i)arte Macaulay, In re Lancashire and Yorkshire Railway Comjiany (I). An exception appears to have been made in Ex imrte Trinity College, Cambridge (m), where the Court allowed the purchase- money of land belonging to the petitioners, the tenure of which did not appear, to be reinvested in a leasehold brickfield, with 977 years to run, and which adjoined a college living. Where the petitioners were absolutely entitled the Court allowed the purchase-mone}^ of a freehold chapel to be invested in the pur- chase of a leasehold chapel in the vicinity, there being a difficulty in obtaining a suitable freehold site for a new chapel (n). ARTICLE 13.— The purchase-money of lands belonging to a charity may be dealt with under sect. 32 of the Settled Land Act, 1882, as " money liable to be laid out in the pui'chase of land to be made subject to a settlement." So held in In re Byron's Charity (o), where Fry, J., said: " The 32nd section of the Settled Land Act must be read in con- nection with sect. 69 of the Lands Clauses Act, which, providing for the application of ' purchase-money or compensation coming to parties having limited interests or prevented from treating,' enacts that the money shall be applied in the discharge of incumbrances * affecting the land in respect of which such money shall have been (»■) (1851), 1 Sim. N. S. 202. (/.■) (1850), 25 L. J. Ch. 588; 4 W. R. 450. See also In re Cheshnnt College (1855), 3 W. E. 638 ; 1 Jur. N. S. 995. (/) (1854), 23 L. J. Ch. 815 ; 2 W. R. 667. (m) (1868), 18 L. T. 849. {„) lu re Ilehohoth Chapel (1875), L. E. 19 Eq. 180; 44 L. J. Cli. 375; 31 L. T. 371 ; 23 W. E. 405. (o) (18cs;}), 23 Ch. D. 171 ; 53 L. J. Ch. 152; 48 L. T. 517; 31 W. E. 317; followed in In re Bethlehem and Brideivell Hospitals (1885), 30 Ch. D. 541 ; 54 L. J. Ch. 1143; 53 L. T. 558; 34 W. R. 148; and Ex parte Jesus Collcye, Camhrhhie (1884), W. N. 37; 50 L. T. 583. See also Ex parte Vicar of Castle Bi/tham [1895], 1 Ch. 348; 64 L. J. Ch. 116; 71 L. T. 606; 43 W. E. 156 ; 13 R. 24. Per Settled Land Acts, see Appendix C, j^ost. The Lands Clauses Consolidation Act, 1845. 199 paid, or affecting other lands settled therewith to the same or the Sect. 69. like uses, trusts, or purposes,' so that this money is ' settled ' within the meaning of the Lauds Clauses Act, and therefore it is within the provisions of sect. 32 of the Settled Land Act." ARTICLE 14. — The purchase-money in Court may be reinvested Eeinvest- • 1 T • it- T 1 ^ ■»«• raent in land in land m the Isle oi Man. inlsleof Man. This is ou condition that the reinvestment is otherwise unobjectionable (7))- ARTICLE 15. — Where the works of the promoters pass through Substitution land rendering the buildings on one part inconvenient for the other, ^ ° ' the compensation-money may be applied in the erection of new buildings on that part of the land which requires them. So held in /// re Oxford, Worcester and Wolverhampton Puidwaij Company {q). The railway company were not ordered to pay the costs. The procuring and fitting up of houses for the temporary Substitute accommodation of the patients of a hospital whose original buildings have been taken by promoters is a proper reinvestment within the terms of sect. 69 (r) , In Ex parte Bicester Overseers {s) the Court, before making an order for the erection of buildings in substitution for others, ordered a reference to a master to consider whether the buildings should be erected. ARTICLE 16. — In exceptional circimistances the Court will Reinvest- sanction the reinvestment of purchase-money in railway stock and ™^^^ ^" F^'^" ^ •' . •' way stock, treat such reinvestment as equivalent to a reinvestment in land. So held in In re Burldnfjham (t), where a reinvestment in railway stock was allowed to prevent a diminution in a lunatic's income. ARTICLE 17.— The words "in payment to any party becoming "Person absolutely entitled to such money *" means '-entitled to his or her ''^^''!?A'i^!^ own use." meaning of. So held by Jessel, M.Ii., in Kelland v. Fulford («)• A dowress is a person absolutely entitled to her share of the Dowress. capital money in Court {x). (p) In re T). ^^^ ® * (<) (1848), 5 E. C. 702. (w) (1848), 2 De G. & Sm. 365 ; 5 E. C. 692 ; 12 Jui-. 1042. (x) Ex parte Vicar of East Dereham (1852), 21 L. J. Ch. 677; /u re Martin's Estate (1853), 22 L. J. Ch. 248; 1 W. E. 45; 17 Jur. 30; In re Blomfiehl (1876), 25 W. E. 37 ; Be Bheffiehl and Rotherham Ihnhvay Coinjianij (1853), 1 Sm. & G. App. IV. ; In re Cadilirl- (1852), 9 Hare, App. IX. ; 1 W. E. 47 ; 16 Jur. 965. (y) In re Frankhjn's Settli-meut (1847), 1 De G. & Sm. 528; 17 L. J. Ch. 166 ; 5 E. C. 206 ; 12 Jur. 642. (z) Bradshawe v. Fane (1862), 1 N. E. 159 ; 3 Dr. 534 ; 9 Jiu'. N. S. 166 ; Re Bowes (1864), 10 Jm-. N. S. 817. (zz) In re Dylars Estate (1855), 1 Jiu\ N. S. 975. (a) In re Gore-Lancjton's Estates (1875), L. E. 10 Ch. App. 328 ; 44 L. J. Ch. 405 ; 32 L. T. 785 ; 23 W. E. 842 ; In re Ilalstead United Cliarities (1875), L. E. 20 Eq. 48 ; Ex parte Jones (1880), 14 Ch. D. 624 ; 43 L. T. 84 ; In re Olive's Estate (1890), 44 Ch. D. 316; 59 L. J. Ch. 360; 62 L. T. 626; 38 W. E. 459. (h) Ex parte Maidstone, L^ T-TT 1-1,. Ti- vestment and pensation, and tor payment oi the dividends to himseli and his accumulation successors. The houses were subject to leases with thirty years ^^ pi^irchase- unexpired, and the Court directed investment and accumulation of the money. In Ex parte Precentor of St. Paul's (/) it was held that where Fines on lands on lease, subject to a customary right of renewal upon pay- lea^e— na - ment of fines, have been taken under the Lands Clauses Act, 1845, "lent of an sect. 74 empowers the Court on the occurrence of every period at of fuixUn^" which, if the land had not been taken, the lease might have been Court, renewed, to authorise the payment out of the fund in Court of an equivalent to the fine payable on such renewals. In Ex parte St. Thomas's Church Lands, Bristol, and Ex parte Dividends the Trustees of Temple Church Lands, Bristol {[/), where the lauds paStocharitv taken were vested in charity trustees, the Court, in the exercise of trustees. its discretion under sect. 71, ordered the money to be invested, and the dividends to be paid to the trustees instead of being accumulated. ARTICLE 2. — Where settled leasehold lands are taken the tenant Compulsory for life is entitled to receive from the funds in Court an annuity of ^^^^ ^f lease- such an amoimt that the payment of it would exhaust the fund in the interest of number of years that the leaseholds have to run. tenant for life. The question of the interest of a tenant for life in the proceeds of the compulsory sale of leaseholds came before the Court of Appeal in Askew V. Woodhead (It). In that case the petitioner was entitled for life under a marriage settlemf " t to leaseholds which had eight years to run. The leaseholds we'-; ju under the powers of the Lands Clauses Consolidation Act. xhe purchase-money was sufficient to provide an annuity for eight years much larger in amount than the net annual proceeds of the leaseholds. The Court of Appeal held that the petitioner was entitled to receive an annuity of such an amount that the payment of it would exhaust the fund in the W (1846), 4 E. C. 231. (/) (1855), 1 K. & J. 538 ; 24 L. J. Ch. 395 ; 1 Jur. N. g. 444, gee also Ex 'purte Bishop of Windmter (1852), 10 Hare, 137; 16 Jur. 649; Ex parte Ward (1848), 2 De G. & Sm. 4 ; 17 L. J. Ch. 249 ; 5 E. C. 398 ; 12 Jur. 322. i!j) (1870), 23 L. T. 135. (A) (1880), 14 Ch. D. 27 ; 49 L. J. Ch. 370 ; 42 L. T. 567 ; 28 W. E. 874 ; 44 J. P. 570 ; approving In re Phillips' Trusts (1868), L. E. 6 Eq. 250, and not approving //* re Pfiojer (1868), L. E. 6 Eq. 426 ; and followed in In re Hunt's Estate (1884), W. N. 181 ; In re Walsh's Trusts (1881), 7 L. E. Ir. 554; In re South City Market Company (1884), 13 L. E. Ir. 245. See also little- tvooclY. Pattison (1864), 10 Jur. N. S. 875; Be Treacher's Settlement (1868), 18 L. T. 810. ^ ^ 218 Code of the Law of Compensation. Sect. 74. Leasehold renewable in perpetuity. Term cndin.i^ in lifetime of life tenant. Death of life tenant who has only received dividends. Annuity charged on leasehold. number of years Avhich the leaseholds had to run. Jessel, M.R., said : " The question before us is, what is the proper construction of the seventy-fourth section of the Lands Clauses Consolidation Act, 1845. [His Lordship read the section.] I will first consider the simple case of a leasehold settled upon a person for life with a limitation over on his death to another person absolutely. When a property so circumstanced is purchased by a company, what mode of dealing with the purchase-money will give the parties interested the same benefit as nearly as may be as they would have had from the lease ? This result would clearly be attained by investing the money in the purchase of an annuity having as many years to run as there were years remaining in the term, and by paying it to the tenant for life, and after his death, if the tenant for life dies within the term, then to the remainderman. Generally an annuity cannot thus be purchased which will bring in as large an income as the leasehold, but sometimes it can. The same principle, however, must apply whether the income is more or less. If an annuity is not actually bought it must be referred to an actuary to calculate what yearly sum, if raised out of the dividends and corpus of the fund, will exhaust the fund in the number of years which the lease has to run, and tbe amount so ascertained must be paid to the tenant for life." In lie JVood's Estate (/) the tenant for life was only allowed the dividends, and was not allowed, owing to the lands having been sold, to be recouped the diminution in income out of the cor2)i(s of the fund. The ground of the decision was that in that case the promoters had not purchased a terminable estate, as the lease was renewable in such a way that the property was held in perpetuity ; and the Court would not allow a part of the corpus belonging to the remaindermen to be interfered with to make good the diminished income of the tenant for life. In 1)1 re Beaufoy (/.•), where the term ended in the lifetime of the tenant for life, and she had only received the dividends, she was held entitled to the corpus. "Where the tenant for life dies before the term ends and has only received the dividends, the personal representatives of the tenant for life are entitled to a portion of the corpus in respect of the years during which the tenant for life received dividends, and the residue of the corpus is payable to the remaindermen [1). Where an annuity is secured on leasehold property taken under (0 (1870), L. E. 10 Eq. 572 ; 40 L. J. Ch. 59 ; 23 L. T. 430 ; li) W. li. 59. [k) (1852), 1 Sm. & G. 20 ; 22 L. J. Ch. 430. (/) In re Money's Trust (1802), 2 Dr. & Sm. 94; 31 L. J. Ch. 496; 10 AV. 11. 399. The Lands Clauses Consolidation Act, 1845. 219 the Lands Clauses Act, 1845, the annuitant is entitled to have the Sect. 74. corpus of the fund broken in upon for the purpose of being paid in full(»0« ARTICLE 3.— The money paid into Court in respect of leaseholds lieinvest- may be reinvested in copyholds, or in the purchase of a reversion in {"Jids, &a°^^" fee of other leaseholds. So held in In re Coijte's Estate (n) and In re Brasher' s Trust (o). In In re Parkers Estate (p) the promoters were held liable to pay the costs of reinvestment in freehold land. ARTICLE 4.— On a petition by the tenant for life for investment Petition and payment of dividends on the pui'chase-money paid into Coui't in l^^^^^i on respect of lands let on lease the remaindermen must be made parties, lemainder- •^ men. So held in In re Crane's Estate {q), where the Court ordered the costs of appearance of the remainderman to be paid by the company. 75. Upon deposit in the bank in manner herein-before sect. 75. provided of the purchase-money or compensation agreed or rpon deposit awarded to be paid in respect of any lands purchased or I'^^^^^^^f/^j taken by the promoters of the undertaking, under the the lands to provisions of this or the Special Act or any Act incor- fiXuit't'hV'' porated therewith, the owner of such lands, including in lands to vest such term all parties by this Act enabled to sell or convey voters rf^the lands, shall, when required so to do by the promoters of undertaking the undertaking, duly convey such lands to the promoters piTbeing^' of the undertaking, or as they shall direct ; and in default executed. thereof, or if he fail to adduce a good title to such lands to their satisfaction, it shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poll under their common seal if they be a corporation, or if they be not a corporation under the hands and seals of the promoters, or any two of them, containing a description of the lands in respect of which such default shall be made, and reciting the purchase or taking thereof by the pro- moters of the undertaking, and the names of the parties from whom the same were purchased or taken, and the deposit made in respect thereof, and declaring the fact of such default having been made, and such deed poll shall be stamped with the stamp duty which would have been (m) Ex parte Wilkinson (1849), 3 De G. & S. 633; 19 L. J. Ch. 257 ; 14 Jut. 301. (h) (1851), 1 Sim. X. S. 202. (o) (1858), 6 W. E. 406. {p) (1872), L. E. 13 Eq. 495 ; 41 L. J. Ch. 473 ; 26 L. T. 12 ; 20 W. E. 289. (?) (1869), L. E. 7 Eq. 322 ; 17 W. E. 316. 220 Code of the Law of Comj^ensatmi. Sect. 75. Sect. 76. Where parties refuse to con- vey, or do not show title, or cannot be found, the purchase- money to be deposited. Failure of claimants to make a title. payable upon a conveyance to the promoters of tlie under- taking of the hinds described therein ; and thereupon all the estate and interest in such lands of or capable of being sold and conveyed by the party between whom and the promoters of the undertaking such agreement shall have been come to, or as between whom and the promoters of the undertaking such purchase-money or compensation shall have been determined by a jury, or by arbitrators, or by a surveyor appointed by two justices as herein pro- vided, and shall have been deposited as aforesaid, shall vest absolutely in the promoters of the undertaking, and as against such parties, and all parties on behalf of whom they are herein-before enabled to sell and convey, the promoters of the undertaking shall be entitled to immediate possession of such lands. 76. If the owner of any such lands jiurchased or taken by the promoters of the undertaking, or of any interest therein, on tender of the purchase-money or compensation either agreed or awarded to be paid in respect thereof, refuse to accept the same, or neglect or fail to make out a title to such lands, or to the interest therein claimed by him, to the satisfaction of the promoters of the under- taking, or if he refuse to convey or release such lands as directed by the promoters of the undertaking, or if any sucli owner be absent from the kingdom, or cannot after diligent inquiry be found, or fail to appear on the inquiry before a jury, as herein provided for, it shall be lawful for the promoters of the undertaking to deposit the purcliase- money or compensation payable in respect of such lands, or any interest therein, in the bank, in the name and with the privity of the Accountant-General of the Court of Chancery \_in England or the Court oj Exchequer in Irehoid,^ to be placed, except in the cases herein otherwise provided for, to his account tliei'e, to the credit of the parties in- terested in such lands (describing them so far as the pro- moters of the undertaking can do), sul)ject to the control and disposition of the said Court. The words in italics have been repealed by the Statute Law Revision Act, 1892. ARTICLE 1. — Where the persons who claim compensation fail to make a title, they are not owners within the meaning of sects. 76 and 77, and the promoters cannot acquire the land under those sections. The question of an owner failing to show a title to the hinds was discussed by Lord Huthcrley, when Yice-Chancellor, in Dour/lass v. The Lands Clauses Consolidation Act, 1845. 221 London and North-Western JRaihcajj Company {r), where be says: Sect. 76. " It was argued that the Legislature may even have gone so far as to coutempLate the case of a sale by a person having a positively bad title, and may have intended to provide that even upon such a sale the promoters of the company, not being satisfied with the title, should be at liberty to deposit the purchase-money to the credit of the vendors, of any other person whom they believe to be interested (describing them so far as they can do so), and of all other persons who may have that title which the vendor has failed to show. But I think that cannot be the true construction of the section, for this reason : it is impossible to suppose that the Legislature could ever have contemplated that a person having a positively bad title, and who is merely in possession of land, should be at liberty, by his own agreement, to sell that land, and to fix the price adversely to another, who may possibly be in a position to recover in ejectment the very next day." This decision was followed by Fry, J., in Wells v. Chelmsford Local Board of Health (s). In that case the plaintiffs contracted to sell land to the defendants, but failed to make any title to a small portion thereof. Thereupon the defendants paid the purchase- money of the whole land into Court under sect. 76, and executed a deed poll under sect. 77 purporting to vest the whole of the land in themselves. It was held that the plaintiffs were not the "owners " of the strip of land within the meaning of sects. 76 and 77, and that under the circumstances the defendants could not acquire the land under those sections. ARTICLE 2. — If the person with whom the promoters treat fail to Failure of make a title, the promoters must proceed to have the value of the claimant to IT .p , make a title — land assessed under sect. 58, and if they fail to take the necessary proceedings in steps for this purpose the real owner may take proceedings by *;iectmeut by ejectment. So held by Hall, V.-C, in Ex parte Winder {t). 77. Upon any such deposit of money as last aforesaid being sect. 77. made the cashier of the bank shall give to the promoters of the .. ~7~ .. Til- jji •• 1 1,. Upon deposit unclertakmg, or to the party paynig ni such money by then- being made a direction, a receipt for such money, specifying therein for !,-veiralKi^the what and for whose use (described as aforesaid) the same hinds'to vest shall have been received, and in respect of what purchase p5!iTbein?'^ (r) (1S56), 3 K. & J. 173; 3 Jur. N. S. 171. See also Boe d. ffntchinsouv. Manchester, dec, Railway Company (1845), 15 L. J. Ex. 208; 15 M &W 687 ; 9 Jur. 949. (.s) (1880), 15 Ch. D. 108 ; 49 L. J. Ch. 827 ; 43 L. T. 378 ; 29 W. E. 381 ; 45 J. P. 6. {t) (1877), 6 Ch. D. 696; 46 L. J. Ch. 572; 25 W. E. 768. executed. 222 Code of the Law of Compensation. Sect. 77. the same shall have been paid in ; and it shall be lawful for the j^romoters of the undertaking, if they think fit, to execute a deed poll under their common seal if they be a corporation, or if they be not a corporation under the hands and seals of the said promoters, or any two of them, con- taining a description of the lands in respect whereof such deposit shall have been made, and declaring the circum- stances under which and the names of the parties to whose credit such deposit shall have been made, and such deed poll shall be stamped with the stamp duty which would have been payable upon a conveyance to the promoters of the undertaking of the lands described therein ; and there- upon all the estate and interest in such lands of the parties for whose use and in respect whereof such purchase-money or compensation shall have been deposited shall vest abso- lutely in the promoters of the undertaking, and as against such parties they shall be entitled to immediate possession of such lands. Sect, 78. 78. Upon the application by petition of any party making Appiicadon claim to the money so deposited as last aforesaid, or any part of moneys so thereof, or to the lands in respect whereof the same shall deposited. have been so deposited, or any part of such lands, or an}' interest in the same, the said Court of Chancery [in Eng- land or the Court of Exchequer in Ireland,] may, in a sum- mary way, as to such Court shall seem fit, order such money to be laid out or invested in the public funds, or may order distribution thereof, or payment of the dividends thereof, accordiug to the respective estates, titles, or interests of the parties making claim to such money or lands, or any part thereof, and may make such other order in the premises as to such Court shall seem fit. The words in italics have been repealed by the Statute Law Revision Act, 1892. ARTICLE sect. 78. 1. — An incumbrancer is entitled to apply under Incum- brancer may apply. Payment out ■ ^^^ ^^^ Marriage («) it was held that a mortgagee is entitled to to mortgagee, payment out of the amount of his mortgage. If the promoters take an assignment of the mortgage, the money may be paid out to them. In Ex jKirte La>iiJ)ti)it (a) the owner of business premises M (1861), 9 W. E. 84:3 (1876), 3 Ch. D. 36 ; 45 L. J. Ch. 841 ; 35 L. T. 18 ; 24 W. E. 1003. The Lands Clauses Consolidation Act, 1845. 223 mortgaged them with the machinery and fixtures. A railway company gave notice to take part of the premises, but before the price was fixed the mortgagor died, and the mortgagees entered into possession of the property. In fixing the amount of com- pensation payable by the company, the umpire awarded a sum of £11,950, of which he certified he had awarded £2,800 in respect of the loss of profits in carrying on the business. The executors of the mortgagor claimed the £2,800 as belonging to the mortgagor's estate. The Court held that the £2,800 was in the nature of com- pensation for the value of the good-will of the premises which passed with the premises ; and that the whole of the sum of £11,950 belonged to the mortgagees. In In re Stead's Mortfjaged Estates (y) money was paid into Court for the purchase of land which was subject to an equitable mortgage by deposit, with a memorandum undertaking to give a legal mortgage. On a petition by the mortgagee for payment out, it was held that only six years' arrears of interest could be charged. In Cooper v. MctnipoUtaii Board of Works (z) the promoters took the leasehold house of a tailor. They offered him £400, of which £150 was to be apportioned to his leasehold interest, and £250 to his trade damage and personal expenses, to which the plaintifl' agreed. The plaintiff had mortgaged his leasehold premises and could not make a good title. The plaintift' brought an action for specific performance of the agreement, and the promoters paid the £100 into Court. The Court held that the plaintiff was entitled to have the £250 paid at once to him with interest from the time the promoters took possession ; and that although the good-will of trade premises passes in some cases to a mortgagee, it does not apply to a case where the good-will depends on the personal skill of the owner. An inquiry was directed as to the title and as to the persons who were entitled to the purchase-money. ARTICLE 2, — Trustees for sale whose cestuis que trust are under a disability are not persons absolutely entitled under sect. 78. So held in In re Iteaston's Estate {a). Where a company took real property vested in trastees for a married woman and her children, the Court declined to direct the fund to be paid to the trustees. The proper order in such a case is for the investment of the fund {h). Sect. 78. Inquiry ordered as to the persons entitled. Trustees of persons under disability not absolutely entitled. {y) (1876), 2 Ch. D. 713 ; 45 L. J. Ch. 634 ; 35 L. T. 465 ; 24 W. E. 698. (z) (1883), 25 Cli. D. 472 ; 53 L. J. Ch. 109 ; 50 L. T. 602 ; 32 W. E. 709. (a) (1872), L. E. 13 Eq. 564 ; 41 L. J. Ch. 832 ; 26 L. T. 148 ; 20 "W. E. 355. (b) In re HorwoorTs Estate (1861), 3 Giif. 218. See also Li re Sown/ (1873), L. E. 8 Ch. App. 736 ; 29 L. T. 233; 21 W. E. 717. 224 Code of the Lmv of Compensation. Sect. 78. Payment out to claimant after decree of specific performance. Where claimant's interest is less than he claims, Court will use its own ma- chinery to ascertain value of his interest. Invalid leases. Apportion- ment, ARTICLE 3.— After a decree of specific performance has been made against the promoters, the vendor is entitled to the payment out of Court of purchase-money or compensation paid in by the promoters subsequent to decree. In Galliers v. Metropolitan Ilaihvay Comiiany (c) the company, after a decree of specific performance, paid into Court the sum awarded for compensation on the ground that the title was defective. The Court ordered the money to be paid out to the vendor on his petition. ARTICLE 4.— If the claimant claim a greater interest in land than he can show a title to, and the pui'chase-money and compensa- tion is in Court, the Court will use its own machinery to ascertain the value of the interest which belongs to the claimant. So held in Brandon v. Brandon {d), where Kindersley, V.-C, said : " I think the Court would have no resource but to apply its own machinery to find out the value of the interest which did belong to the claimant ; to give that to him, and the rest of the money to the party who had paid it in." In Ex parte Cooper, In re North London Bailwaij Company (e), a jury awarded i;i,500 for some leases. The amount was paid into Court ; the leases were in fact invalid. It was held that the claimant was entitled to so much of the ^1,500 as represented the value of certain improvements effected by him on the faith of the leases being valid, and that the residue of the money paid into Court must be returned to the promoters. In Be Alston's Estate (/) the claimants, subsequently to the date of the award, discovered they were not entitled to a portion of the land. The Court directed that there should be an apportion- ment, and that the claimants must pay the costs occasioned by such apportionment. In Li re Perks' Estate (g) money was paid into Court by a rail- way company on an agreement with the tenant for life for purchase of the fee simple. Upon investigation it was ascertained that part of the land was copyhold with a defective title as to a moiety. The Court ordered an apportionment of the money, and that the amount representing the land to which a good title was made should be (c) (1871), L. R. 11 Eq. 410 ; 40 L. J. Ch. 544 ; 19 W. E. 795. \d) (1865), 34 L. J. Ch. 333; 2 Dr. & Sm. 305; 13 W. R. 251 ; 11 Jur. '^'(f) (1865), 34 L. J. Ch. 373; 2 Dr. & Sm. 312; 11 L. T. 6G2 ; 13 AV. E. 364 ; 11 Jiu". N. S. 103. See also Ex parte Haynt (1865), 12 L. T. 200; 13 W. R. 492. (/) (1857), 5 W. R. 189 ; 28 L. T. 0. S. 337. (^) (1853), 1 Sm. & G. 545 ; 2 W. R. 24 ; 7 R. C. 605. The Lands Clauses Consolidation Act, 18-15. 225 carried to a separate account, and the dividends paid to the tenant Sect. 78. for life. Where an adverse claim to that of the claimant was set up by Adverse claim the Crown, and the promoters paid the purchase-money into Court, ' the petition of the party claiming the money was ordered to stand over till the information filed by the Crown had been heard, on the ground that the Crown could not be brought before the Court under the Lands Clauses Act to contest the claim of the petitioner (/<). 79. If any question arise respecting the title to the lands sect. 79. in resjDect whereof such moneys shall have been so paid or Partyln" deposited as aforesaid, the parties respectively in possession possession to of such lands, as being the owners thereof, or in receipt of the*^o^er. the rents of such lands, as beins: entitled thereto at the time of such lands being purchased or taken, shall be deemed to have been lawfully entitled to such land.s, until the contrary be shown to the satisfaction of the Court ; and unless the contrary be shown as aforesaid, the parties so in possession, and all parties claiming under them, or consistently with their possession, shall be deemed entitled to the money so deposited, and to the dividends or interest of the annuities or securities purchased therewith, and the same shall be paid and applied accordingly. ARTICLE 1. — A person in occupation and in whose favour the Title by Statute of Limitations has run is within sect. 79. P?"^!^^/'°^~ Statute of So held in Ex parte Winder (i). But where the tenant has Limitations, never had any possession, even inchoate, of the reversion at the time when he enters into occupation of the premises, he is not a person " in possession " of the premises within the meaning of sect. 79. This was so held by the Court of Appeal in Gedye v. Commissioners of Works (A), in which case doubt was thrown upon the decision of Bacon, V.-C, in Ex parte Chamberlain (l). In that case it was held that a person, who had been in possession as a leaseholder, showing a title by adverse possession for twenty-six years (after the expiration of a term of 192 years), to land taken under the Lands Clauses Act, will, in the absence of any claim by, or evidence of the existence of, the reversioner, be deemed to be the owner of the land and entitled to the purchase-money. The (//) III re Manor of Lovestoft and Great Eastern Railicatj Company, Ex parte Retve (1883), 24 Ch. D. 253 ; 52 L. J. Ch. 912 ; 49 L. T. 523 : 32 W. E. 309. {i) (1877), 6 Ch. D. 696; 46 L. J. Ch. 572; 25 W. E. 768. (A) [1891], 2 Ch. 630 ; 60 L. J. Ch. 587 ; 65 L. T. 359 ; 39 W. E. 598. (0 (1880), 14 Ch. D. 323; 49 L. J. Ch. 354; 42 L. T. 358; 28 W. E. 565. L.C. 15 226 Code of the Law of Compensation. Sect 79. Court of Appeal did not overrule the case, but expressed great doubt as to the correctness of the decision. Where the occupant of land taken by a railway company had a possession which would have ripened into a title by adverse possession but for the dealings with the company, the purchase- money was ordered to be paid to such occupant (m). In Ex ixirte, IloUingsicorth (») it appeared that the petitioner had taken possession of a vacant piece of land in 1850, and had occupied it Avithout interruption till 1869, when it was taken by promoters under their statutory powers. The purchase-money was paid into Court. In 1871 the petitioner presented a petition for payment out of the purchase-money, as being the person entitled to the land in respect of which the purchase-money had been paid in. The Court held that the petitioner's inchoate title to the land having been interrupted by the parliamentary rights of the promoters, a railway company, the petitioner had no title to the purchase-money. InEx iKirte Forde (o), money lodged in Court was paid out on a title based on continued possession by a tenant without payment of rent for fifteen years after the expiration of his own and the next superior interest. In In re Harris (j)) default had been made in the payment of an annuity, and the annuitant and his successors had been in possession of the lands upon which the annuity was charged, from 1829 to 1900. In 1900 the London County Council acquired the property under their compulsory powers and paid the purchase- money into Court. Upon a petition by the successor in title of the annuitant for payment out, the Court declined to order the fund to be paid out, but directed it to be invested and the dividends to be paid to the petitioner until the lapse of twelve years from May 31st, 1895, when the last of the persons entitled to the annuity died. Under sect. 79 ARTICLE 2.— The Court will not, on applications for payment of Court will not purchase-money, deal with the property in any way whatever which penyYn^aE™' can affect the title, unless it be shown so clearly as to be beyond way which question, that there must be litigation upon the question of title. caji affect the ^ ''^^^- 8o held by Pago Wood, V.-C, in In re St. Pancras Burial- Ground (q). (/«) 7?e Eravs (1873), 42 L. J. Ch. 3.57. See also Ex parte Welistei- (1866), W. N. 246; Jl>i Ctx)!/^ KsUdc (1863), 8 L. T. 759. [n) (1871), 19 W. R. 580 ; 24 J.. T. 347. (o) [18941, 1 Ir. R. 156. (») [1901], 1 Ch. 931 ; 70 L. J. Ch. 432 ; 84 L. T. 203. Iq) (1866), L. R. 3 E(i. 173, 183 ; 36 L. J. Ch. 52 ; 15 W. R. 576. The Lands Chaises Consolidation Ad, 1845. 227 It was held in Be StcrnCs Estate (r) that the Court will not Sect. 79. subject a person who is in occupation of land taken by promoters to adverse proof of his title when the purchase-money has been paid into Court under sect. 79. It is not necessary, in such circum- stances, for the person in possession as owner to serve any other person than the company with the petition for investment. Where the title is doubtful, sect. 79 does not apply {s). 80. Ill all cases of moneys deposited in the bank under sect. so. the provisions of tliis or the Special Act, or an Act incor- costs in cases porated therewith, except where such moneys shall have of "loney l^een so deposited by reason of the wilful refusal of any ^ ^°^' party entitled tliereto to receive the same, or to convey or release the lands in respect whereof the same shall be payable, or by reason of the wilful neglect of any party to make out a good title to the land required, it shall be lawful for the Court of Chancery [in England or tlie Court -of Exchequer in Ireland] to order the costs of the follow- inof matters, includino; therein all reasonable charges and •expenses incident thereto, to be paid by the promoters of the undertaking; (that is to say,) the costs of the purchase or taking of the lands, or which shall have been incurred in consequence thereof, other than such •costs as are herein otherwise provided for, and the costs ■of the investment of such moneys in Government or real securities, and of the reinvestment tliereof in the purchase of other lands, and also the costs of obtaining the proper orders for any of the purposes aforesaid, and of the orders for the payment of the dividends and interest of the securities upon which such moneys shall be invested, and for the payment out of Court of the principal of such moneys, or of the securities whereon the same shall be invested, and of all proceedings relating thereto, except «uch as are occasioned by litigation between adverse •claimants : Provided always, that the costs of one appli- •cation only for reinvestment in land shall be allowed, unless it shall appear to the Court of Chancery [/;? Emj- iand or the Court of Exchequer in Ireland] that it is for the benefit of the ])arties interested in the said moneys that the same should be invested in the purchase of lands, in artt Issauchaud' {li^-i9), 3 Y. & C. (Ex.) 721. 15—2 228 Code of the Lau- of Compensation. Sect. 80. be lawful for the Court, if it think fit, to order the costs of any such investments to be paid by the promoters of the undertakinor. The words in italics have been repealed by the Statute Law Pievision Act, 1892. Sect. 80 ARTICLE 1. — Section 80 deals with the question of costs in all cases applies to all ^j^ere monev is deposited in the bank under the provisions of the cases where •' '■ money is Lands Clauses Act, 1845. deposited in -,- -, t, • t t r< ? ^ t-, i ^i the bank. In In vc London, BrKjhton, and Soutli Coast liadu-aii tompany. Ex parte Floicer (t), it was held that sect. 80 applied whenever moneys are deposited in Court under the Act, whether under the earlier or later sections. In that case a company took compulsory possession of land, giving a bond under sect. 85, and paying money into the bank. The purchase-money was afterwards ascertained by arbitration, but the payment of it into Court did not become Costs incurred necessary. The landowner incurred considerable costs about the i^n^thTappOT-' apportionment of the rent, and presented a petition asking that tionment of they might be paid out of the deposit by the company. Stuart, V.-C, the rent. ^^^^^ ^^^^ order, and it was affirmed by Knight Bruce and Turner, L.JJ. The former said : " The Yice-Chaucellor was right in point of principle, precedent, propriety, and substantial justice, in order- ing the company to pay these costs, unless it can be shown that under the Act of Parliament he had no jurisdiction to do so. Nothing has been read from the Act of Parliament, and no authority has been produced, showing that he had not that jurisdiction under sect. 80 of the Act, and I am of opinion that his Honour's order is clearly right." Land taken In Charlton V. RoUeston {ii), where land had been entered upon -compensa^'' "i^t^er sect. 85, and the amount of compensation had subsequently tionsettledby j^gen settled by agreement, it was held that sect. 80 applied, and agreemen . ^^^ company was ordered to pay the costs of ascertaining the amount of compensation and of the preparation of the agreement. Applications In applications for payment out of Court and investment under m;7t'7ir''* the Settled Land Act, 1882, of funds in Court representing the made by purchase-money of lands taken under the Lands Clauses Act, 1845, pronTtcr^ot the Court will not allow the costs of a petition where the applica- liable for ^j^^^ could be made more cheaply by summons ; but the Court will cxtri costs OT A •^ *' petition.' not disallow the costs of a petition where the application by petition is cheaper and more expeditious than by summons (x). (0 (1866), L. E. 1 Ch. App. 599 ; 36 L. J. Ch. 193 ; 15 L. T. 258 ; 14 W. E. 1016 ; 12 Jur. N. S. 872 ; followed in l^x parte Morn's (1S71), L. E. 12 Eq. 418 ; 40 L. J. Cb. 543 ; 25 L. T. 20 ; 19 W. E. 913. ((0 (1883), 28 Ch. D. 237 ; 54 L. J. Ch. 233 ; 51 L. T. 612. (x) In re Dethhhim and Bridewell Ilospitah (1885), 30 Ch. D. 541 ; 54 L. J. Tlic Lands Clauses Consolidation Act, 1845. 229 An order made ou a petition cauuot be varied on a summons, but Sect. 80. a second petition is necessary (//). The costs of a petition will be allowed where the matter is of a complicated nature (z). The Court will only allow the costs of one petition, w^here only one application is necessary (a). Where several persons are entitled to the fund in Court they are Each persoa not bound to appear by the same solicitor or counsel ; but if two or appear by more of them emplov the same solicitor, they will not, in the tlifferent '■ " . solicitor, absence of special circumstanc3s, be entitled to more than one set of costs (h). If a party is properly served, but his appearance is unnecessary, he is not entitled to his costs (c)- Costs will not be allowed under special Acts which do not iucor- Costs under porate the Lands Clauses Act, 1845, unless there is a special -^vhich do not provision for the purpose {d). incorporate ^ , , . . . . , the Lands A\ here property belonging to tenants m common is purchased, Clauses and the purchase-money is paid into Court, and one of them dies, the promoters must pay the costs of a petition by the personal repre- pioperty sentatives of the dead tenant for payment out of Court of his share (e) . taken from ^ '' tenants in ARTICLE 2.— Although by sect. 80 the Court has not in certain ^'^'^I'^o"- cases power to order costs to be paid by the promoters when money qq^^j.^- ^Q qj.^q^. has been deposited in Court, the Coiu-t has now, by virtue of sect. 5 of p^^yment of costs ill CilSGS the Supreme Coiu't of Judicatm-e Act, 1890, a discretionary power to excepted by order costs in the excepted cases. ^^^^- ^o. This was decided by the Court of Appeal in In re Schmarr (/), Ch. 1143 ; 53 L. T. 558; 34 W. R. 148 ; la re Martin and Varlow (1894), 43 W. E. 247 ; 13 E. 189 ; (1894), W. N. 223 ; Bates v. Moore (1888), 38 Ch. D. 381 ; 57 L. J. Ck 789 ; 58 L. T. 513 ; 36 W. E. 586 ; Attorru-y-Gcneral v. St. Consolidation Act. iu) In re Saudtrs (1894), 70 L. T. 755. (2) In re Jackson (1894), W. N. 50. (a) In. re Pattison's Estates (1876), 4 Ch. D. 207; In re Gorc-Lant/ton's Estates (1875), L. E. 10 Ch. App. 328 ; 44 L. J. Ch. 405; 32 L. T. 785 ; 23 W. E. 842 ; In re Midland Great Western Railwutj Compamj (1881), 9 L. E. Ir. 16; Ex parte Lord Broke (1863), 11 W. E. 505. (/>) In re JSiichoirs Trust Estate (1866), 35 L. J. Ch. 516; 14 W. E. 475; In re Lomfs Trust (1864), 33 L. J. Ch. 620; 10 L. T. 21 ; 12 W. E. 460 ; 10 Jur. N. S. 417; Ex parte Braye (1863), 32 L. J. Ch. 432; 11 W. E. 333; 9 Jur. N. S. 454; In re Spooner's Estate (1854), 1 K. & J. 220. ('•) In re Coventry Justices (1854), 19 Beav. 158 ; 24 L. J. Ch. 586. {d) In re Bristol and Exeter Bailwaij Company (1847), 11 Jui\ 686 ; Ex parte Earl of Hardwicke (1848), 1 De G.'M. & G. 297 ; 17 L. J. Ch. 422 ; In re Ellison's Estate (1856), 25 L. J. Ch. 379 ; 8 De G. M. & G. 62 ; 2 Jur. N. S. 293; Ex parte Eton College (1851), 20 L. J. Ch. 1 ; 15 Jur. 45. (e) In re Ednieode's Estate (1860), 8 W. E. 327 ; 6 Jur. N. S. 986. L (/) [1902], 1 Ch. 326 ; 71 L. J. Ch. 219; 86 L. T. 71 ; 50 W. E. 245. 230 Code of the Iaiw of Co)iipntsation. Sect. 80. in wliich case the sheriff's costs of a warrant to give possession of land, incurred afcer payment of the purchase-money into Court hj the promoters, were ordered to be paid out of the fund in Court- Judicature Yaughan WilUams, L.J,, said: "Mr. Thompson has not been able- Act, 1890, s. 5. ^Q gg^ ^^.gj. ^Yie difficulty which is based on sect. 5 of the Act of ] 890. Section 5 is as follows : ' Subject to the Supreme Court of Judicature Acts, and the rules of Court made thereunder, and to the express provisions of any statute, whether passed before or after the commencement of this Act, the costs of and incident to all pro- ceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom, and to what extent such costs are to be paid.' He did not argue, and he could not properly have argued, that these costs are not covered by that section, unless he could establish that they are- excluded by the words ' subject to the express provisions of any statute.' In order to establish that, he is obliged to contend that in effect sect. 80 provides that in the cases covered by the excep- tions mentioned in it costs shall not be paid by the promoters. It seems to me that sect. 80 does nothing of the sort. It is true that sect. 80 authorises the Court to give costs only in cases other than those which are excepted. But then comes sect. 5 of the Act of 1890, which, in my opinion, places those excepted costs in the discretion of the Court or judge." It will therefore be observed that the jurisdiction of the Court has been extended by the Judicature Act, 1890. This Act has enabled the Court to award costs which it could not otherwise have awarded. In /;/ re Mills' Estate {(j) it had been held that the Judi- cature Acts and Ilules, 1883, Order 65, rule 1, did not enable the Court or a judge to order costs to be paid by persons who, before the Acts came into operation, could not have been ordered to i)ay them ; the effect and intention of the Act and Orders being not to give any new jurisdiction to award costs, but only to regulate the mode in which costs are to be dealt with in cases where tlie Court had previously had jurisdiction, either original or statutory, ta award costs. This decision was got rid of by the Judicature Act, {oratioii of J>iihlin (1881), 7 L. E. Ir. 173. (./•) lie Wixidburn'a Trusts (1865), 13 Ij. T. 237. (ij) lie Turner's Estate (1S62), 5 L. T. 524 ; 10 W. E. 128. (2) 111 re Leeds Grammar Selmal [1901], 1 Ch. 228 ; 70 L. J. Ch. 89: 83 L. T. 499; 49 W. E. 120; 65 J. 1'. S8. {a) (1882), AV. N. 33. The Lands Clauses Consolidation Act, 1845, 233 therein all reasonable charges and expenses incident thereto " were Sect. 80. large enougli to include the costs of the arbitration, and to enable the Court to order their payment notwithstanding the power given to the arbitrator to award costs by the special Act. ARTICLE 5.— Costs incurred in taking land subject to a suit must Land subject , ^ to a suit. be paid by the promoters. So held in Ilayncs v. Bayton (b), following Picanl v. Mitchdl (c). In the latter case Lord Langdale stated that pjv"^/ut facie all the expenses ought to be paid by the company who have occasioned them, and he added " where public companies, either for the public good or their private profit, come and violently take the property of ■others, whether they like it or not, they ought to indemnify the persons against all the expenses which may be occasioned by such s. proceeding." The Court has power to make the promoters pay the costs of the Transfer of transfer of the compensation money to the account of another cause {d} . another cause. If the lands taken are part of the estate of a lunatic, the costs of where land of a reference to a master, and of any subsequent petition, must bo ^f^^l If^'^^ paid by the promoters (e). The costs of attendance of the heir-at- reference to a law upon a reference before a master ought also to be borne by the promoters (/). The next of kin should be served, and should appear if necessary (g). Where the owner dies before the conveyance has been executed, the promoters must pay the costs of an infant devisee {Ji). Where the tenant for life petitioned for the reinvestment of the Costs of ^ , , reversioner to purchase-money in other lands, the costs oi the appearance oi the ]^q p^ij out of reversioner and of the trustees of a deed of separation between the J^^JJ^^^^^"^^^' ^^* tenant for life and her husband were ordered to be paid out of the promuters. fund, but not by the promoters (0- AVhere an administration suit is rendered necessary in order to Where ad- . i i" 1 -i /; V ministration make a title the promoters must pay the costs oi sucn suit {h-). ^uit ig tendered (b) (1861), 30 L. J. Ch. 804 ; 1 Dr. & Sm. 483. See also Carpmael v. necessary. Projitt (1853), 17 Jur. 8'J5; Brandon v. Brandon (18GJ), 2 Dr. & Sm. 305; 34 L. J. Cii. 333 ; 13 W. E. 251 ; 9 Jur. N. S. 166 ; Armitaije v. Askham (1855), 1 Jur. N. S. 227. (c) (1849), 12 Beav. 486. See also IltnniJcer v. Chaff/ (1861), 28 Beuv. 621 ; 7 Jur. N. S. 87. ('/) M>Uinj [1893], 31 L. E. Ir. 137; followed in Ex parte Rorke 234 Code of the Law of Compensation. Sect. 80. Transfer of fund to credit of another suit — costs of subsequent dealings with it. Promoters must pay the costs of the trustee of the settlement. J Persons abso- lutely entitled — reinvest- ment in land. Proceeds of leaseholds re- invested iu freeholds. Proceeds of freeholds re- invested in leaseholds. ARTICLE 6. — Where the fund in Court is transferred to the credit of another suit not referring^ to the Lands Clauses Act the promoters, are not liable for the costs of subsequent dealings with the fund. So held in Prescott v. ]]'()od (/), Fisher v. Fisher {in), and Broint V. Feiurick (»). But in Drake v. Greaves {<>) it was held that where a fund bad been transferred to tbe credit of an administration: suit, tbe Court could order tbe promoters to pay tbe costs of reinvestment where, after transfer, tbe account was entitled ex^ parte tbe promoters, although neither tbe special Act nor tbe Lauds Clauses Act were mentioned. On a petition for tbe transfer of tbe fund to tbe credit of tbe suit, tbe trustee of tbe settlement which included tbe lands taken was held to be a proper party, and entitled to have bis costs paid by tbe promoters {j)). ARTICLE 7. -Persons absolutely entitled to the fund in Couit may have it reinvested in land at the cost of the promoters. In Fie Jones's Trust (q) a railway company took, under their compulsory powers, land which was settled in such a way that a father and son bad at that time between them tbe absolute beneficial interest. Tbe purchase-money having been paid into- Court. it was held that tbe owners were entitled to have part of tbe fund paid out to them as absolutely entitled, and at tbe same time to have another part reinvested in tbe purchase of land, to be settled to somewhat difierent uses, at tbe expense of tbe company. In In re Parker's Fstate (r) a railway company was ordered, on the petition of all parties interested, to pay the costs of a reinvest- ment in freeholds of a fund in Court representing tbe proceeds of leasehold premises taken by tbe company. In Fx parte Dean of Manchester (s) promoters were ordered ta pay the costs of reinvestment in leaseholds of money paid iu respect of freeholds. [1894], 1 Ir. E. 146 ; In re Lloyd and the Noiili London Lluilwuy Act [1896]^ 2 Ch. ;>97 ; 65 L. J. Ch. 626 ; 74 L. T. 548 ; 44 W. E. 522. See also Ex part& Lunjuii Urhun District (Junnril [1902], 1 I. E. 157. (0 (1868), 37 L. J. Ch. 691. (///) (1874), L. E. 17 Eq. 340; 43 L. J. Ch. 262; 29 L. T. 720; 22 W. E. 638. (/,) (1866), 35 L. J. Ch. 241 ; 13 L. T. 787 ; 14 W. E. 257. See also ^ock v. Novk (1879), W. N. 125. {o) (1886), 33 Ch. D. 609 ; 55 L. J. Ch. 133 ; ob L. T. 353 ; 34 W. E. 757. (;/) In re UiH/lish's Srttlement (1888), 39 Ch. D. ooC) ; 57 L. J. Ch. 1048 ; 60 L. T. 44 ; 37 W. E. 191. See also Mellinr] v. Bird (1853), 22 L. J. Ch. 509; 17 Jur. 155; Eden v. T/ioin]ison (1864), 2 U. & M. 6. (7) (1870), 39 L. J. Ch. 190; 18 \V. E. 312. See also Ite iJodd's Estate (1870), 24 L. T. 542 ; 19 W. E. 741. (r) (1S72), L. E. 13 Eq. 495; 41 L. J. Ch. 473; 26 L. T. 12 ; 20 W. E. 289. {s) (1873), 28 L. T. 184. The Lauds Chatscs Consolidation Act, 1845. 235 In In re De lieauroir's Tni>its{t), on a petition for the invest- Sect. 80. meat of the fund in Court in lands to be settled to other uses than p.einTesT- those to which the purchased lands stood limited when the pro- ">«nt iu lands T • 1 1 1 ii ii ^ i 1 to be settled moters purchased, it was held that tlie promoters must pay the to other uses. costs. The vendor's costs, which are payable by the purchaser, are not Vendors costs costs payable by the promoters («)• b?jfromotrrs. Additional costs incurred in the settlement of a new scheme are Costs of new not to be borne by the promoters, on the ground that they are too payable by remotely connected with the purchase (r). promoters. In E.c parti' Vicar of Creech St. Michael {y) the costs of the Costs of attendance of the bishojD, as Avell as the vicar, on a reference to the vicar, master, must be paid by the promoters, where the lands taken belonged to the vicarage. The costs of reinvestment of a fund belonging to a charity were Payment out not ordered to be paid by the promoters, where the payment out chaHtabie ° was made to the official trustees of charitable funds {z). funds— costs TTTi 1 • T n 1 1 • f of rt'invest- \V here a purchase is made and completed previous to a reierence ment. to the master, it is not, although afterwards approved by the Where pur- master, a purchase within the meaning of the Act so as to entitle piett^i^'bef' the petitioner to costs {a). reference to a AVhere the enrolment of the convevance is necessary, the costs of ,, . " "^ J:!inrolment of such enrolment must be paid by the promoters {b). conveyance — Costs incurred in an attempted purchase, though it is not com- ^'^^^^ ^ ' pleteu, are costs incident to the investment, and must be paid by chase not the promoters {c). completed. In Kx parte Vaiidrcy's Trusts {d) a railway company were Where pur- ordered to pay the costs of an intended investment which the apm-oved^and master approved, but which was afterwards abandoned. then abaa- Where the Court had approved the reinvestment, and it subse- pj^n^." quently turned out that a good title could not be made, so that make a title the prospective purchase proved abortive, it was held that the ^}oni^i^^^ promoters must pay the costs of the abortive purchase (e). (t) (1800), 29 L. J. Ch. 567 ; 2 D. F. & J. 5 ; 6 Jiir. N. S. 593. (") Ex pnrtf Chiusfs Hospital (1875), L. E. 20 Eq. 605 ; Inre Temple Church Lands (1877), 47 L. J. Ch. 160 ; 26 W. E. 259. (x) In re St. PanVs Schools, Finsbunj (1883), 52 L. J. Ch. ioi : 48 L. T. 412 ; 31 W. E. 424. (j/) (1852). 21 L. J. Ch. 677. (z) Ex parte Horfiehl Trust (1881), 29 "W. E. 462. («) Ex parte Bouverie (1848), 5 E. C. 431. {h) Be the Governors ofChn'sfs Hospital (1864), 12 W. E. 669 : 10 L. T. 262. (c) Ex parte Bector of Ho! f/ well (1865), 2 Dr. & 8m. 463 ; 13 ^V. E. 960 ; 11 Jur. N. S. 579; In re WooUet/s Estate (1853), 17 Jur. 850. See, however, Ex parte Coplnj (185S), 4 Jtir. N. S. 297. ('/) (1861), 3 Gia 224 ; 30 L. J. Ch. 885. (ej Be t'urneii (1872), 20 W. E. 407; 26 L. T. 308. 236 Code of the Law of Compensation. Sect. 80. Eeinvest- ment by instalments. Cases where promoters will not be ordered to pay costs. Costs of two counsel advising on title dis- allowed. Change of investment rendered necessary by the act of the Oovernment. Application to reinvest in a way autho- rised by the Settled Land Act, 1882. Eeinvest- ment of funds in addition to those paid in by promoters — costs. Promoters taking laud under compulsory powers must pay tlie costs of numerous small investments in land, if such proceedings are not vexatious and unnecessary (/). Section 80 contemplates several applications in respect of several investments (fi). If the investment is not approved hy the Court, or if the proposed investment is made without sufficient reason, the promoters will not be ordered to pay the costs ; and in exceptional cases an order Avill be made for the costs of the promoters to be paid out of the fund in Court (Ji). In In re Jones's Settled Estates (/) the costs of private counsel advising on the whole title, where the title had been investigated by one of the conveyancing counsel to the Court, were disallowed, but the fees for consultation between the two counsel were allowed. ARTICLE 8.— Where a change of investment is rendered necessary by the act of the Government, and not by any caprice of the holder, the promoters must pay the costs. This was decided in In re Broivn (A), where money was invested in Consols, and the Consols were redeemed by the Government, and the redemption money paid into Court. Lord Halsbury, L.C., said : " On the question of costs, if it were a case of capricious change of investment the question might arise whether we ought to require the railway company to pay the costs ; but that is not the case here. The change was the act of the Government, and in my opinion the railway company ought properly to pay the costs of this investment." Where an application is made to reinvest money in a way authorised by the Settled Land Act, 1882, and not by the Lands Clauses Act, 1845, the Court will order the promoters to pay the costs if the application is properly made (/). In Attorney -General v. Corporation of Rochester {)n) a petition was presented for the reinvestment of a fund in Court, a portion of which had been paid in as purchase-money of lands taken by the Crown, and two remaining portions on account of lands taken by (/) Ex parte Fislrmomjers' Compunij (1862), 1 N. E. 55 ; Re Brandon's Estate (1865), 2 Dr. & Sm. 162 ; 34 L. J. Ch. 333; In re St. Katherme's Dock Company (1844), 3 E. C. 514 ; Exparte Eton Collc(/r (1842), 3 E. C. 271. (V) Jic Trustees of St. Bartholomew'' s Hospital (1859), 4 Dr. 425. bee also Ex parte Trustees of Waste Lands of Box moor (1844), 3 11. C. 513; Jones v. Lewis (1850), 2 McN. & G. 163; In re Merchant Taylors' Company (1847), 10 Beav. 485. ^, , ,,,,-o^ . t (//) In re Ilardifs Estate (1854), 18 Jur. 370 ; Exparte Copley (18o8), 4 Jur. N. S. 297; Ex piirte Stevens (1850), 15 Jur. 243. (/) (1858), 6 W. E. 762. (/.) (1890), 59 L. J. Ch. 5.30 ; 63 L. T. 131 ; 38 W. R. 529. (/) In re Ilanburifs Trusts (1883), 52 L. J. Ch. 687; 31 W. E. /84. (m) (1867), 16 L". T. 408 ; 15 W. 11. 765. TIk" Lands Clauses Consolidation Act, 18-i5. 237 two railway companies. The Court ordered that the costs, which Sect. 80. were to he borne equally hy the companies, should not be increased by reason of the fund exceeding the amounts paid into Court by the companies. ARTICLE 9.— A reinvestment on mortgage security will not be ^ reinvest- - ,, , , ,, ment on mort- treated as a permanent investment and the promoters must pay the gage security costs without any condition as to the costs of any future permanent is not a '' permanent investment. investment. So held in In re Blijth's Trusts (n), where Lord Selborne, L.C., said : " The Court had power under sects. 70 and 80 of the Lands Clauses Act to order the company to pay the costs of more than one interim investment ; and in this case the company must pay the costs of the application and of the proposed investment without any condition as to the costs of any future permanent investment." Prior to this decision there were cases in which the Court authorised an interim investment on mortgage security, and imposed as a condition that the company should not be called upon to pay the costs of any future investment in lands (o). Where the purchase-money for settled lands taken by a railway company was paid into Court, and after a contract had been entered into for investing it in land, a petition was presented for its temporary investment in funds, the Court held that the proceeding was not vexatious, and that the company ought to pay the costs (j)). ARTICLE 10. — Where land is reinvested in copyholds the pro- Reinvest- moters must pay the costs of pui'chase of the conveyances, and of the ^Q^jg^gost^'^" application for reinvestment, but they are not liable to pay the fine payable by upon the admission to the copyholds. promoters. So held in In re Eastern Counties IlaiJu-ay Company, Ex parte Vicar of Sawston (q). ARTICLE 11. — Where the reinvestment of the purchase-money in Costs of re- buildings is authorised the costs are payable by the promoters. baildin^^s. So held in Ex parte Rector of Claypole (r). In re Incumbent of (//) (1S73), L. E. 16 Eq. 468; 28 L. T. 890 ; 21 W. E. 819; In re William Smith's Estate (1870), L. E. 9 Eq. 178 ; 18 W. E. 369; Beading v. Hamilton (1862), L. T. 628 ; In re Sewurfs Estate (1874), L. E. 18 Eq. 278; 30 L. T. 355. (o) In re Elemon's Trusts (1870), L. E. 10 Eq. 612 ; 40 L. J. Ch. 86; In re Lomax (1S64), 34 Beav. 294 ; In re Wilkinson's Estate (1868), 37 L. J. Ch. 384 ; 18 L. T. 17 ; 16 W. E. 537 ; Tn re Gedling liedori/JlSSo), 53 L. T. 244. {]>) In re Lirerpool, dx., Bailivai/ Companij (1853), 17 Beav. 392. (7) (1858), 27 L. J. Ch. 755 ; 6 W. E. 492 ; 4 Jur. N. S. 473. See also Re Cannes Estate (1850), 19 L. J. Ch. 376; 15 Jur. 3; Dixon v. Jaclson (1856), 25 L. J. Ch. 588 ; 4 W. E. 450. (/•) (1873), L. E. 16 Eq. 574 ; 42 L. J. Ch. 776 ; 29 L. T. 51. 238 Code of the haw of Compensation. Sect. 80. Where pur- chase-money applied in providing buildings in substitution. Purchase- money invested with other moneys. Judicature Act, 1890. s. Costs of redemj)tion of land tax. JJ Ititf eld (s), 1)1 re Latliropps Charitij {t), Ex j)aete Rector of Shipton-under-Wycliu-ood (u), Ex parte Rector of Gamston (x). These costs will not include the architect's and surveyor's fees, or the costs of the building contract (//). Where an application is made that the purchase-money may be applied in providing buildings in substitution for those taken, the costs of such application must be paid by the promoters (z). ARTICLE 12. — Where the purchase-money paid by the promoters is invested with other moneys, the costs of the promoters must not be thereby increased. This has been decided in several cases. In In re Branmer's Estate (a) the promoters purchased settled lands and paid the money into Court. Lands were purchased with this money and with a sum provided by the tenant for life. The Court held that they could not apportion the costs, but that the costs to be paid by the promoters were not to be increased by reason of the fact that the price paid for the land purchased was greater than the amount paid into Court for the land taken. Now, by sect. 5 of the Judicature Act, 1890, the costs of and incident to all proceedings in the Supreme Court are in the discretion of the Court (b). AVhere a fund, paid into Court by promoters in one branch of the Court, is required to make up the purchase-money for an authorised purchase in a suit in another branch, the promoters cannot be ordered to pay the costs of the conveyance (c). ARTICLE 13. The promoters must pay the costs incurred in the redemption of land tax. So held in Ex parte Northiciclc (d) and Ex parte Trafford {<') before 1845, and in In re London and Brighton Railicay Com- (s) (1860), IJ. & H. 610 ; 30 L. J. Ch. 816 ; 9 W. E. 764 ; 7 Jur. N. S. 909. (t) (1866), L. E. 1 Eq. 467 ; 35 Beav. 297 ; 13 L. T. 784 ; 14 W. E. 632 ; overruling y?e Buckingliamshire llailwaij Cumpaiuj (1850), 14 Jur. 1065; and In re Oxford, dx., RaiJuxnj Compauy (I860), 27 Beav. 571; 29 L. J. Ch. 245. ill) (LS71), 19 W. E. 549. i.r) 1S76 , 1 Ch. D. 477 ; 33 L. T. 803 ; 24 W. E. 359. (//) Iv re Arden (1894), 70 L. T. 506; In re Jintchcrs' Company (1885), 53 L T. 491. See also Dral-c v. Trefusis (1875), L. E. 10 Ch. App. 364; 33 L."t.'85; 23W. E. 762. Iz) hire Ht. Thomas's Ihspital (1863), 11 W. E. 1018 ; aid,', p. 199; Ex parte St. John's Church, Fulham (1857), 28 L. T. O. S. 173; IJx j'arte Dean ofCavtn-hury (1862), 7 L. T. 240; 10 W. E. 505. (a) (1849), 14 Jur. 236. See also Attorvey-deueraJ v. Rochester Corporation (1867), 15 W.' E. 765 ; 16 L. T. 408 ; Ex parte Kim/s College, Cambridye (1852), 5 De G. & S. 621 ; Ex parte llodye (1848), 16 Sim. 159 ; 12 Jur. 239 ; In re Lovebund's Settled Estates (1861), 30 L. J. Ch. 94. (h) Anfe,\)\). 229, 230. (c) lie P,a,p,es Settled Estates (1866), 14 L. T. 159 ; 14 ^Y. E. 471. (d) (1834), 1 Y. & C. (Ex.) 166. (e) (1837), 2 Y. & C. (Ex.) 522. Tlie Laiuh Clauses Consoliihtticn Act, 1845. 239 jmnyif), Ex parte Beddoes(f)), and In re BetJdem Hospital (h), Sect. 80. under the Lands Clauses Consolidation Act, 1845. In Be London and Briqhfon Bailnaij Company (i) Lord Romilly Jpi"^^'^ °^.,, -^" . . . . Lord Komilly. said: " I am of opinion that this case comes within the provisions of the Lands Clauses Consolidation Act, and that the application of the purchase-money to the redemption of the land tax is a reinvest- ment within the meaning of the 80th section. The costs of it are therefore payable by the railway company." In In re Bethlem Hospital {!:) Jessel, M.E., referring to the jessel, M.R., cases cited above, said : " Looking, then, at the number of these ^"t'ter settled decisions, and at their dates, and finding that the earliest of them by authority, is based on a principle which cannot be considered as obsolete, I consider that I am precluded from considering whether, apart from decision, I should be of the same opinion. I simply follow the decisions and make the order." ARTICLE 14. — Promoters will not be ordered to pay the costs of Cost of dis- . , . . •■ chargins in- dischargmg mcumbrances. cumbrances. So held in Ex parte Ilardwiche (/), Ex parte Sheffield Corpora- tion (m). The purchase of leaseholds by the reversioner is not the buying Purchase of up of an incumbrance, and the promoters must pay the costs (»). ieverek-ner. ^ In Be Bomney (o) a tenant for life paid off an incumbrance, and where tenant •petitioned for the pavment out of Court of the amount of the ^'^3" Y^^ P^^^ 1 ^ ■ ott incum- incumbrance. It was held that the promoters were liable for the brance. costs of the persons interested in remainder expectant on the life estate of such tenant for life. A lessor whose rent is unpaid by the lessee is an incumbrancer, Unpaid lessor and is entitled to have his costs of appearance on a petition for k.^JV'^*^"'^" payment out of Court paid by the promoters (p). (/) (1854), 18 Beav. 608, 611. (.7) (1855), 24 L. J. eh. 175 ; 2 Sm. & Giff. 466. (h) (1875), L. E. 19 Eq. 457; 44 L. J. Ch. 416. (i) Hupra. {k) Supra. (0 (1848), 1 D. M. & G. 297; 17 L. J. Ch. 422. (m) (1855), 21 Beav. 162 ; 25 L. J. Ch. 587 ; 4 W. E. 70; 2 Jur. N. S. 31. See also Ex parte Sheffield Tonm Trustees (1860), 8 W. E. 602 ; Ex parte Corporation of London (1868), L. E. 5 Eq. 418; 37 L. J. Ch. ;375 ; 17 L. T. 439; 16 W. E. 355 ; la re Lord Stanley of Alderleys Estate (1872), L. E. 14 Eq. 227 ; 26 L. T. 822 ; Ex parte Trafford (1837), 2 Y. & C. (Ex.) 522 ; la re Yeates (1848), 12 Jur. 279; In re Mark's Trusts (1877), W. N. 63 ; Ex parte Richards (1890), 25 L. E. Ir. 175. (h) Ex), arte Bishop of London (I860), 2 D. F. & J. 14; 29 L. J. Ch. 575; 2 L. T. 365 ; 8 W. E. 465 ; 6 Jur. X. S. 640 ; Ec pjarte Bean of Manchester (1873), 28 L. T. 184. (o) (1863), 3 N. E. 287. See, however, La re Commissioners of Church Temporalities in Ireland (1874), I. E. 8 Eq. 559. ip) Re London Street, (Treenirirh, and the London, and Chatham and Dover Railway Act (1888), 57 L. T. 673. 240 Code of the Law of Compensation. Sect. 80. Discretion of the Court to award costs under Judi- cature Act, 1890, s. 5. Costs of appli- cation for payment of dividends. Death of one member of lunatic's committee. Where periodical sales of stock are ordered. Costs of petition ren- dered neces- sary by defective order on former petition. Costs of petition for payment of dividends to assignee. These decisions are all prior to tbe Judicature Act, 1890, and under sect. 5 of that Act the Court has a discretion to allow these costs iq). To what extent the Court will order the promoters to- pay them will depend upon the facts of each particular case. The Court will probably follow the old practice, unless good reason is sho^vn to depart from it. ARTICLE 15.— The costs of each application for the payment of dividends will be allowed against the promoters. So held in Ex parte Ecclesiastical Commissioners (?•), where the costs of athdavits and of appearing before the Accountant-General (now the Paymaster- General) in obtaining payment of dividends were allowed. The costs of preparing a power of attorney will also be allowed (.s), Where the fund in Court represented the lands of a lunatic, the dividends are payable to his committee, and where the committee consisted of two persons and one of them died, the Court made an order that the promoter should pay the costs of an application that the dividends might be paid to the other alone. The Court also ordered the past and future dividends to be carried to the credit of the matter of the lunacy, and when so carried to be paid to the petitioner, and further intimated that on any future application the promoters need not be served (0- Where there has been an order for periodical sales of stock and for payment of the proceeds and the dividends on the remaining stock, the promoters must pay the costs of each sale as it occurs. No fresh order is required (u). The costs of a petition for payment of dividends on interim investments must be paid by the promoters although the petition is rendered necessary by a defective order on a former petition, such order having been made in the presence of the promoters {x). Where a petition was presented for payment of the dividends to an assignee, the promoters were held not to be liable for the costs of such petition (?/). (7) In re Schmarr [1902], 1 Ch. 326; 71 L. J. Ch. 219; 8G L. T. 71 ; 50 W E 245 ; ante, pp. 229, 230. (r) "(1870), 39 L. J. Ch. G23. See also Ex parte Athorpe (1839), 3 Y. & 0. 396. (s) Ex parte Innnnbent of (ruilden Sutton (1856), S D. M. & G. 380; 4 W. E. 582. See also In re Oodin, (1847), 10 Ir Eq 222. (0 In re Ryder (1887), 37 Ch. D. 595 ; 57 L. J. Ch. 459 ; oS L. T. /83. {u) In re Edmunds (1866), 35 L. J. Ch. 538 ; lu re Long s Estate (18o3), 1 W R 226 '(T)'ln re Ooe's Estate (1854), 3 W. E. 119; In re Metropolitan Railway Commnv v. Maire (1876), W. N. 245 ; Re Andcnshaic's School (1863), 1 N. E. 255 ; Ex parte Ilordern (1848), 2 De G. & Sm. 203 ; 12 Jur. 846; Re Pryor's Settlement Trusts (1876), 35 L. T. 202. -r ^^ a n.i (j/) In re Byron's Trusts (1859), 7 A\ . E. 36< ; 5 Jur. ^. S. 261. Tlic Lanih Clauses Consolidation Act, 1845. 241 ARTICLE 16. — Where dividends have been ordered to be paid to sect. 80. trustees, and they subsequently die, the promoters will not be ordered -^77" to pay the costs of a petition to pay the dividends to new trustees. petition for 8o held in lie Prijnr's Sctth'ti(r)if I'nists (z), the p^rouml of the dividends to decision being that a defective order had been made on the first niiw trustees. petition for which both parties were to blame. The promoters are not liable for the costs of a})pointing trustees Costs of of a settlement for purposes of the Settled Laud Acts {a). new*t^iBtees ARTICLE 17. — Costs incurred in ascertaining- the parties entitled o'f'settied^^ to the pui'chase-money must be paid by the promoters. Lami Acts. These costs are paj-able by the promoters, because they are not ascei-tainino- costs incurred by litigation to settle adverse claims. In Re Simile- P^i'ties "^ ^ "^ entitled. ton's Estate (I)) Kindersley, V.-C, said: "The references, &c., were rendered necessary by the number of parties entitled, and it was only a proceeding to ascertain who they were. It is certainly not a litis contestntio ; it is only a machinery to ascertain the shares. The company must pay the costs." ARTICLE 18. — Where after payment into Court the owner re- Dealings with settles or mortgages the property, the costs of petitions occasioned pyopeity sub- thereby must be paid by the promoters. payment into This was the decision of Kay, J., in In re BrooshoofV s Settle- ment (c), where after payment of the purchase-money into Court, a testamentary appointment was made by the tenant for life under a power contained in the settlement. After the death of the tenant for life, a petition was presented by her appointees for payment of the money out of Court. In consequence of the terms of the appointment it became necessary to serve the petition upon the trustees of the marriage settlement of two of the appointees, and additional costs were occasioned. Kay, J., held that the pro- moters, having taken the land subject to the possibility that in ordinary events it might be dealt with by way of settlement, must pay the costs (not being costs of adverse litigation) of all parties. Where a person, having become absolutely entitled to the fund Tiesettlement in Court, resettled the property, and subsequently presented a aiasolutely petition for payment of the dividends to himself, it was held that entitled. the promoters were not liable to pay the costs of the petition {d) . (2) (1876), 35 L. T. 202. See also la re Gazette's Trustees (1850), 16 L. T. 0. S. 279 ; He Andenshaw's SdiooJ (1863), 1 N. E. 255. («) In re Wuterford and Limerick liailwaij Company, Ex parte Harlech [1896], 1 Ir. L. E. 507. [}>) (1863), 8 L. T. 630; 11 W. E. 871 ; 9 Jur. N. S. 941. (c) (1889), 42 Ch. D. 250; 58 L. J. Cli. 654; 61 L. T. 320; 37 W. E. 744. See also Be Lxje's Estates (1866), 13 L. T. 664. (d) In re Pick's Settlement (1862), 31 L. J. Ch. 495 ; 10 W. E. 365. L.C. 16 242 Code of the Laiv of Compensation. Sect. 80. Costs of petition rendered necessary liy reconstitu- tion of a charity. Payment out of Court — costs of in- cumbrancers. Order C.."), rule 27 (19). Contest as to distribution of inoney in Court — costs. " Adverse litigation " defined by Jessel, M.R. Inquiry as to what was due to mortgagee m possession. Costs of obtaining construclion of doubtful claim. ^Ybel•e promoters took land vested in trustees of a charity, and a change of interest was caused, not by the act of the trustees, but by the reconstitution of the charity, they were held liable for the costs of a petition rendered necessary by a devolution of title subsequent to the taking of the land {e). Where, after payment into Court, by the promoters, of the purchase-money belonging to a tenant for life and remaindermen, some of the latter mortgaged their reversionary interests in the fund, it was held, on a petition by the owners of the fund and their incumbrancers for payment of the money out of Court, that the promoters were not liable to pay the costs incurred by the mort- gagees in proving their incumbrance (/'). In future cases the Court would probably adhere to the practice laid down in Order 65, rule 27 (19) (g). ARTICLE 19.— A contest as to how the fund in Court is to be divided does not constitute adverse litigation, and the promoters must pay the costs. In Askew V. Wondhead ill) Jessel, M.R., said: "Adverse litiga- tion arises where different parties set up adverse titles to the estate. Here the title was not in dispute, and these costs {i.e., contest l)etireen tenant for life and remaindermen as to division of the fund] are costs arising in the course of administering the pur- chase-money under the Act, and ought, in my opinion, to have been paid by the corporation." In In re Baretuim (i) a petition was presented asking for an inquiry as to what was due on the mortgage, the property taken having been in the possession of the mortgagee. It was held that the promoters must pay the costs. ARTICLE 20.— Costs of determining the construction of a doubtful devise are not costs of adverse litigation. These costs must be paid by the promoters if there is no hostile litigation (A). (e) III re Shukesjmtre Walk ScJwu/ (l.sTi)), 12 Ch. D. 178 ; 48 L. J. Cli. 677; 28 W. R. 148. (f) In re Gouqh's Trusts (1883), 24 Ch. D. 5G9; 53 L. J. Cli. 200; 4<) L. T. 494; 32 W.R. 147. (r/) Fast, p. 244. Seo also In re Olive's Estate (1890), 44 Ch. D. 31G; 59 L. J. Ch. 360 ; 62 L. T. 626 ; 38 W. 11. 459, where all the cases are discussed. [h] (1880), 14 Ch. D. 27 ; 49 L. J. Ch. 370; 42 L. T. 567 ; 28 AY. R. 874; 44 J. P. 570. Seo also Ex parte iirnd ,'Sonthern and IVcsteVJi Hail nay Compavii (1877), 11 I. R. Eq. 497. (/) (1881), 17 Ch. I). 329 ; 29 W. R. 116 (A-) Re (irei/sim's Trusts (1864), 2 II. & M. 504 ; 34 L. J. Ch. 41. See also E'' Tookefs Trusts (1852), 16 Jur. 708; Eden V. Thompson (1864), 2 II. & M. 6. Tlic Lands Clauses Consolidation Act, 1845. 243 ARTICLE 21. — Where the promoters pay money into Court in Sect, 80. order that adverse claims may be settled, they are not liable for p.^,.,^;^ ij^to the costs of a petition for payment out. Court that adverse claims <>ohek\mllc English {I). _ _ '^ClT^''^ Where, in consequence of a suit subsisting, it is necessary to payment out. present a petition in the matter of the company's Act and in the •cause, the company must only pay the costs occasioned by the 2)etition being presented in the matter of the Act (m). Where adverse titles to the property are set up, the promoters Costs occa- •will not be ordered to pay the costs occasioned thereby (h). adverse Where promoters, under two different Acts, took two pieces of claims. land held under the same title, with knowledge that the title was j^ot^retook in dispute, and took a conveyance from both litigants, the Court conveyances , , , - , ,, . . , ,. from rival lield that they, were liable for the costs ot two petitions* tor claimants, investment of the purchase-money (o). ARTICLE 22. — Where the fund in Court comes from several com- Fund paid in panies, the costs of the application for re-investment must, unless there cJj^|;^Q|e3_ are special circumstances, be borne equally by the various companies, apportion- €xcept. the cost of the ad valorem stamp on the assignment and the '"'-'"'^ "^ ^"^*^- surveyor's fee. which must be borne rateably, according to the amounts contributed by each. So held in Ex parte Bishop of London (p). It makes no difference if the amounts deposited by each company are unequal. In Ex parte Perpetual Curate of Bilston (q) two conditional contracts were entered into by the curate for the purchase of lands. One represented 539?. paid into Court by a railway com- pany in respect of lauds taken ; the other represented -Ij-IlJ:/. that bad arisen from the granting of leases under a special Act. The curate presented one petition for the approval of the two contracts. It was held that the railway company ought to pay (1) one-half of the costs of the petition, (2) a rateable proportion of the ad valorem [l) (1865), 12 L. T. 561 ; 13 W. E. 932. (to) Hore v. Smith (1850), 14 Jur. 55. (h) Ex parte Coaper, In re Xorth London Baihaay Conipani/ (1865), 34 L. J. Ch. 373; 11 L. T. 661 ; 13 W. E. 664; 2 Dr. & Sm. 312 ; 11 Jur. N. S. 103 ; Ex parte Fahnvr (1849), 13 Jur. 781 ; Ex parte Yates (1869), 20 L. T. 940 ; 17 W. R. 872; Bradshaiv v. Fane (1862), 3 Dr. 534 ; 1 N. E. 159; 9 Jur. X. S. 166. See also In re Spooner's Estate (1854), 1 K. «& J. 220; In re Lomjivorth (1853), 1 K. & J. 1 ; In re Catling's Estate (1890), W N. 75. (o) /*/ re Btifter/ieJd (1861), 9 W. E. 805. ip) (1860\ 2 D. F. & J. 14; 29 L. J. Ch. 575 ; 2 L. T. 365; 8 W. E. 465 ; followed in 'in re Leigh's Estate (1871), 6 Ch. App. 887, 893 ; 40 L. J. Ch. <;S7 ; 25 li. T. 644 ; 19 W. E. 1105 ; Ex parte Governors of Chrisfs Hospital (1864), 2 H. & M. 166 ; hi re Bi/ron (1863), 1 D. J. & S. 358 ; In re Merton ^'oUerid(je (1868), iS L. T. 849. (7) (1889\ 37 W. E. 460. 16—2 2U Code of tlic Law of Compensation. Sect. 80. Opinion of Jessel, M.ll., as to appor- tionment of costs of re- investment and of pay- ment out. "Where tliere is great inequality the scale fee on purchase is payable rateabh'. Surveyors fee and tid valiirem stamp duty. Where com- panies amal- gamate after taking land. Costs of appearance of parties served. Order iuK rule 27 (19). Tender for respondent's stamp duty ou the conveyance, and (3) one-fourth of the other costs of re-iuvestment under both contracts. In two cases the costs of a petition were ordered to be paid rateably and not equally (r), and this view was approved by Jessel, M.E., in Ex parte GaskcU (s), in cases where the petition was for re-investment, and the costs related to the investigation of title, and the conveyance and stamp, &c. But where the petition is merely for payment out, he said the costs must be paid equally, as the costs were exactly the same whether the amount was large or small. Where there is great inequality in the amounts of the different funds, the rule that the costs must be borne equally does not apply to the scale fee payable on the purchase, and these costs, with the stamp duty and surveyor's fee will be apportioned rateably between the different public bodies (/). In every case the surveyor's fee and the ad valorem stamp duty are payable by the various companies rateably, according to the amount of the funds invested by them ((()• The surveyor's fee is a percentage on the amount of the purchase-money, and the Court will decline to interfere with the discretion of the taxing- master (x) . Where portions of land were taken by four different companies, the undertakings of three of which were subsequently amalgamated,, it was held that the costs of a joint permanent investment of the purchase-moneys must be borne in moieties by the existing com- panies 0/). The same point was decided in Ex parte Gaslrll (z), ARTICLE 23. — Parties served on applications under sects. 69 and 70 need not appear unless their interests are specially affected, and the questions of costs of such parties is regulated by Order 65,. rule 27 (19). Order 65, rule 27 (19) is as follows : " Where any petition in a cause or matter assigned to the Chancery Division is served, and notice is given to the party served that in case of his appearance (r) Ex parte Christ Church (1861), 9 W. E. 474 ; Ex parte Governors of St, Bartholomew's Hospital (1875), L. E. 20 Eq. :3G9 ; 32 L. T. 652. (s) (1876), 2 Ch. D. 3()0 ; 45 L. J. Ch. 268 ; 24 W. E. 752. (t) In re Ih'shojisi/ate Fonudutiou [1894], 1 Ch. 185; 63 ]i. J. Ch L. T. 231 ; 40 W. E. 199 ; 8 E. 50. {u) Ex parte Corpimifinn of London (1868), L. E. 5 Eq. 418 ; 37 375 ; 17 L. T. 489 ; 16 W. E. 355. (r) Attorney-Gincral \ . Drapers' Company (1869), L. E. 9 Eq. 69 ; 651. (//) /•;.'• 7'«>Vr Corpns Christi CoUerjr, Oxfurd (1871), L. E. 13 Eq L.J. <"h. 170; In rr Mari/pnrt Railiraij Jd (1863), 32 Beav. 397, followed. See also Ih- Carlisle and Silloth liaihrai/ Company (1863), 253. (2) (1876), 2 Ch. L). 360; 45 L. J. Ch. 2(}>S ; 24 W. E. 752. . 167 ; 70 L. J. Ch. 21 L. T. 3.34 ; 41 was not 33 Beav. TJie Lands Clauses ConsoUdation Act, 1845. 245 in Court his costs will be objected to, and accompanied by a tender of costs for perusing the same, the amount to be tendered shall be ^'1 10s. The party making such payment shall be allowed the same in his costs, provided such service was proper, but not other- wise ; but this order is wdthout prejudice to the rights of either party to costs, or to object to costs where no such tender is made, or where the Court or judge shall consider the party entitled, notwithstanding such notice or tender, to appear in Court. In any other case in which a solicitor of a party served necessarily or properly peruses any such petition, without appearing thereon, he is to be allowed a fee not exceeding the amount aforesaid." The above rule is the outcome of the earlier decisions of the •Court of Chancery (a), but the amount to be tendered is now reduced to £1 10s. Where the company is served a tender of one sum of £1 10s. is sufficient, although both secretary and solicitor are served {h) . Where the fund in Court had not been dealt with for fifteen jears, it was necessary to serve the official solicitor with an appli- •catiou for payment out. The costs of serving him and of his appearance were ordered to be paid by the party in default, and not by the promoters (c). W^here trustees had created incumbrances on property subse- quently taken, and served the mortgagees with a petition to deal with the fund in Court representing the purchase-money, it was held that in respect of the mortgagees' costs only i'l 10s. and the costs of the affidavit of the service ought to be allowed {d). ARTICLE 24. — Where a petition is presented for interim invest- ment and payment of dividends, the costs of serving incumbrancers wiU not be allowed against the promoters. So held in /;; )'e Morris's Settled Estates (e). Where the incumbrancers were in possession the costs of service and their appearance were allowed (f). This was decided before Order 65, rule 27 (19) was made. («) In re Oore- Lamjturi s Estates (1875), 10 Ck App. 328 ; 44 L. J. Ch. 405 ; 52 L. T. 785 ; 23 W. E. 842 ; lit re Hatdead United Charities (1875), L. E. 20 Eq. 48; Ex parte Jones (1880), 14 Ch. D. 624 ; 43 L. T. 84; In re Fattisun's Elates (187G), 4 Ch. D. 206; In re Dmj'jans Trusts (1869), L. E. 8 Eq. 697 ; In re Olive's Estate (1890), 44 Ch. D. 316; 59 L. J. Ch. 360; 62 L. T. 626; 438 W. E. 459. (I>) In re Mitchell (1881), 17 Ch. D. 515, 517 ; 45 L. T. 60. (c) In re J. Clarke's Estate (1882), 21 Ch. D. 776; 52 L. J. Ch. 88. (d) In re Ilnek's Trusts (1895), 13 E. 637; 39 Sol. J. 601. (e) (1875), L. E. 20 Eq. 470 ; 45 L. J. Ch. 63 ; 23 W. E. 851. See also Re Tlivinas's Trusts (1864), 12 W. E. 546; In re Lancashire and Yorkshire Railimy Con^ianij (1849), 6 E. C. 150; In re Ihuujerford' s Trusts (1857), 3 K. & J. 455 ; Ex parte Ilordern (1848), 2 De G. & S. 263 ; 12 Jur. 846. (/) //( re Nash (1856), 25 L. J. Ch. 20; 1 Jur. N. S. 1082. Sect. 80. costs on service of petition, £1 lO.v. Where fund in Court had not been dealt with for fifteen years — costs due to delay. Where mort- gaged lands are taken. Costs of serving in- cumbrancer nn petition for interim investment. Where mort- gagees are in possession. 246 Code of the Law of Compensation. Sect. 80. Reinvest- ment in land — remunera- tion of solicitor. Broker's commission payable by promoters. ARTICLE 25. — Where there is a re-investment in land, the solicitor's remuneration may be fixed according to the scale pre- scribed by the rules under the Solicitors' Remuneration Act,. 1881. So held in Li re ]\Ierchant Taylors' Company {(j), where the question of the duties and remuneration of a solicitor on the re-investment in land under the direction of the Court is- discussed. ARTICLE 26. — In cases of investment in securities the broker's; commission must be paid by the promoters. So held in Ex parte Corporation of Trinity House (//). The costs j^ayahle by the promoters on a petition by persons absolutely entitled for payment out of Court of the proceeds of sale of the securities include the brokerage payable on sale (0- In deciding this, Cozens-Hardy, J., said : " I cannot hold that there is any reason on principle, and there is certainly none in the authorities, for treating the brokerage in any different way whether the proceeds of sale of investments in Court have to be invested or paid to the party entitled." In In re Gandeeili), where a question as to the payment of increased brokerage by the London County Council was decided^ Buckley, J., said : '* It is plain since the case of Ex parte St. Jolt it Baptist College, Oxford (/), that money paid into Court, as this is, is. * cash under the control of the Court,' and may be invested in any of the securities sanctioned by the Court ; it is plain that the invest- ments it is proposed to make in the present case are investments- in securities now sanctioned by the Coiu't, and I am therefore of opinion that the London County Council are liable to pay the costs of investing in these securities, including, if necessary, the increased cost of brokerage and other charges." In In re West Riding and Lancashire Ilaihray Bill {ni) the Court would not authorise the employment by the petitioners of their own broker. Application ARTICLE 27.~Where an application is made for payment out for payment £ monev paid into Court, the promoters are only liable for the costs. out shiiuld be •' ^ by summons. ■ — • (r/) (18■) [1901], 1 Ch. 923; 70 L. J. <'li. 441; .S4 L. T. 3.S0 ; 49 W. \\. 3,2. (/) (1882), 22 Ch. D. 93; 51 L. J. Ch. 2f)8 ; 4.S L. T. 331 ; 31 W. \\. bb. \m) (187G), W. N. 80. Private broker not authorised. The Lands Clauses Consoliihitioii Jet, 18-15. 2-17 properly incurred on a summons, although the application be made Sect. 80. by petition. This was decided in In re The Lancashire and Yorkshire lutiUva!/ Caini, Slater v. Slater (n). ARTICLE 28. — Section 80 only authorises the Court to make an Costs not order on the promoters to pay costs, not to make an order to pay parUculaT* °^ them out of any particular fund. fi^nd. In In re Xeath and Brecon liailicai/ Compant/ (o), where the promoters had, under sect. 85, taken possession of land before agreement, upon giving a bond and depositing money in Court, it was held that they were entitled, upon fulfilling the conditions of the bond, to have the money repaid, and that the Court cannot, under sect. 80, order payment of costs out of it. Mellish, L..J., said: "I am not satisfied that any of these costs come within sect. 80, but supposing they do, that section only says that it shall be lawful for the Court to order them to be paid, and 1 do not think we ought to construe that as meaning that the Court may direct them to be paid out of any particular funds, for particular funds are generally deposited for particular purposes. I think the clause means only that the Court may make an order upon the company to pay them." ARTICLE 29.— Orders for the payment and taxation of costs must Orders for ^11 J.-U J r 4- on payment and follow the words of sect. 80. taxation of costs. So held in In re Ldmunds {}>). In that case there had been an order for half-yearly sales of certain part of stock in which the purchase-money had been invested, and for payment of the proceeds of each sale, together with the dividends on the remaining stock, to a tenant for life, and for a taxation and payment of costs. The Court decided that the taxing-master might, without a fresh order, tax the costs of each such periodical call as it occurs. And with respect to the couveyaiice.s of lands, be it sect. 8i. enacted as follows : Conreyances. 81. Conveyances of lands to be purchased under the pro- Form of visions of this or the Special Act, or any Act incorporated couveyances. therewith, may be according to the forms in the schedules (A.) and (B.) respectively to this Act annexed, or as near (//) (1S95), 64 L. J. Ch. 688 ; 72 L. T. 627 ; uute, pp. 208, 209. (o) (1874), L. E. 9 Ch. App. 263; 43 L. J. Ch. 277 ; 30 L. T. 3_; 22 W. B. 242. See also Ex parte Great Xorthern ilaihraij L'ompaioj (1847), 5 E. C. 269 ; 16 Sim. 169. {]•) (1866), 35 L. J. Ch. 538. 248 Code of the Law of Compensation. Sect. 81. Sect. 82. Cost of conveyances. Costs of ascertaining what is to be convej^ed not payable by promoters. thereto as the circumstances of the case will admit, or by- deed in any other form which the promoters of the under- taking may think fit ; and all conveyances made according to the forms in the said schedules or as near thereto as the circumstances of the case will admit shall be effectual to vest the lands thereby conveyed in the promoters of the undertaking, and shall operate to merge all terms of years attendant by express declaration, or by construction of law, on the estate or interest so thereby conveyed, and to bar and to destroy all such estates tail, and all other estates, rights, titles, remainders, reversions, limitations, trusts, and interests whatsoever, of and in the lands comprised in such conveyances which shall have been purchased or compen- sated for by the consideration therein mentioned ; hut although terms of years be thereby merged, they shall in equity afford the same protection as if they had been kept on foot, and assigned to a trustee for the promoters of the undertakino' to attend the reversion and inheritance. 82. The costs of all such conveyances shall be borne by the promoters of the undertaking, and such costs shall include all charges and expenses incurred, on the part as well of the seller as of the purchaser, of all convey- ances and assurances of any such lands, and of an}' out- standing terms or interests therein, and of deducing, evi- dencing, and verifying the title to such lands, terms, or interests, and of making out and furnishing such al)stracts and attested copies as the promoters of the undertaking may require, and all other reasonable expenses incident to the investigation, deduction, and verification of such title. ARTICLE 1. — Promoters are not liable for costs inciu'red in ascer- taining what is to be conveyed. In III re Hampstead Junction Raihcay Conipani/, Ex parte Buck (q), the promoters took some houses belonging to the vendors and left others. It Avas held that the promoters were not liable for the cost incurred in employing a surveyor to apportion the ground rent between the houses taken and those not taken. Pasfe "Wood, V.-C, said : " The conveyance is a })erfectly distinct thing from that which is to be conveyed, and from preliminary negotiations. The conveyance begins when you have ascertained what is to be con- veyed, and the provision of the Act is, that the company arc to pay the costs of verifying the title, and the expenses of conveyance." {/>i/lij,s (1802). 3 iJe G. J. & S. 341 ; 32 L. J. Vh. 102. ('•) In re Spooiier (1855), 1 Iv. cV: J. 220. Where heir- at-law of mortgagee could not be discovered. The Lamh Chiuses Consolidation Act, 1845. 251 the promoters to pay the costs of deducing title and of conveyance in Sect. 82. the absence of a special provision in the special Act. ^^^ ~~_ So held in In re Strachans Estate {d) and In re Londim and 1^^^^*^^ i'\ f Green nicli Iladicay Company, Ex parte Addey's Charity (e). costs of conveyance. 83. If the promoters of the undertaking and the party sect. 83. entitled to any such costs shall not agree as to the amount Taxation of thereof, such costs shall be taxed bv one of the taxino-- costs of con- masters of the (yourt of Chancery [or hy a master in Chanrery in Ireland,] upon an order of the same Court, to be obtained upon j)etition in a summary way by either of the parties ; and the promoters of the undertaking shall pay what the said master shall certify to be due in respect of such costs to the party entitled thereto, or in default thereof the same may be recovered in the same way as any other costs payable under an order of the said Court, or the same may be recovered by distress in the manner herein- Ix^fore provided in other cases of costs ; and the expense of taxing such co.sts shall be borne by the promoters of the undertaking, unless upon such taxation one sixth part of the amount of such costs shall be disallowed, in which case the costs of such taxation shall be borne by the party whose costs shall be so taxed, and the amount thereof shall be ascertained by the said master, and deducted by him accordingly in his certificate of such taxation. The words iu italics have been repealed by the Statute Law Revision Act, 1892. ARTICLE 1. — The Coui't has jiuisdiction to review taxation by a Review of master under this section. taxation by the Court. In SandbaeJi Cluirify Trustees v. XortJt Staffordshire Railway Company {/) Brett, L.J., said: "The case is not like the cases where costs are taxed by one of the taxing-masters in the Court of Chancery under sect. 88 of the Lands Clauses Consolidation Act, 1845, and where it is said that the taxation may be reviewed; in those cases the taxation proceeds upon an order obtained upon a petition, and therefore the Court of Chancery would have jurisdiction to review the master's taxation, for it is like the taxa- tion of costs in any case in the Court of Chancery, and therefore that Court would have jurisdiction to review the master's taxation."' ('/) (1S51), 9 Hare, 184 ; 20 L. J. Ch. 511 ; 15 Jur. 505. (e) (1843 , S Hare, 22; 12 L.J. Ch. 51.3; 3 R. C. 119. (/) (1877), 3 Q. B. D. 1 ; 47 L. J. Q. B. 10 ; 37 L. T. 391 ; 2(5 W. R. 229. See also Owtn v. I (imlini and X(irfJi-]]'estern liailwdi/ ('odijxdu/ (1867), L. R. 3 Q. B. 54 ; 37 L. J. Q. B. 35 ; 17 L. T. 210; 16 W.' R. 125; 7 B. & S. 758. 252 Code of the Law of Compensation. Sect. 83. Xo taxation after paj'- meiit. Sect. 84. Jintrij II It Ja/ulx. Paj'ment of price to be made previous to entry, except to survey, kc. Non-com- ])liaiice with sect. 8-1— tresjiass. Where acts done do not amount to a taking of possession. Where pio- moters entered for purposes of survej- with- out notice. ARTICLE 2. — Promoters cannot tax the costs of conveyance after payment by them of such costs. So held in Ex parte SonierviUe (g). And with respect to the entry upon lands by the promoters of the undertaking, be it enacted as follows : 84. The promoters of the undertaking shall not, except by consent of the owners and occupiers, enter upon any lands which shall be required to be purchased or per- manently used for the purposes and under the powers of this or the Special Act, until they shall either have paid to every party having any interest in such lands, or deposited in the bank, in the manner herein mentioned, the purchase- money or compensation agreed or awarded to be paid to such parties respectively for their respective interests therein : Provided always, tJiat for tlie purpose merely of surveying and taking levels of such lands, and of probing or boring to ascertain the nature of the soil and of settino; out the line ot the works, it shall be lawful for the promoters of the undertaking, after giving not less than three nor more than fourteen days notice to the owners or occupiers thereof, to enter upon such lands without previous consent, making compensation for any damage thereby occasioned to the owners or occupiers thereof ARTICLE 1. — If no consent is given, and the promoters have not complied with sect. 84, they can be proceeded against as trespassers. So held in llamsden v, Manchester, Soitth Janction, l(:c., llail- way Company (//). Where the contractors of the promoters entered upon the land, and brought waggons, rails, and implements on to the land, but did not commence work, or do any damage, an injunction was refused on the ground that the acts done did not constitute a taking of possession within the meaning of the Act(/). Where the promoters entered on the land merely for the purpose of surveying and setting out the line of works without giving the notice under sect. 84, the Court refused to grant an injunction upon an undertaking being given by the promoters that they would [), 10 Ir. Eq. GO; I'incliin v. BUirkwdll Jidi/ivdi/ (Jvmpauy (1855), 5 I). iM. & a. 801 ; 1 K. & J. 36; 24 L. J. C"h. 417; 1 Jur.' X. S. 241. (?) ,St((ii Lord Watson said: "I venture to think that no right of entry is- given by sect. 85 to promoters who neither have made an agree- ment to purchase land (leaving the price to be ascertained in manner therein stipulated), nor have created, by notice in terms of sect. 18, an inchoate statutory contract of purchase and sale." In this case Earl Cairns, L.C., and Lord Blackburn did not differ from Lord Watson, but in Great Western Railway Company v. (,i) (18S3), '22Ch. D. 25. (//) (1S87), W. N. p. 201. {<■) (1884), 9 A. C. 480 ; 53 L. J. Ch. 812 ; 50 L. T. 637 ; 32 W. K. 929 ; 48 J. P. 372. The Lands Clauses Consolidation Act, 1845. 257 Sicindou, lie, Eaihraij Cow pan [/(d). Lord Brarawell said that Sect. 85. sect. 85 supposes that an agreement may be come to after proceed- contT^ ines have been taken as therein mentioned; in other words, he opinion assumes that sects. 16 — 68 have no application to proceedings ^y Lord under sect. 85. Bramwell. Promoters must fulfil all statutory conditions before entering Statutory conditions upon the lands (e). must be com- plied with. ARTICLE 3.— An entry under sect. 85 can be made at any time ^^^.^^ ^^^ ^^ before the expu-ation of the time for the completion of the works of made at any the undertaking, provided it is made bona fide, and the lands are ™raUo°atif bona fide required. time for completion of In Tiverton, d'C, Eadicaij Company \. Loosemore {/) the special ^-orks. Act of the railway company enacted that the powers of the company for the compulsory purchase of lands should not be exercised after the expiration of three years from the passing of the Act ; and that if the railways were not completed within five years from the passing of the Act, then, on the expiration of that period, the powers granted to the company should cease, except as to so much thereof as was then completed. A few days before the expiration of the three years the company served a notice to treat upon a landowner. No agreement was come to and the compensation was not assessed. Thirteen days before the expiration of the five years, the company, having complied with the requirements of sect. 85, entered and proceeded to make the railway, the landowner objecting and resisting. The House of Lords decided that, whether the railw^ay could or could not have been completed within the thirteen days, the entry under sect. 85 was lawful ; that the company could not be restrained by injunction, but were entitled to remain and complete the railway after the expiration of the five years. In Salishunj v. Great Xorthern Railway Company {fj) it was Entry after held that a company who had given notice to treat within the ti^ie'^flxed by prescribed period might enter after it had expired. special Act. In Doe d. Armitstead v. North Staffordshire Bailicay Company {h) Entry before it was held that where a company had entered under sect. 85 before tSe^or^ ° {d) (1884), 9 A. C. 787 ; 53 L. J. Ch. 1075 ; 51 L. T. 798; 32 W. ^ J. P. 821. See also Langham v. Great Xorthern Railiray Compani E. 957; 48 J. P. 821. See also Langham v. Cireat Northern Railiray Compani/ (1847), 1 De G. & S. 486 ; 16 L. J. Ch. 437 ; 5 R. C. 263. (e) Jones v. Stanstead Bailwai/ Compani/ (1872), L. E. 4 P. C. 98; 41 L. J. P. C. 19; 26 L. T. 456; 20 W. E. 417. See also Parhlale Corporation V. West (1887), 12 A. C. 602, 614; 56 L. J. P. C. 66; North Shore Bailwaij Company v. Pi<,n (1889), 14 A. C. 612 : 61 L. T. 525. (/) (1884), 9 A. C. 480; 53 L. J. Ch. 812; 50 L. T. 637; 32 W. E. 929; 48 J. P. 372. ((/) (1852), 17 Q. B. 840 ; 21 L. J. Q. B. 185; 16 Jur. 740. \h) (1851), 16 Q. B. 526; 20 L. J. Q. B. 249; 15 Jur. 944. L.C. 17 258 Code of the IjCiw of Compensation. Sect. 85. compulsory purchase. Promoters not entitled to possession pending action for specific per- formance. After notice to treat and entry an action will not lie against promoters for recovery of the land. Deposit must include com- pensaiion for severance and injurious affection. the expiration of the period prescribed for the exercise of the powers of compulsory purchase, they might continue to hokl the land after the expiration of that period. In Field V. Carnarvon and Llanhcris Railway Company (i) Malins, V.-C, said that promoters had no right to proceed under sect. 85 unless there was an urgent necessity for immediate entry upon the lands, but Lord Selborne, L.C., held that this was not correct, because there were no words in the Act to that effect (A). Where promoters have taken no steps to enter upon the land, they are not entitled, when they are made defendants to an action for specific performance, to have possession given to them pending the action (/) . ARTICLE 4. — Where promoters have given a notice to treat and subsequently entered upon the lands under sect. 85, they are protected from an action by the owner to recover the land from them. In Tiverton, cC-c., liadivay Company v. Loosemore (m) Earl Cairns, L.C., said : *' In my opinion, where there has been a notice to treat, and where, before the price has been ascertained, the company have, under the statute, regularly obtained possession of the land, and proceeded to use it for making a railway, nothing more remaining to be done but the ascertainment of the price, the transaction is one that must go forward and not backward ; the landowner has a continuing right under the statute to have the price fixed and paid, and tliat rifiJit he must pursue. To hold otherwise would, in many cases, work the greatest injustice, not only to the company, but even to the landowner himself, although in this particular case, for some reason not apparent, the respon- dent would prefer to get back his land." An owner must, there- fore, proceed under the sections provided for the purpose of assessing compensation, and is not entitled to an injunction or any equitable relief. ARTICLE 5. — The deposit to be paid into Coui't under sect. 85 must include not only the value of the land but also compensation for severance and injurious affection. So held in Field v. Carnarvon and Llanberis Iitdbray Co)n- p)any {n) ii) (1867), L. K. 5 Eq. 190; ;57 L. J. Ch. 176 ; 18 L. T. 534; 16 W. E. 27.3. \k) Loosemore v. Tivpriori, (i~r., Bailioay Company (1883), 22 Ch. I). 46. See al.so Wiltcy w. Sindh-Eastcrn liai/tcai/ Company (1849), 1 M. & G. 58; 18 L. J. Ch. 201. (/) Jli/) Lumhtrt v. DuhJin, etc., Raihvufi Cum]>uny (1890), 25 L. E. Ir. 1(53. {pii) Goaty V. Manchester, &c., liailtcay Compniiy [1896], 2 Q. B. 439 ; 65 L. J. Q. B. 625 ; 75 L. T. 239; 45 W. E. 83; Caledonian Railway ComjHiuyY. Turcan [1898], A. C. 256; 67 L. J. P. C. 69. ((/) Giles y. London, Chatham and iJocer Hail imiy Company (1861), 1 Dr. & Sm. 406 ; 30 L. J. Ch. 603 ; 5 L. T. 479 ; 9 W. E. 587 ; 7 Jur. X. .S. o09. See also Gardmr v. Cliarinij Cross Raihvaii Company (1862), 2 J. & K. 248; 31 L. J. Ch. 181 ; 5 L. T. 418 ; 10 W. E. 120 ; 8 Jur. X. S. 151. (r) Gibson v. Hammersmith Ralwaij Conqnniij (1863), 32 L. J. Ch. 337; 8 X. T. 43; 11 W. E. 299; 9 Jiu-. X". S. 221. (s) (1876), 2 Ch. D. 201 ; 45 L. J. Ch. 196; 24 W. E. 357. (t) (1848), 2 De G. & S. 55; 5 E. C. 401; 12 Jur. 324. (") (1849j, 12 Beav. 298; 19 L.J. Ch. 153. 17—2 260 Code of the Lair of Compensation. Sect, 85. of their undertaking npon the lands mortgaged, on the ground that the company had not provided for the expenses of reinvestment or for the costs of the mortgagees, or any compensation for the difference of interest. Bond must be ARTICLE 10. — The promoters will be restrained from taking land in accordance until they have given a bond in conformity with the provisions of with sect. So. ^^ " *' '^ sect. 85. So held in Poynder v. Great Xorthcrn Raihcay Company (x), vi'here the promoters gave a bond conditioned to he void if they should " on demand " pay to the plaintiff, or should " on demand " deposit in the Bank of England the amount of the purchase- money. The Court granted an injunction, to be continued until the promoters gave a proper bond in conformity with the Act. In Cotter V. JMetropolitan Raihcay Company (y) the insertion of the words " shall at any time hereafter " before " pay," were held to invalidate the bond. The addition of the words "or otherwise" after "deposit in the Bank of England" were also held to invalidate the bond (^). In the same case it was held that the bond would not be invalid by reason of the addition of the words "heirs, executors, administrators, or assigns " after the name of the party. Where promoters treat with a claimant as the party interested in the land, it is sufficient that the bond secures payment of the compensation money to "the claimant, his executors, &c.," without referring to " the parties interested in the premises " (a). If the claimants are tenants in common, a bond is irregular if the condition is that " if the promoters shall on demand pay to the plaintiffs jointly, lVtc," as separate bonds should be given (/>). Addition of words "on demand." Addition of words "shall at any time hereafter." Addition of words " or otherwise." Where claimants are tenants in common. Two sureties required when bond given by a corpora- tion. No sureties necessary when land taken by the Crown. ARTICLE 11. — Two sureties are required when the bond is given by a corporation as when given by an individual. So held in Barker v. XortJi Staffordshire Railway Companij (c). No sureties are required when land is taken by the Crown {d). (.r) (1847), 10 L. J. Ch. 444 ; 5 E. C. 196 ; 2 Ph. 330 ; 16 Sim. 3. See also Lavt/lutm v. Great Northern lldilivaij Company (1847), 16 L. J. Ch. 437 ; 1 De G. & S. 486 ; 5 E. C. 263. {y) (1864), 10 L. T. 777 ; 12 W. E. 1021 ; 10 Jur. N. S. 1014. (z) Ilosking v. PhiUips (1848), 3 Ex. 168; 18 L. J. Ex. 1 ; 5 E. C. 560; 12 Jur. 1030. i'l) WiUeyx. South- Kusterii Jlailway ComiKUiij (1849), 1 M. & G. 58; IS L. J. Ch. 201. (/() Liiii) h'arl of Jersiy \. Briton Ferry Floatiny Dork Conijiani/ (1869), L. E. 7 E<]. 409. See al.'io 'Winter v. Lord Anson (1823 , 1 S. & S. 434 ; 3 Euss. 488. { j>) El/ton V. I)enhi, ,{t.. Railway Company (1868), li. E. 6 Eq. 14; 37 L.J. Ch. 669; 16W.'E. 1005. - TJir I.diuh Clauar.s Consolidation Act, 1845. 263 and in K'/ton v. DcnhinJt, dr., Ilailiraj/ C'oiiijxini/ (7), the following Sect. 85. order was made. " That the owners of the several rent-charges mentioned in the chief clerk's certificate are entitled to a charge ujion all the lands of the company comprised in their several deeds of charge, and upon all the earnings and protits of the undertaking of the company, in priority to all other the creditors of the com- pany, and that they are, as between themselves, entitled to be paid such rent-charges j*(/r/ pansn. And that the holders of the several mortgage debentures mentioned in the chief clerk's certificate are entitled to a charge upon all the protits of the undertaking of the company, in priority to all the other creditors of the company, except owners of the said rent-charges, and that they are, as between themselves, entitled to such charges, ixiri passuJ" Where the vendor agrees to take security for the payment of the Where vendor purchase-money, he does not thereby lose his lien (r). f 01^ payment.^ Where a vendor has obtained a decree for specific performance of Vendor with a contract of sale he cannot enforce by petition a lieu on the laud ^^^^^^ '^or for the sums due. He may, however, enforce any of the remedies formance which are open to a vendor who has obtained a decree for specific enforce lien performance [s) . o^ t^e land. In a suit for specific performance the Court may order the promoters to pay the purchase-moneys into Court (0- Where an order has been made enforcing a vendor's lien by sale. Enforcement and there are no bids, the Court made an order for resale by public ^jg,j t^^ g^ig auction or by private contract (»)• If the land is unsaleable the no bids— „ . - „ injunction. Court will grant an injunction to restrani the promoters from carrying on their undertaking and from continuing in possession of the land {x). "Where a railway company became insolvent after the railway Injunction was constructed, the Court appointed a receiver with immediate companv possession on the petition of the vendor, but refused to grant an insolvent — receiver injunction, on the ground that if the injunction were granted the appointed land would become useless to both parties (.//). immediate possession. (7) (1869), L. E. 7 Eq. 439 ; 20 L. T. 3S8 ; 17 W. E. 546. (r) Fell V. Midland Counties and Honfh IVates Rallwui/ Companij (1869), 20 L. T. 288 ; 17 W. E. 506. («) Attorney-General v. Sittinyl/onrne and Shcerness liailwaij Company (1S66), L. E. 1 Eq. 636; 14 L. T. 92; 14 W. E. 414. See also Heriot v. London, CliatJtam and Dover Railway Company (1867), 16 L. T. 473. (t) Bond V. Hull and Barimtiy Railway and Dock Company (1887), W. N. 88; Soutii-Easteru Railwai/ Compani/ v. London, Brighton and South Coast Railway Company (1866), 14 W. E. 666. (a) Williams v. Aylf-arte Sferens (1848), 2 I'h. 772; 5 E. C. 437; 13 Jur. 2; Ex j^arte Great Northern Railwai/ Coni/.ani/ (1848), 16 H^im. 169 ; 5 E. C. 269. ('0 (1859), 28 L. J. Ch. 909 ; Johns. 405 ; 7 W. E. 640; 5 Jur. X. S. II 21. See also In re Corporation of Dndley (1881), 8 Q. B. D. 86, 96; 51 L. J. (i. B. 121; 45 L. T. 733; 46 J. V. 340. (0 (1848), 2 De G. c\c S. 55 ; 5 E. C. 401 ; 12 Jur. 324. The Lands Clauses Consolidation Act, 1845. 265 the Accountaut-Geueral of the Court of Chancery [in Enirs Coiisoliddtio)! Act, 1845. 267 ARTICLE 3. — The Coui't will not order payment out to the pro- Sect. 87. moters of the sum deposited unless the vendor join in the petition ^ : " or a copy of it is served upon him. petition for bo held HI hr ]):irt(' South l) ales IiaUirai/ L onqxaii/ (p), m on vendor. which case Kx parte Kastcrii Counties Railicay Comixmy {q) was not followed. In the latter case the Court ordered payment out of the sura deposited upon an affidavit that the vendor's costs, according to the Act, had heen discharged. In a more recent case, in which both the above authorities were cited, Hall, V.-C, dispensed with service on the vendor, on produc- tion of his consent in writing to the withdrawal of the money (/•). Where the funds in Court had been overlooked for a long period, Where funds fifteen years having elapsed since the conveyance, the Court b^en^over-*'^^^ dispensed with service of the petition on the landowner (-s). looked for a The costs of appearance of a vendor who has been served will not ^ ° , ^ - . _ _ Costs of be allowed unless there are special circumstances in the case which appearance of justify his appearance {t). vendor. ARTICLE 4. — Where the promoters have not fulfilled the condition Condition of of the bond, the landowner may petition for the payment out to him i*"]^^]"?^ of the deposit adversely to the promoters. petition by landowner for So held in In re Mntlon'^ Estate (n), where it was contended payment out that the promoters must cither be co-j^etitioners or consent, and deposit. that the order for payment out of the deposit to the landowner could not be made adversely to the promoters. This objection was overruled by Jessel, M.R., who said : " Who is the proper party to apply ? Why, clearly the person entitled to the benefit of the security ; clearly the person who is to have the advantage given by the section, that is to say, the application of the money for his benefit. For that reason the words ' upon a like application ' are omitted from the latter part of the section. It is therefore clear, in my opinion, that the petition may b3 presented by the landowner ; that he is the proper party to present it, and that he may present it adversely to the company." Where the promoters abandoned the purchase with the con- Where the currence of the vendor, it was held, on a petition for re-trausfer of abanlloned the deposit and for cancelling the bond, that the owner was not ^'^^ purchase (/') (1850), 14 ]]eav. 41S; (5 E. C. 1j1 ; 15 Jur. 1145; and in Ex parte LoHiloii ti„(l Niirth-Wi'.stvrit Uailinni ('(unpuini (1887), W. N. 128. (7) (1848), 5 R. C. 210. (/•) Ex parte Mat/or of II,iiy and Stndli Harrow Railway Companij (1898), 78 L. T. 396 ; 46 W. R. 483. (r) (I860), 28 B.-.av. 104 ; 29 L. J. Ch. 462 ; 6 Jur. N. S. 239. (s) llarcie v. South Devon Railway Company (1875), 32 L. T. 1 ; 23 "W. R. 202. Tlie Lands ('huises CoiisoU(hition Act, 1845. 275 ARTICLE 2. — The word " building" extends the provision of sect. Sect. 92. !92 to premises which do not fall within the description of the word „ T — , . T • 1 r- • Jleainiig or ^' house," and to premises connected with manufactories. -building." lu Grosrcnor v. Hampstead Junction liailtvay Conipuny (t) Turner, L.J., referring to sect. 92, said: "I think that the word ■* building ' in that part of the Act was put in for the purpose of extending the provision of the section to other erections which might not fall within the description of the word ' house,' and to buildings connected with manufactories." In liicJiards v. Sw(()isea Iinprocenwnts and Trainwai/s Coin- pant/ (u) Cotton, L.J., said : " Then ' buikling ' and ' house ' 1 also look upon as distinct in this way, that there may be a building which could not be said either in the legal sense or in the ordinary sense to be a house, and that therefore that word was added as something different from that in order to include something not necessarily included in this word 'house.' " ARTICLE 3. — A "manufactory" is a house, building', or land used ]k[eaiiing of for the purpose of manufacturing. factoT^' " In Iiicliards v. Stcansea Iinpvovenient and Tramwai/ti Company {.x) Brett, L.J., said : " The third thing which is mentioned in the section is a manufactory, which may be a house, or may be a building, but which may be something more ; that is to say, it may be more than one house, or more than one building, or it may ■consist of neither house nor building, but only of laud used for a purpose of manufacturing. No part of that section is to diminish any other part. Each thing described is ditfereiit from the others, and it is not circumscribed by the description of any of the others." In that case the plaintiff was the owner of a leasehold house and Cottage useil of five freehold cottages in a street which ran parallel to the street ^^ store-shoi) in which the leasehold house was, the yards at the back of the ■cottages abutting on the back yard and buildings held with the leasehold house. The plaintiff used the house as a dwelling-house and shop, and the buildings behind it as a candle manufactory, ■candle store, bread store, and provision store. One of the cottages was turned into a store shop, and was made to communicate with the house and buildings held with the house, and was used as a back entrance to them. A tramway company gave notice to treat for the five cottages and the yards behind them. The plaintiff gave a counter-notice that the laud proposed to be taken was part •of premises occupied by him as a manufactory, and required the company to take the whole of the premises. The Court of Appetil {t) (1857), 1 De a. & J. 446 ; 26 L. J. Cli. 731 ; 3 Jm-. N. S. J0S5. («) (1878), 9 Ch. D. 425; 38 L. T. 8J3; 26 W. E. 764. (.«) Supra. 18—2 276 Code of ihc Law of Compensation. Sect. 92. Cottages used as warehouses in connection with a manufactory. Where " busi- ness " and " manu- facture" are carried on at different premises. Land enclosed within the wall of a manufactorr. Machinery supplying motive power to manufactory. Promoters must take trade fixtures with maiiu- factoiy. decided that the whole hlock constituted " one house '" within the meaning of the section. Brett, L.J., hekl that the whole block also constituted one " manufactory." In Spnckmdii v. Great Western Raihcay Companij {y) the promoters gave the plaintiff notice to take a house and cottages, separated from a manufactory by a road. The cottages were used as warehouses in connection with the manufactory. It was held that the cottages were part of the manufactory, and that the company could be compelled to take the whole manufactory. Page Wood, V.-C, said: "The chief point for doubt is whether the cottages and dwelling-house proposed to be taken for the railway are part of the manufactory or not. I cannot doubt but that the cottages are, at all events, I am not sure as to the dwelling-house. But the cottages are the only warehouses attached to the manu- factory — the place where all the goods are stored. There must be some place of that sort ; and the circumstance of the road sepa- rating them from the main workshop is not in my view enough to make them a separate property." In Fn'rldin v. Metropolitan Board 'of Works (z) it was held that the " tot-shop " used by a dust collector for sorting dust was not part of a manufactory. In Bennington y. Metropolitan Board of Works (a) it was held that where a business is carried on at one house, and the manu- facture at another and distinct place, promoters are not bound to take both premises if they only require one. In Sparrow v. Oxford, dr., Railway Company (h), land enclosed within the wall that surrounded a manufactory, and used for the deposit of cinders, had no buildings upon it at the time of the notice given by the promoters of their intention to take it nor at the time of the passing of the special Act. Soon after it was covered with buildings, and it was held that the land formed part of a manufactory within the meaning of sect. 92. A mill-goit and weir, connected with a reservoir, from which the motive power of a manufactory is derived, form part of the manu- factory, and promoters were compelled to take tbe whole (c). ARTICLE 4. — Where promoters give notice to take a manufactory they are bound to take trade fixtures. So held in Gibson v. Hammersmith Railway Company (d), (y) (LS55), 1 Jur. N. S. 790. (z) (1S()'2), .31 L. J. Ch. 660 ; 4 T)e G. F. <^- J. 632 ; 10 W. R. 764 ; 7 L. T. 6. (a) (1S,S6), 54 L. T. S37 : 50 J. P. 740. (Z>) (1.S52), 21 L. J. Ch. 731 ; 2 Do G. M. & G. 94 ; 9 Hare, 436; 16 Jur. 703. (r.) Fnrniss V. Midhnul Ealhraii Com/i A. had entered into an agreement with the owner of a meadow at. the end of his garden, that when the meadow, which was then in the occupation of B., should be given up, the owner would grant a lease of it to A., that it might be added to his garden. Before occupation was given up by B., notice was given by the promoters- that they required the meadow for the purposes of a railway. No- notice was given to A., but be informed the company that he claimed an interest in the meadow\ He refused to allow the company to take the portion of the meadow required by them unless, they also took his bouse and garden. It was held that as the meadow was not appurtenant to the bouse at the time of the notice, it did not form part of such house or garden, and that the promoters were not obliged to take his house and garden. ARTICLE 8. — Where an owner builds a house on land after pro- moters have given notice to take the land, they cannot be compelled to take the house. So held in Littler v. Uhjil Improrenwnt Cotninissioners (in)^ The words " part of any house " mean part of any house in existence at the time of the notice. ARTICLE 9.— A leaseholder or other termor is entitled to the benefit of sect. 92. So held in I'tdlin;/ v. Lond<})i, Chatliam and ])io-er ludbray Companii {n). The owner of the fee would not be bound by the acts of the owner of the term, but could exercise his option in respect of his reversion. ARTICLE 10. — Where the premises are held under two demises, the promoters must take all if so required. So held in MacGreyor v. jMetropolilan Ilailicai/ Company (o), {k) r!H95], 2 Ch. .^)71 ; 64 L. J. Ch. 890; 73 L. T. 205; 43 W. E. 698; IS E. 798": (0 (18(53). 8 L. T. 2;i,3; 11 W. E. 179. (w) (1878), W. N. 219. (//) (18(54), 33 L. J. Ch. oO.J, .JOS ; 2 1 ). J. & S. (5(51 ; 33 13eav. (544 ; 10 L. T. 393, 740; 12 \V. I!. 770, 9(59 ; 10 Jur. N. S. (5().>. (") (18(56), 14 L. T. 3j4. Till' Lands Chiust's Consoliihiti!<} Forest Oatt Radicay Company (1892), 67 L. T. 416; 57 J. P. 181. (r) tipHTroir v. Oxford, cfec, liadwuij Compuinj (1852), 2 De G. M. & G. 94; 21 L. J. Ch. 731; 9 Hare, 436; 16 Jur. 703; Finchin v. Loudon and BlackhoaJl liaiiwaij Compainj (1855i, 5 De G. M. & G. 861; 1 K. & J. 36; 24 L. J. Ch. 417 ; 1 Jur. N. 8. 241 ; Funn'ss v. Midland Railwaij Company (1868), L. E. 6 Eq. 473; P\dkm-r y. Somvrstt and Dorset Railway Company (1873), L. E. 16 Eq. 45S; 42 L. J. Ch. 851. See also Great Western Railway Compajn/ v. Swindon, &r.. Railway Cojnpany (1884), 9 A. C. 787 ; 53 L. J. Ch. 1075 ; 51 L T. 798 ; 32 W. E. 957 ; 48 J. P. 821. 280 Code oj the Law of Compensation. Sect. 92. take whole of premises — reasonable time. Dela^' on part of landowner — injunction. Eestrictive clause inserted in special Act does not deprive land- owner of the benefit of sect. 92. On receipt of counter- notice pro- moters may abandon original notice. Where notice to treat validly with- drawn — position of promoters. express their intention to take the whole of the premises within a reasonable time. But this does not necessarily mean that such intention must be expressed before the expiration of their compulsory powers (-■:;). ARTICLE 14. — Where a landowner is guilty of delay the Court will refuse to grant an injunction restraining promoters from taking part only of a house. So held in Barl^ev v. ^sortli Stafofdaliire Ilaihcay Company (t). ARTICLE 15. — A restrictive clause inserted in a special Act for the benefit of a landowner does not operate to deprive him of the benefit of sect. 92, if the Lands Clauses Consolidation Act is incor- porated in the special Act. So held in Sparrow v. Oxford, c(!r., Railway Comjxmy (ii), and followed in Governors of St. Thomas's Hospital v. Cliarlny Cross liailway Co]iij)a))y (.r). In the former case particular l)enelits, such as building arches and making roads, were introduced by special clauses into the special Act for the benefit of the plaintijBf. It was held that this did not deprive him of his statutory right under sect. 92 of the Lands Clauses Consolidation Act, 1845. ARTICLE 16. — "Where an owner serves a counter-notice on the promoters the latter may abandon their original notice. This was decided in Kiiiy v. Wycomhc Hallway Compainj {y), on the ground tbat a notice to take part of a house only, without any act to obtain possession, was not a contract binding on the company. It' a notice to treat is validly withdrawn, tbe promoters are in the same position as if no notice to treat had been given {z). Therefore where the first, second, or any subsequent notice to treat is validly withdrawn, the promoters are in the same position as if no notice bad been given ; and they are entitled to proceed to the assessment of compensation upon the latest notice to treat not validly withdrawn. (h) Schwi)i(je V. Lotutoii and ]>hichiiHiU Ritilioa)/ Coin/xiii// (lS5j), ."} Sni. & Oifi. 30 ; 24 L. J. Ch. -105 ; li W. K. 1260; 1 Jur. N. S. 368. ' (t) (1S48), 2 De G. & Urn. 55; 5 11. 0. 401 ; 12 Jur. 324. See iilso H/xtck- man v. Gii-at Wcdt rii Itailwaij (Joiiijkuui (18i5-J), 1 Jur. N. S. 790. (») (18.>2), 2 I). M. & G. 94 ; 21 L. J. Ch. 731 ; 9 Hare, 43(5 ; 16 Jur. 703. (x) (1861), .30 L. J. Ch. 395 ; 1 J. & II. 400 ; 4 L. T. 13 ; 9 W. 11. 411 ; 7 Jur. M. y. 256. (»/) (1860), 28 Beav. 10 J ; 29 L. J. Ch. 4(52 ; 6 Jur. N. S. 239. See also TJiompson V. Tiitt('iili(nii (Uul Fitrcist (Jute h'(ii/:r(ii/ ('ntitjxiiii/ (1892), (i7 \j. T. 416; 57 J. P. 181. {■■) As/iton Villi' Iran ('oinixnty v. Mai/or «f /»'//n/o/ [1!)()1J , 1 Ch. 591; 70 L. J. Ch. 2.30; KS \u T. 694; 49 W. R. 295; 17 T. L. 11. 18;{. The Lands Clauses Consolidation Act, 1845. 281 In Gricrson v. ClicsJiire Lines Committee (a) the defendants Sect. 92. gave a notice to treut for part of plaintiff's manufactory. The >^otice to plaintiff served 'the defendants with a counter-notice, whereupon J^o^^J^ of^ the defendants gave the plaintiff" notice of their intention to appointmeat apply to the Board of Trade for the appointment of a surveyor Soe"no?Tind to determine the value of the premises comprised in the notice to promoters to -, 11 T, , 1 • 1 j_i 1 • i.-ii' take the whole treat, and of the further lands and hereditaments which the plaintiff premises- could lawfully require, and had required the defendants to take, withdrawal of ^ X J X ' ■!■ 1 • 1 i 1 notice to treat. The plaintiffs then filed a bill, praying for a declaration that the defendants could not take a part of the manufactory without taking the whole. The defendants thereupon gave notice of their inten- tion to withdraw from their notice to treat, offering to pay the plaintiff's costs of suit up to date. The i^laintiff declined the offer. It was held that the defendants' notice of their intention to apply for the appointment of a surveyor did not amount to a binding contract by them to take the property, and that they were at liberty to Avithdraw their notice to treat. ARTICLE 17.— Where a counter-notice is bad the promoters may Counter- notice bad — proceed on their own notice. promoters may act on So held in Ilarvie v. South Devon Eailwaij Company {h). original The acceptance by the solicitors of the promoters of a bad "o'^^^'^- A.ccGi)tnnc6 <5oanter-notice does not bind the promoters (c). bv solicitors of bad counter- And with respect to small portions of intersected land, notice. be it enacted as follows : sect^s. . . . I -i Intersecti'd 93. If any lands not being situate in a town or bunt lamU. upon shall be so cut through and divided by the works as ^^^^^ to leave, either on both sides or on one side thereof, a less iuteJsected quantity of land tlian half a statute acre, and if the owner lands may 1 -' 1 /. 1 1 -1 j_ r j_i insist on sale. of sucli small parcel of land recpnre the promoters oi the undertaking to })urchase the same along with the other land required for the purposes of the Special Act, the promoters of the undertaking shall purchase the same accordingly, unless the owner thereof have other land -adjoining to that so left into which the same can be thrown, so as to be conveniently occupied therewith ; and if such owner have any other land so adjoining, the promoters of the undertaking shall, if so required by the owner, at their own expense, throw the piece of land so left into such («) (1874), L. E. 19 Eq. 83; -l-l L. J. Ch. :Vo; U L. T. 428 ; 2:3 AV. E. 6S. {b) (1875), 32 L. T. 1 ; 23 W. E. 202. ('■) Tn-iidiut'tl v. Loudon and iSotdh-U'tstera Railivatj Coiapanij (1884), ol L. J. Ch. uG.; ; 51 L. T. 894 ; 3:3 W. E. 272. 282 Sect. 93. Meaning of " town." Sect. 94. Promoters of the under- taking may insist on pur- chase where expense of bridges, ice, exceeds the value. Code of the Law of Compensation. adjoining land, l)y removing the fences and levelling the sites thereof, and by soiling the same in a sufficient and workmanlike manner. ARTICLE 1.— The word "town" means the place in which the- dwellings of the inhabitants are so near to each other that they may reasonably be said to be contiguous. This is based on what Lord Hatherley, L.C., said in London and^ South-Westcrn Uaihvay Conipanif v. Blackmore (d). In that case he said, referring to the cases of Bcr/. v. Cottle (e) and Elliott v. Si>nth Derail lladicaji Compaiu/ {/), aud the definitions of the word "town" given in those cases: "That definition amounts to this : that where there is such an amount of continuous occupancy of the ground by houses that persons may be said to be living as it were in the same town or place continuously, there — for the pur- pose of the Railway Acts, and according to the popular sense of the word, and not the legal sense of the word, which would not give at all a sensible definition — the place may be said to be a town." In Falkner v. Somerset and Dorset Radiraij Company {[/} land used as a market garden, and situate Avithiu the municipal boundary of a town, in the immediate neighbourhood of but not completely surrounded by houses, Avas held not to be within a town. 94. 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 a bridge, culvert, or such other communication between the land so divided as the pro- moters of the undertaking are, under the provisions of this or the Special Act, or any Act incorporated therewith, compellable to make, and if the owner of such lands have not other lands adjoining such piece of land, and require the promoters of the undertaking to make such communica- tion, then the promoters of the undertaking may require such owner to sell to them such piece of land, and any dispute as to the value of such piece of land, or as to- what would be the expense of making such communication^ shall be ascertained as herein provided for cases of disputed (rf) (1870), L. E. 4 ir. L. (310 ; 39 L. J. Ch. Tl.'J ; 23 L. T. 504 ; 19 W. E- 305. (f) (1S51), 16 Q. 15. 412 ; 20 L. J. M. C. 162 ; 15 Jur. 721. (/) (1848), 2 Ex. 725; 17 L. J. Ex. 262; 5 E. C. 500; 2 De G. & S. 17:. 12 Jur. 445. (i/) (1873), L. E. IG Eq. 458; 42 L. J. Ch. 851. TJk' I.aiuh Clan.'n's ConsoUdation Act, 1845. 28B compensation ; and on the occasion of ascertaining the value Sect. 94. of the land required to be taken for the purposes of the works, the jury or the arljitrators, as the ease may l)e, shall, if required by either party, ascertain by their verdict or award the value of any such severed piece of land, and also what would l)e the expense of making such com- munication. ARTICLE 1.— The word "such" in this section refers to "small -Cleaning of •• sucli land. portions of intersected land" in the general heading to sects. 93 and 94. So held by the House of Lords in Eastern Counties, cC-c., Ilail- vdi/ Companies v. Marriage (It), after taking the opinion of the judges. The words "such lands" in sect. 94, therefore, do not refer to lauds " not being situate in a town or built upon," mentioned at the begiuning of sect. 93. This question had already been before the Irish Courts, and decided in the same way (/). ARTICLE 2.— Section 51, dealing with the question of costs, is No costs of not applicable to proceedings before a jury under this section. before a"jm-v. In Coht) V. Mid-Wales Raibvan Co)itpaiii/ (k) an inquiry took place before a jury pursuant to sect. 94. The jury found the land of less value than the cost of making a communication. The company had made no otiler for the land previous to the inquiry, and the land-owner claimed his costs under sect. 51. It was held that sect. 51 was not incorporated with sect. 94, and that the landowner was not entitled to the costs of the inquiry. Cockburn, C.J., said : " The machinery of sect. 51 as to costs is not applicable, and therefore the present case as to costs is a easiis o))ussus, and it is not competent to us to supply the omission." Blackburn, J., referring to sects. 51 and 94, said : " Costs cannot properly depend upon an offer, inasmuch as no offer can supersede the necessity of an inquiry, when the parties are not agreed as to the relative cost of tbe land and the approach. The Legislature have not expressly said what is to be done in such a case as to costs; and it cannot be inferred that they intended to saddle the promoters in all cases witli costs. There may be hardships in particular cases, but we cannot legislate." (A) (I860), 9 H. L. C. 32 ; 31 L. J. Ex. 73 ; 3 L. T. 60 ; 8 W. R. 748 ; 6 Jur. N. S. 53. (/) Falls V. Belfast Railway Canpany (1848), 11 Ir. C. L. E. 184 ; 12 Ir. 0. L. R. 233. (A-) (1866), L. E. 1 Q. B. 342 ; 35 L. J. Q. B. 117 ; 14 W. E. 775 ; 12 Jur. K S. 228; ante, p. 132. 284 Sect. 94. Arbitration — costs. Sect. 95. Copyholds. Conveyance of copyhold lands to be enrolled. .Steward entitled to fee on surrender only. Code of tlie Law of Compensation. Where the question is settled by arbitration, the costs follow the provisions in the Arbitration Act, 1889 (/). And with respect to copyhold lands, be it enacted as follows : 95. Every conveyance to the promoters of the iinder- tnking, of any lands which shall be of copyhold or customary tennre, or of the nature thereof, shall Ije entered on the rolls of the manor of which the same shall be held or parcel ; and on payment to the steward of such manor of such fees as would be due to him on the surrender of the same hinds to the use of a purchaser thereof he sl)all make such enrolment ; and every such conveyance, when so enrolled, shall have the like effect in respect of such copyhold or customary lands, as if the same had been of freeliold tenure, nevertheless, until such lands shall have been enfranchised by virtue of the powers herein -after contained, they shall continue subject to the same fines, rents, heriots, and services as were theretofore payable and of right accustomed. ARTICLE 1. — A steward of a manor is entitled under sect. 95 to a fee upon the surrender but not upon admittance. So held in Cooper v. Xofolk Raihray Company {m), where the steward demanded a fee on surrender and another on admittance, on the ground that he was entitled to them by custom. Parke, B., when delivering the judgment of the Court to the effect that only one fee was payable, said : " There are two reasons why the provision may be deemed a perfectly fair one : first, because the Legislature may have considered that if the Act had not passed, the steward would have had no fee at all ; and besides that, the passing of the Act would cause an increase to his business, which would compensate for the smaller fee. The second reason is that the effect of a parliamentary conveyance is to put the purchasers, the company, substantially in no better position than if they had been surrenderees, for the next clause in the statute compels them to enfranchise tlie copyhold on the surrender. They might have done that without admittance, according to the result of the doctrine laid down by the Master of the Rolls in Wilson v. Alien {II), where ho decides it with respect to an admitted heir, and no doubt the same reason applies to surrenderees." (0 Section 2, Scliodulu I. (/), and sect. 24. Ajipcndix B, post. (///) (1849), 3 Ex. iJ4(); IS I>. J. Ex. 170; (J K. C. 24 ; i;3 Juv. 195. (/') (lfS2()), 1 J. & W. (ill ; 21 K. K. 255. The Lauds Clauses CousoIi(J(ttiou Act, 18-15. 285 ARTICLE 2.— On conveyance of a copyhold to promoters, the lord Sect. 95. of the manor is not entitled to a fine on the execution of the l^^.j"^ conveyance by the copyholder or its eni'olnient under sect. 95. entitled to fine on execution In Ecclesiastical Commissioners v. London and South-Wcstern of conveyance Laihvaij Compami{o), Maule, J., said: "As far as the lord is ^ent.^°^° " concerned the statute is silent. It seems to me that in order to o-ive the lord the right contended for, it would have been necessary to go on further to provide that he was to have the fine upon enfranchisement in addition to the compensation." ARTICLE 3.— A conveyance of land to promoters by a copyholder Conveyance in fee passes only such interest as the copyholder could convey with- ^elec?ment^^ out the lord, and on the copyholder's death the lord may seize for by lord. want of a tenant and maintain an action for ejectment against the promoters. So held in Dimes v. Grand Junction Canal Company {p). 96. Witliin three months after the eiirohnent of the sect^e. conveyance of any such copyhold or customary lands, or copyhoH within one month after the promoters of the undertaking iutonchiTed. shall enter upon and make use of the same for the purposes of the works, whichever shall first happen, or if more than one parcel of such lands holdeu of the same manor shall have been taken by them, then within one month after the last of such parcels shall have been so taken or entered on by them, the promoters of the undertaking shall procure the whole of the lands holden of such manor so taken by them to be enfranchised, and for that purpose shall apply to the lord of the manor whereof such lands are holden to enfranchise the same, and shall pay to him such compensa- tion in respect thereof as shall be agreed upon between them and him, and if the parties fail to agree respecting the amount of the compensation to be paid for such enfranchisement the same shall be determined as in other cases of disputed compensation ; and in estimating such compensation the loss in respect of the fines, heriots, and other services payable on death, descent, or alienation, or any other matters which would be lost by the vesting of such copyhold or customary lands in the promoters of the undertaking, or by the enfranchisement of the same, shall be allo\\ed for. (o) (1854), 23 L. J. C. P. 177 ; 14 C. B. 743; IS Jur. 911 ; 2 W. E. 560. (//) (1846), 9 Q. B. 469; 16 L. J. Q. B. 107; 11 Jur. 429. See also Beaufort v. PatrUilc (1853), 22 L. J. Ch. 489; 17 Beav. 60; 1 W. E. 280; 7 E. C. 906; 17 Jur. 682. 286 Code of the Law of Compensation. Sect. 96. Basis of com- pensation under sect. 96. Duty cast on promoters to procure enfranchise- ment and ou lord to enfranchise. The lord can obtain iiuni(hiiinix to compel promoters to enfranchise. ARTICLE 1.— Compensation under sect. 96 must be based upon the value of the lands at the expiration of one month from the entry by the promoters, or of three months from the enrolment of the conveyance, whichever should first happen. This was the decisioD of the Court of Appeal in Loictlicr v. Caledonian llailway Cumpamj (q). lu that case the company took copyhold land in 1873 for the purposes of their undertaking. In 1875 a deed of conveyance by the copyholder, under sect. 95, was entered on the Court rolls. No steps having been taken by the company to obtain enfranchisement, the lord, in 1887, required the company to enfranchise and pay him compensation. By the custom of the manor, a fine of two years' improved annual value was payable on the death of lord or tenant, and a fine of three years' improved annual value on alienation. It was held that, as an obligation on the company to procure enfranchisement, and an obligation on the lord to enfranchise, arose at the expiration of one month from the entry by the company, or of three months from the enrolment of the conveyance, whichever should first happen, the compensation must be assessed as at that period, without regard to the subsequent improvements made by the company ; but that the lord was entitled to the fines which had become payable after that period, and before steps had been taken for enfranchisement, such fines being assessed according to the improved annual value of land. Lindley, L.J., referring to sect. 96, said: "It is quite obvious, from the language of that section, that on the happening of the first of the events mentioned in the section, there is a duty cast upon the promoters to procure enfranchisement, and there is a duty cast upon the lord to enfranchise, and either party can enforce the duty against the other. I take it to be perfectly plain that if the promoters do not proceed to enfranchise, the lord, if he chose, could obtain a mandamus to compel them to do so. As soon as the first of the two events occurs there arises an obligation to enfranchise. That is the key of the whole matter. The rights of the parties are settled as from that time. . . . The meaning of the clause is reasonably plain. If you once get it clearly fixed that the duty to enfranchise arises on the happening of the first of the two events mentioned at the beginning of sect. 90, what is lost by that compulsory enfranchisement under the Act is what is to be compensated for. If there is delay, that is provided for, since the lord gets, under the last part of sect. 96, the same fines, rents, heriots and services as were payable under the custom of the (7) [1892] , 1 Ch. 7;^ ; 61 L. J. Ch. lOS; 40 W. E. 225. Tlie Lands Ciduscs Consolidatiou Act, 1845. 287 manor. Therefore the substance of the enactment seems to me to Sect. 96. be, that in order to ascertain what is payable to the lord, you must have reference to the time when the rights of the parties are fixed, and that is the time which the late Master of the Rolls concluded was the correct time in the case of In re Marquis of Salishunj and London and XoytJt-Western Radway Company {r)." Bowen, L.J., Siiid : "The Act says that when the time comes the promoters shall apply to the lord of the manor to enfranchise the land. It is an ahsulate obligation on the company to apply. It is not said that they may apply, but that they shall apply, and the lord, no doubt, as soon as that moment comes, has the power, if he chooses, of enforcing tliat obligation against the company by mandamus. The rights at that moment are ascertained, the relation between the lord and the company as regards tliose rights is then defined and fixed. That surely must be the period at which the value of the lord's interest in the land ought to be taken." Where copvhold lands have been taken, and the promoters and '^'^''lere land- " . '■ owner and the lord agree to have the compensation assessed under the Copy- promoters hold Act, 1894, the procedure will be governed by sects. 5—10 of '^^"-ee that ' ' ^ o J compensation that Act. shall be assessed under ARTICLE 2.— The lord of the manor is not entitled to a fine on f 'opyhold Act, 1 894. the execution of the conveyance, or its enrolment as part of the r^^. compensation payable on enfranchisement under sect. 96. entitled to a fine on con- So held in Ecclesiastical Commissioners v. London and South- veyance, &:c., Western RaiUcay Company (s). Maule, J., said: "It seems to me eoillpeu^ftion. that the statute puts the lord and the company in this position : that the lord is obliged, like other landlords, to part with his land and his territorial rights to the company, when the Legislature, on passing the Act, considers it to be for the benefit of the public ; and that being so, he is to part with it compulsorily. What is taken away from him is that which a man has who refuses to sell his land; that is taken away for the public good, and the general scope of all these Acts of Parliament is to put tlie landowner in a position of a person from whom his rights are taken away witii his will and pleasure, and to give him that which is reasonable as com- pensation. Now, what is taken away from the lord is the copyhold character of the land, and there is provision made for that by the 96th section, and no more ought to be given him in point of justice than is there provided for; and if you are to say that a fine shall be paid by the company, as upon the alienation, you would be {r) [1892], 1 Ch. 75 (n) ; AV. X. (1879), 214. (s) (1854), 23 L. J. C. P. 177 ; 14 C. 13. 743 ; 2 W. E. 560 ; IS Jur. 911. 288 Code of the Law of Compensation. Sect. 96. "Where lord of the manor is tenant for life. Promoters entitled to acknowledg- ment of their right to production of title-deeds, kc. Sect. 97. Lord of the manor to enfranchise on payment of compensa- tion. saying tbat in tliis compulsory transaction, which the statute- enables the company to enforce against a lord, the company would be put in a different situation from that in which a person would be put who was dealing, without the assistance of the Act of Parlia- ment, with a lord for the enfranchisement of copyhold. That is contrary to the spirit of all these Acts of Parliament, Avhich is that the party should part with his rights on a fair equivalent being paid to him." This case was followed in I)i re l]^iIson's Estates (t). ARTICLE 3. — If the lord of the manor is tenant for life, the com- pensation for the enfranchisement of copyhold land must be invested for the benefit of the estate, and the Copyhold Acts do not apply. So held in In re Wilson's Estates (u). Turner, L.J., said: "An Act passed for the purpose of enabling copyholders to obtain a compulsory enfranchisement cannot alter the provisions of the Act of 1845, passed with a totally different object. The injury which would be done to the tenant for life is fully compensated by the provisions of the Act. The tenant for life gets a benefit which he never could have got by himself. He gets no fines during his lifetime, but he gets the interest of all future fines which may accrue after his death. That is the principle upon which the Lands Clauses Act is framed." ARTICLE 4. — Promoters are entitled to an acknowledgment by the lord of the manor of the right to the production of the title-deeds and of the Coui't rolls, and to an undertaking for safe custody. So held in In re A(ig-Gardner{x). 97. Upon payment or tender of the compensation so agreed upon or determined, or on deposit thereof in the bank in any of the cases lierein-before in that behalf pro- vided, the lord of the manor whereof such copyhold or customary lands shall be holden shall enfranchise such lands, and the lands so enfranchised shall for ever there- after be held in free and common soccage ; and in default of such enfranchisement by the lord of the manor, or if he fail to adduce a good title thereto to the satisfaction of the promoters of the undertaking, it shall be lawful for them, if they think fit, to execute a deed poll, duly stamjted, iu the manner herein-before provided in the case of the purchase of lands by them, and thereupon the lands in (0 (1S62), 32 L.J. Ch. 191; 3 I). J. & S. 410; 2 J. & H. 619; 7L. T. 772; 11 W. E. 294 ; 9 Jur. X. S. 1043. {3) (1884)1 25 Ch. D. 600; 53 L. J. Ch. 347; 49 L. T. 804 ; 32 W. E. 350. The Lands Clauses CousoUdatioii Art, 1845. 289 respect of the eufraiichisemeut whereof such compensation sect. 97. shall have been deposited as aforesaid shall be deemed to be enfranchised, and shall be for ever thereafter held in fi'ce and common soccaoe. O 98. If any such copyhold or customary lands be subject sect. 98. to any customary or other rent, and part only of the land Aijortion- subject to any such rent be required to be taken for the ment of copy- purposes of the Special Act, the apportionment of such '^'^''' '™*^' rent may be settled by agreement between the owner of the lands and the lord of the manor on the one part, and the promoters of the undertaking on the other part, and if such apportionment be not so settled by agreement, then the same shall be settled by two justices ; and the enfran- chisement of any copyhold or customary lands taken by virtue of this or the Special Act, or the apportionment of such rents, shall not affect in other respects any custom by or under which any such copyhold or customary lands not taken for such purposes shall be held ; and if any of the lands so required be released from any portion of the rents to which they were sul)ject jointly with any other lands, such last-mentioned lands shall be charo-ed with the remainder only of such rents ; and with reference to any such apportioned rents, tlie lord of the manor shall have all the same rights and remedies over the lands to which such apportioned rent shall have been assigned or attributed as he had previously over the whole of the lands subject to such rents for the whole of such rents. And with respect to any such lands, being common or sect. 99. waste lands, be it enacted as follows : o,niiii^ la /I fix. 99. The compensation in respect of the right in the soil — of any lands subject to any rights of common shall be paid compensation to the lord of the manor, in case he shall be entitled to the for common same, or to such party, other than the commoners, as shall hdirora^ ^^ be entitled to such ridit in the soil ; and the compen.sation mfinor, *^c., O ' ^ J- ^ IIOW to OG in respect of all other commonable and other rights in or paid, over such lands, including therein any commonable or other rights to which the lord of the manor may be entitled other than his right in the soil of such lands, shall l)e determined, and paid and applied in manner herein- after provided with respect to common lands the right in the soil of which shall belong to the commoners ; and upon payment or deposit in the bank of the compensation so L.c. 19 290 Code of the Law of Compensation. Sect. 99. Land allotted to lord of manor as trustee for inhabitants — compensa- tion. Sect. 100. Lord of the manor, &€., to convey to the jn-omoters of the under- taking on receiving compensation for his interest. Where pro- moters enter without having paid compensation to commoners — action by a commoner for disturbance. determined all such commonable and other riohts shall O cease and be extinguished. ARTICLE 1. — The lord of a manor, to whom commissioners em- powered by an Inclosure Act have allotted waste land of the manor as trustees for certain inhabitants, is not thereby deprived of his ownership of the soil, and he is entitled to such proportion of the pui'chase-money paid for the land by the promoters as represents the value of the soil. So held in Attorney-General v. Meyrick (y), a case which turned upon the construction of sect. 13 of the Christchurch Inclosure Act, 1802. 100. Upon jDajment or tender to the lord of the manor, or such other party as aforesaid, of the compensation which shall have been agreed upon or determined in respect of the right in the soil of any such lands, or on deposit thereof in the bank in any of the cases herein-before in that behalf provided, such lord of the manor, or such other party as aforesaid, shall convey such lands to the promoters of the undertaking, and such conveyance shall have the effect of vesting such lands in the promoters of the undertaking in like manner as if such lord of the manor, or such other party as aforesaid, had been seised in fee simple of such lands at the time of executing such conveyance ; and in default of such conveyance it shall be lawful for the pro- moters of the undertaking, if they think fit, to execute a deed poll, duly stamped, in the manner herein-before pro- vided in the case of the purchase of lands by them, and thereupon the lands in respect whereof such last-mentioned compensation shall have been deposited as aforesaid shall vest absolutely in the promoters of the undertaking and they shall be entitled to immediate possession thereof, subject nevertheless to the commonable and other rights theretofore affectino; the same, until such riohts shall have been extinguished by payment or deposit of the compensa- tion for the same in manner herein-after provided. ARTICLE 1. — If promoters enter upon the land without having paid compensation to the commoners, a commoner may maintain an action against them for the disturbance of his right of common. In Stoneham v. Londoji, Brighton and South Coast Eailway Companji {z), the railway company, having obtained a conveyance from the lord of the manor, entered upon the land without having {y) [1893], A. C. 1 ; G2 L. J. Ch. 313 ; 68 L. T. 174; 1 E. 54 ; 57 J. P. 212. (z) (1871), L. R. 7 Q. B. 1 ; 41 L. J. Q. B. 1 ; 25 L. T. 788 ; 20 W. i\. Ti. Tlie Ltiuils Clauses Consolidation Act, 1845. 2V)1 taken any steps under the Lands Clauses Consolidation Act to Sect. 100. assess tlie compensation due to the plaintiff's predecessor in title, who was entitled to a right of common of pasture over the land. It was held that a commoner could maintain an action for disturb- ance of his rights of common. Cockburn, C.J., said : " We are all of opinion that an action will lie. The company take part of the wastes of the manor with rights of common over the waste, and in order to get full and entire property and possession they must settle not only with the lord as owner of the soil, but with the commoners wlio have rights of common over the wastes. ^Yith regard to their settling the compensation in order to take possession of the land, the Act of Parliament says that when they have done certain things, and have made compensation to the lord, they shall be entitled to possession, but subject to the commonable rights of the commoners ; in other words, that they shall stand in place of the lord. If it rested there, just as the lord would be liable for a disturbance of the rights of the commoners, the company standing in his shoes would be liable to have an action brought against them for any disturbance of those rights. Then the statute goes on to make provision for extinguishing the rights of the commoners, and a certain course is pointed out, which may be pursued in order to ascertain what the commonable rights are, and in order to secure compensation being made. It is only on that being completed that the rights of the commoners are extinguished, and the company obtain the absolute interest in the soil divested of all the rights of the commoners. It is clear from all the provisions of the statute that the initiative is with the company ; if the company do not choose to take that initiative to extinguish the rij^hts of the com- moners, then it is clear to my mind it was not intended that those rights should be extinguished. If those rights are not extinguished, but are disturbed, the ordinary remedy which the commoners have in such a case remains ; and, inasmuch as the company do not take the course prescribed by the statute in order to get the rights of common extinguished, although they have possession by virtue of their agreement and compensation made to the lord, the rights of the commoners in the wastes of the manor remain just as they were before ; and it is the company's own fault, and they have themselves only to blame for not having got those rights extinguished." 101. The compensation to be paid with respect to any sect. loi. such lands, being common lands, or in the nature thereof, compensation the right to the soil of which shall belong to the commoners, for common as well as the compensation to be paid for the commonable 19—2 292 Code of tlic Law of Coiiipc'itsatioii. Sect. 101. uot held of a manor how to be ascertained. Sects. 101 — lOfi do not exclude agreements entered into otherwise than as provided. Sect. 102. A meeting of the parties interested to be convened. Sect. 103. fleeting to appoint a coiniuittoe. and other rights iu or over common hinds the right in the soil whereof shall not belong to the commoners, other than the compensation to the lord of the manor, or other party entitled to the soil thereof, in respect of his right in the soil thereof, shall be determined by agreement between the promoters of the undertaking and a committee of the parties entitled to commonable or other rights in such lands, to be appointed as next herein-after mentioned. ARTICLE 1.— Sections 101 to 106 are not imperative so as to exclude agreements entered into otherwise than as mentioned in those sections. Specific performance will be decreed although the mode of ascertaining compensation provided for in these sections has uot been followed (a). 102. It shall be lawful for the ]3romoters of the under- taking to convene a meeting of the parties entitled to commonable or other rights over or in such lands to be held at some convenient place in the neighbourhood of the lands, for the purpose of their appointing a committee to treat with the promoters of the undertaking for the com- pensation to be paid for the extinction of such commonable or other rights ; and every such meeting shall be called by public advertisement, to be inserted once at least in two consecutive weeks in some newspaper circulating in the county or in the respective counties and in tlie iieighbour- liood in which such lands shall be situate, the last of such insertions being not more than fourteen or less tlian seven days prior to any such meeting ; and notice of such meeting shall also, not less than seven days previous to the holding thereof, be affixed upon the door of the parish church where such meeting is intended to be held, or if there be no such church some other place in the neighbourhood to which notices are usually affixed ; and if such lands be parcel or holden of a manor, a like notice shall be given to the lord of such manor. 103. It shall be lawful for the meeting so called to appoint a committee, not exceeding five in number, of the parties entitled to any such rights ; and at such meeting the decision of the majority of the persons entitled to commonable rights present shall bind the minority and all absent parties. (any (1875), 23 W. E. 86S. llic lAiuds Clauses Consolidation Act, 1845. •i'.);-^ 104. It sliall 1)0 lawful for the committee so cboseD to sect. 104, enter into an agreement with the promoters of the under- committee to takino- fur the compensation to Ije paid for the extinction agree with the n " 1 11 II ■ ^ ^ 1 11 j_^ i)ioraoters of of such commonable and other rights, and all matters the under- relating thereto, for and on behalf of themselves and all taking, other parties interested therein ; and all such parties shall be bound by such agi-eement ; and it shall be lawful for such committee to receive the compensation so agreed to be paid, and the receipt of such committee, or of any three of them, for such compiMisation, shall l)e an effectual dis- charge for the same ; and such compensation, when received, .shall be a|)portioned l>y the committee among the several persons interested therein, according to their respective interests, 1)Ut the promoters of the undertaking shall not be bound to see to the apportionment or to the application of such compensation, nor shall they be liable for the misapplication or nonapplication thereof. ARTICLE 1.— Where the application of the purchase-money involves Suit hy com- questions of difficulty, the committee may commence a suit for the ™|pifcatfon"of purpose of ascertaining the rights of the parties and of apportioning the purchase- , , , . monev. the compensation money. This was done in Xasli v. Coombs {h). lu that case every resident freeman of the borough had the right of annually turning on to a common one head of stock, for a period fixed from time to time by the town council, subject to a payment annually fixed by the town council for every head of stock so turned on ; and this riofht was transferable. A portion of the common was taken by a Compensa- o ^ . tion money railway company, and a suit was commenced by the committee payable to" appointed under sect. 102, to obtain the direction of the Court as n^'^^^ith *'^' to the application of the purchase-money. It was held that the annual rights '' to IjG inVGStGQ resident freemen were not entitled to have the corpus of the ^^,x dividends purchase-monev divided amon<]^st them, but that the proper course paid to them 1 '■' o ' 1 J. j^j time m was to invest the money in land, to be held in trust for the freemen each year from time to time resident within the borough, and that in the "q joyed their meantime the monev oucrht to be invested, and the dividends paid to right of . -, r. " 1 • • 1 1111 common, such resident freemen at the same time in each year as ttiey nao. been accustomed to enter upon the enjoyment of their rights of common. Where a special Act provided that the compensation money Where fund is should be applied for the permanent benefit of the freemen on the for permanent appUcation of the corporation, the Court directed that so many of benefit of ^^ ^ ' • 1 xi freemen they the freemen should be served as would give a certainty that the must be body of freemen as a whole was fairly represented (c). notice oT (i) (l86Sj, L. it. 6 Eq. 51 ; 31 L. J. Ch. (JOO ; 10 W. R. 6(5:j. ^ _ application, (c) ExjMirtt Liticvhi Corporation (1851), 21 L. J. Ch. G21 ; E. C. 738. 294 Code of the Iaiw of Contpensution. Sect. 104. Under luclo- sure Act, 1854, Board of Agriculture may deter- mine who are persons interested in compensation money. Committee may be com- pelled to dis- tribute the compensation money. Claim of right of common must have a legal existence. Costs of successful claimants to share of fund in Court. Applications in chaniljori?. Ill a more recent case, Richards v. Dc Winion{d), it was held that under the Lands Chiuses Consolidation Act, 1845, and the Inclosure Act, 1854 {e), where common lands are taken for a public undertaking, the committee of commoners appointed to receive the compensation money payable in respect of the extinguishment of commonable rights, or, in cases of difficulty, the Board of Agriculture, as the successors of the Inclosure Commissioners, are the proper tribunal to determine who are the persons interested in such money, and what are their interests, and (in the absence of misconduct) the Court has no original power to interfere with the jurisdiction of either body. The Commonable Rights Compensation Act, 1882, also deals with the application of the compensation money for common lands, and gives certain powers to the Inclosure Commissioners (/). In Fox V. Amherst {(j) it was held that a person interested in the compensation money could institute a suit to compel the committee to distribute the purchase-money. In that case the Court ordered the compensation to be divided among the copyhold tenants of the manor and the freeholders within the manor, according to the byelaws. In Austin v. Amhurst{h) it was held that the occupiers of the manor can have no right to a share of the compensation, unless their alleged right of common has a legal existence ; and that they can have no claim by prescription against their own landlords. ARTICLE 2.— Commoners who succeed in establishing their claim to a share of the funds in Court have been allowed three guineas each for costs. This amount was allowed in Waterton v. Burt (/). In Fox V. Amhurst (/.) only two guineas was allowed to each. Applications are now made in chambers where the amount does not exceed =£1,000 (/). Sect. 105. Disputes to be settled as in other cases. 105. If upon such committee being appointed they shall fail to agree with the promoters of the undertaking as to the amount of the compensation to be paid as aforesaid, the same shall be determined as in other cases of disputed compeiii^ation. {d) [1901], 2 Ch. 566: 70 L. J. Ch. 715) ; 84 L. T. 831 ; 50 W. E. 87; 65 J. P. 696. Afiiniifd on appeal, (1903), 1 ( 'li. 507 ; 72 T.. J. ( h. 269. {(■) J'oat. (/) J'o'-^f. (o) (1875), L. J\. 20 Eq. 40;5; 44 L. J. Ch. 66(). (h) (1878), 7 Ch. I). 689 ; 47 L. J. Ch. 4()7 ; 38 L. T. 217 ; 26 W. IX. 312. (/) (1870), 39 L. J. Ch. 425 ; 18 W. 11. 683. (A:) (1S75), L. E. 20 Eq. 403; 44 L. J. Ch. (WG. (0 Order 55, rule 2, sub-s. (2), (infc, pp. 207, 208. The Lands Clauses Consolidation Ad, 1845. 295 "Where the amount of compensation claimed does not exceed Sect. 105. i;50, it is settled by two justices {ni). Comji^sation Where the amount exceeds i.'50 it is to be settled by arbitration — howsettled. or a jury (»). 106. If, upon being duly convened by the promoters of sect. los. the undertaking, no effectual meeting of the parties entitled if nocom- to such commonable or other riohts shall take place, or if, mittee be . „ ., " . , ^ .,, appointed, the taking place, such meetmg lail to appoint such committee, amount to be the amount of such compensation shall be determined by a ^J^g^^r^^J^o^'l ^^ surveyor, to be appointed by two justices, as hereinbefore provided in the case of parties who cannot be found. 107. Upon payment or tender to such committee, or any Sect- lo*?- three of them, or if there shall be no such committee then upoiT^y- uDon deposit in the bank in the manner provided in the like ment of com- 1 „r . i-iinii 1 pensation case of the compensation which shall have been agreed upon payable to or determined in respect of such commonable or other ^j;^|"°^'"^o riohts, it shall be lawful for the promoters of the under- vest, talvino-, if they think fit, to execute a deed poll, duly stamped in the manner hereinbefore provided in the case of the purchase of lands by them, and thereupon the lands in respect of which such compensation shall have been so paid or deposited shall vest in the promoters of the under- takino-, freed and discharged from all such commonable or other rights, and they shall be entitled to immediate pos- session thereof; and it shall be lawful for the Court of Chancery [in England or the Court of Exchequer in Ireland,] by an order to be made upon petition, to order payment of the money so deposited to a committee to be appointed as aforesaid, or to make such other order in respect thereto, for the benefit of the parties interested as it shall tliink fit. The words in italics have been repealed by the Statute Law Revision Act, 1892. ARTICLE 1.— "For the benefit of the parties interested" means '-For the " according to their several rights and respective interests in having J'^^ p^^^^.tfgs an investment of it." interested." In Xash v. Coomhs (o). Page Wood, Y.-C, said: " Then comes sect. 107, which enables the Court ' to order payment of the money (?») Sections 22, 24, anU, pp. 76, 82. {u) Sections 23, 25—37, 3!S— 57, unU-, pp. 77, 78, 83—106, 109—137. (o) (1868), L. E. 6 Eq. 51, 58 ; 37 L. J. Ch. 600; 16 AV. E. 663. 296 Code of the Law of Compensation. Sect. 107. so deposited to a committee to be appointed as aforesaid, or to make such other order in respect thereto for the benefit of the parties interested, as it shall think fit.' That means according to their several r'ujhts and res}icctire interests in Jiaving an investment of it, and dealing with it in that way. The committee have filed a bill for the purposes of the Court dealing with it according to the rights and interests of the several parties, and all I can do now is to take care that the property shall be applied in accordance with the scheme of the Lands Clauses Act, which is according to the several interests of the parties."' Sect. 108. Lands i/i morff/ar/e. Power to . redeem mortgages. And with respect to kinds subject to mortgage, be it enacted as follows : 108. It shall be lawful for the promoters of the under- taking to purchase or redeem the interest of the mortgagee of any such lands which may be required for the purposes of the Special Act, and that whether they shall have pre- viously purchased the equity of redemption of such lands or not, and whether the mortoao-ee thereof be entitled thereto in his own right or in trust for any other party, and whether he be in possession of such lands by virtue of such mortgage or not, and whether such mortgage affects such lands solely, or jointly with any other lands not required for the purposes of the Special Act, and in order thereto the promoters of the undertaking may pay or tender to such mortgagee the principal and interest due on such mortgage, together with his costs and charges, if any, and also six months' additional interest, and thereupon such mortgagee shall immediately convey his interest in the lands comprised in such mortgage to the promoters of the undertaking, or as they shall direct, or the promoters of the undertaking- may give notice in writing to such mortgagee that they will ]»ay otf the principal and interest due on such mortgage at the end of six months, computed from the day of giving such notice ; and if they shall have given any such notice, or if the party entitled to the equity of redenq)tion of any such lands shall have given six months' notice of his inten- tion to redeem the same, then at tlie expiration of either of such notices, or at any intermediate period upon payment or tender by the promoters of the undertaking to the moi't- gagee of the principal money due on such mortgage, and the interest wliicli would become due at the end of six months from the time of giving either of such notices, togetlier witli his costs and expenses, if any, such mortgagee TJw L(i}i(U Chliisrs CnUHoliihitiou Art, 1845. 21)7 shall convey or release his interest in the lands comprised in Sect. i08. such mortgage to the promoters of the undertaking, or as they shall direct. ARTICLE 1.— Promoters who enter upon land without making pro- Piomoters vision for the rights and interests of mortgagees, may be restrained ^^''^^^^^^^ by injunction from remaining in possession. without making pio- In Ihoikeii \. East and ]]\'st India Docks, tC-c, Companij {p) a vision for .-, , ■ . r\ L i- L\ Ti- mortgagees. railway company paid the purchase-money nito Court to the credit of the mortgagor, aud entered upon the lands without any com- munication or negotiation with the mortgagees. It was held that as the rights and interest of the mortgagees had not been secured, they had wrongfully taken possession, and an injunction was granted to restrain them from prosecuting the works of the railway upon the lands mortgaged. Mortgagees are entitled to a notice to treat under sect. 18 as Untgagees . n • , 1 1 1 / \ ^I's entitled parties interested in tiie lands (^}. to a notice to treat. ARTICLE 2. — Mortgagees have no lien upon the money paid into Mortgagees Com-t by promoters before entry upon the lands. ^^'^^^ "^ ^^^"^ •' '^ J jr Upon money So held in Moiiut v. London, Cliatltani and Dover Radicay \f^^^^^^l^^^\Q^ Company (r). sect. 8.^. ARTICLE 3.— In default of payment mortgagees are entitled to an I'l default of assignment by the landowner and the promoters of the land comprised luoitgacrees in their security, ai"e entitie.i to an assignment So held in Martin v. London, Chatham and Dover llailivaij of the land. Company {h). In that case a railway company paid a sum into Court, aud gave the usual bonds to the landowner and to his mortgagees by deposit, aud took possession of the land. The company proceeded with the inquiry into the amount of com- pensation as against tlie landowner, the mortgagees being aware, though without formal notice, of the inquiry, and taking no part in it. The compensation awarded was less than the amount in Court, and was not sufficient to pay the debt due to the mortgagees, and a suit being instituted by them the sum in Court was transferred to that suit, and ordered to stand as a security under the Lands Clauses Consolidation Act. Lord Cranworth, L.C., held that the mortgagees had no lien on the sum in Court ; that they were not {p) (1849), 19 L. J. Ch. 153; 12 Beav. 298. (7) Mdrtin v. Londun, ('liathum and Doctr Iidifivdi/ Coinjiani/ (1866), L. P\. 1 Ch. App. 501 ; :J5 L. J. Ch. 795 ; 14 L. T. 814 ; 14 W. E. 880; 12 Jur. X. .S. 775 ; antt', pp. 62, 68. (r) (1866), L. R. 1 Ch. App. 501; 35 L. J. Ch. 795; 14 L. T. 814; 14 W. R. 880 ; 12 Jur. N. S. 775. («) Supra. 298 Code of the Law of Compensation. Sect. 108. Interest is payable by a vendor to mortgagee in lieu of notice. Sect. 109. Deposit of mortgage money on refusal to accept. Sect. 110. Sum to be paid when mortgage exceeds tbo value of tlie lands. bound by the inquiry ; and were, as equitable mortgagees, entitled, in default of payment, to an assignment by the company and the landowner of the land comprised in their security. ARTICLE 4. lieu of notice. -Interest is payable by the vendor to a mortgagee in In Silencer-Bell v. London and South-Western Railway Com- pany (t), where the mortgagor was settling with the mortgagee, Chitt}^, J., said : " As to the question of payment of interest in lieu of giving six months' notice to the mortgagee, no doubt in ordinary cases there is a duty to give notice ; but sect. 108 of the Lands Clauses Act, 1845, confers the right to redeem, while it does not relieve the vendors from this duty." 109. If, ill either of the cases aforesaid upon such pay- ment or tender, any mortgagee shall fail to convey or release his interest in such mortgage as directed by the promoters of the undertaking, or if he fail to adduce a good title thereto to their satisfaction, then it sliall be lawful for the ])romoters of the undertaking to deposit in the bank, in the manner ]:)rovided by this Act in like cases, the principal and interest, together with the costs, if any, due on such mort- gage, and also, if such payment be made before the expira- tion of six months' notice as aforesaid, such further interest as would at that time become due ; and it shall be lawful for them, if they think fit, to execute a deed poll, duly stamped, in the manner hereinbefore provided in the case of the purchase of lands by them ; and thereupon, as well as upon such conveyance by the mortgagee, if any such be made, all the estate and interest of such inortoaoee, and of all persons in trust for him, or for whom he may be a trustee, in such lands, shall vest in the promoters of the under- taking, and they shall be entitled to immediate possession thereof in case such mortal o;ee were himself entitled to such possession. 110. If any such mortgaged lands shall l)e of less value than the })rincipal, interest, and costs secured thereon, the value of such lands, or the compensation to be made by the promoters of the undertaking in respect thereof, sliall be settled by agreement between the mortgagee of such land, and the party entitled to the equity of redemption thereof on the one part, and the promoters of the undertaking on the other part, and if the parties aforesaid fail to agree (0 (1884), 3;} W. E. 771. TJie Lands Clauses Consolidation Act, 1845. 299 respectiDg the amount of such value or compensation, the sect. no. same shall be determined as in other cases of disputed com- " pensation ; and the amount of such value or compensation, Ijeing so agreed upon or determined, sho,ll be paid by the promoters of the undertaking to the mortgagee in satis- faction of his mortgage debt so far as the same will extend, and upon payment or tender thereof the mort- o-ao-ee shall convey or release all his interest in such morto-aored lands to the promoters of the undertaking, or as they shall direct. ARTICLE 1. — Mortgagees in possession are entitled to the com- Mortgagee in pensation awarded in respect of good-will and loss of profits. entitiedTo , compensation In Ex parte Lainhton (n) the mortgagees were m possession, and for good-will, the umpire awarded a sum of money as compensation, and certified ^^' that a portion of it represented the loss of profit in carrying on the businegs. It was held that the portion awarded for loss of profits was in the nature of compensation for the value of the good-will of the business which passed with the premises. Where the good-will depends ou the personal skill of the Where good- , , -,1 ii • / \ '^\'ill depends mortgagor it does not pass with tlie premises {x). ^^^ jj^^ pei-. t^onal skill of niortgagDr. Sect. 111. 111. If upon such ])ayment or tender as aforesaid being made, any such mortgagee fail so to convey his interest in such mortgage, or to adduce a good title thereto to the J;JXf when satisfaction of the promoters of the undertaking, it shall be refused on lawful for them to deposit the amount of such value or ^^^f^""- compensation in the bank, in the manner provided by this Act in like cases, and every such payment or deposit shall l)e accepted by the mortgagee in satisftiction of his mort- gage debt, so far as the same will extend, and shall be a full discharge of such mortgaged lands from all money due thereon ; and it shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poll, duly stamped, in the manner herein-before provided in the case of the purchase of lands by them ; and thereupon such lands, as to all such estate and interest as were then vested in the mortgagee, or any person in trust for him, shall become absolutely vested in the promoters of the undertaking, and they shall be entitled to immediate possession thereof in case such mortgagee were himself entitled to such possession ; («) (1876), 3 Ch. D. 36 ; 45 L. J. Cli. 841 ; 3o L. T. 18 ; 24 W. E. 1003. See also CJu'ssum v. Dewes (1828), 5 Euss. 29. (.c) Cooper V. Mdropolitan Board of ]Vorls (1883), 25 Ch. D. 472; 53 L. J. Ch. 109 ; 50 L. T. 602 ; 32 W. E. 709; aidr, pp. 220, 223. 300 Code of the Lmr of Compensation. Sect. 111. nevertheless, all rights and remedies possessed by the mort- gcagee against the mortgagor, by virtue of any bond or covenant or otlier obligation, other than the right to such lands, shall remain in force in res])ect of so much of the mortgage debt as shall not have Ijeen satisfied by such payment or dej^osit. Sect. 112. W2. If a j)art only of any such mortgaged lands be Sum to be required for the purposes of the Special Act, and if the ^artoniyof l"*^^"^ ^^ required be of less value tlian the principal money, mortgaged interest, and costs secured on such lands, and the mort- lands taken, gagee shall not consider the remaining part of such lands a sufficient security for the money charged thereon, or be not willing to release the part so required, then the value of such part, and also the compensation (if any) to be paid in respect of the severance thereof or otherwise, shall be settled by agreement between the mortgagee and the party entitled to the equity of redemption of such land on the one part, and the promoters of the undertaking on the other, and if the parties aforesaid fail to "agree respecting the amount of such value or compensation the same shall be determined as in other cases of disputed compensation ; and the amount of such value or compensaTJon, being so • agreed upon or determined, shall be paid by the promoters of the undertaking to such mortofasee in satisfaction of his mortgage debt, so far as the same will extend ; and there- upon such mortgagee shall convey or release to them, or as they shall direct, all his interest in such mortgaged lands the value whereof shall have been so paid ; and a memo- randum of what shall have been so paid shall be endorsed on the deed creating such mortgage, and shall be signed by the mortgagee ; and a copy of such memorandum shall at the same time (if required) ])e furnished by the promoters of the undertaking, at their expense, to the party entitled to the equity of redemption of the lands comprised in such mortoaoe deed. Sect. 113. 113. If, Upon payment or tender to any such mortgagee of De )osi7of ^^^^ amount of the value or com[)ensation so agreed upon or money when determined, such mortgagee shall fail to convey or release to the promoters of the undertaking, or as they shall direct, his interest in the lands in respect of which such compensation shall so have been paid or tendered, or if he shall fail to adduce a good title thereto to the satisfaction of the promoters of the undertaking, it sli;ill l)e lawful foj- tli<' promoters of the refused oi tendei Tli(' Jjiiuls t'l((tiscs CoiisoUddtioii Act, lyi;3. 301 undertaking to pay the amount of sucli value or compen- sect. ii3. sation into the bank, in the manner provided by this Act in the case of moneys required to be deposited in such l)ank, and such payment or deposit shall be accepted by such mortsfairee in satisfaction of his morto-ao-e debt, so far as the same will extend, and shall be a full discharge of the portion of the mortgaged lands so required from all money due thereon ; and it shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poll, duly stamped, in the manner hereinbefore provided in the case of the purchase of lands by them ; and thereupon such lands shall become absolutely vested in the promoters of the undertaking, as to all such estate and interest as were then vested in the mortgagee, or any person in trust for him, and in case such mortoao-ee were himself entitled to such possession they shall be entitled to immediate posses- sion thereof; nevertheless, every such mortgagee shall have the same powers and remedies for recovering or compelling- payment of the mortgage money, or the residue thereof (as the case may be), and the interest thereof respectively, upon and out of the residue of such mortgaged lands, or the portion thereof not required for the purposes of the Special Act, as he would otherwise have had or been entitled to for recovering or compelling payment thereof upon or out of the whole of the lands originally comprised in such morto-ao-e. 114. Provided always, that in any of the cases herein- Sect. ii4. before provided with respect to lands subject to mortgage, Qompen^i- if in the mortgage deed a time shall have been limited for tioutobe payment of the principal money thereby secured, and under "ertaiircases the provisions liereinbefore contained the mortgagee shall if mortgage have been required to accept payment of his mortgage the stipulated money, or of part thereof, at a time earlier than the t"^^*^- time so limited, the promoters of the undertaking shall pay to such mortgagee, in addition to the sum which shall have been so paid off, all such costs and expenses as shall be incurred by such mortgagee in respect of or which shall be incidental to the reinvestment of the sum so paid off, such costs in case of difference to be taxed and payment thereof enforced in the manner herein provided with respect to the costs of conveyances ; and if the rate of interest secured by such mortgage be higher than at the time of the same being so paid oJi' can reasonably be expected to be obtained on reinvestimr the same, regard beino- had to the then 302 Code of the Law of Compensation. Sect. 114. Where pro- moters take possession without pro- viding for the expenses of re- investment, &c. — injunc- tion. current rate of interest, such inorto;a2;ee shall be entitled to receive from the promoters of the undertaking, in addition to the principal and interest herein-before provided for, compensation in respect of the loss to be sustained by him by reason of his mortgage money being so prematurely paid off, the amount of such compensation to be ascertained, in case of difference, as in other cases of disputed compen- sation ; and until payment or tender of such compensation as aforesaid the promoters of the undertaking shall not be entitled, as against such mortgagee, to possession of the mortgaged lands under the provision herein-before contained. ARTICLE 1. — If the promoters have taken possession without pro- viding for the expenses of reinvestment, or for compensation for the difference of interest, an injunction will be granted to restrain them from prosecuting their works on the lands mortgaged. So held in lUoilen v. East and IVest India Docks, cOc, lladway ComjMny (y), where Lord Langdale, M.R. said : " The company has paid into Court, in the name of the mortgagor, a sum of money equal to the value of the land, providing nothing for the expense of reinvestment, nothing for any other costs, and nothing for com- pensation in respect of the difference of interest. I am clearly of opinion that this possession was ^Yrongfully taken ; but the question is what I am now to do, and I think I am not doing anything contrary to what this Court has done in such cases if I grant an injunction to prevent the company from dealing with the land as they intend to do for their own purposes." Sect. 115. ^i^(] with respect to lands charged with any rent service, ite/it-c/u/r(/e.s. rciit-charge, or chief or other rent, or other payment or — incumbrance not hereinbefore provided for, l)e it enacted as follows : Release of lands from rent charges. Land charge with rent- charge in 115. If any difference shall arise Ijctween the promoters of the undertaking and the party entitled to any such idiarge upon any lands required to be taken for the pur- poses of the Special Act, respecting the consideration to be paid for the release of such lands therefrom, or from the portion thereof affecting the lands required for the purposes of the Special Act, the same shall be determined as in other cases of disputed compensation, ARTICLE 1. — Where promoters purchase lands subject to a rent- charge in favour of a lunatic, the committee of the lunatic may, with (j/) (1S4!)), 12 Beav. 298; It) L. J. Ch. 15:3; aiitr, i^p. 2d'J, 297. Tlie Lands Clauses Consolidation Act, 1845. 303 the consent of the Court, release the lands from the rent-charge upon sect. lis. the promoters purchasing, in the name of the lunatic, a G-overnment f^^.^^^^^ annuity of the same yearly amount as the rent-charge. lunatic- purchase of So held in In re Brriccr (z). (Jovernment annuity by [H'omoters. 116. If part only of the lauds charged with any such sect. iie. rent service, rent-charge, chief or other rent, payment, or ^.^i^^^^^j incumbrance, be required to be taken for the purposes of jjart of lands the Special Act, the apportionment of any such charge f'-'^oi charge, may be settled bv agreement between the party entitled to such charge and the owner of the lands on the one part, and the promoters of the undertaking on the other part, and if such apportionment be not so settled by agreement the same shall he settled by two justices ; but if the remaining part of the lands so jointly subject be a sufficient security for such charge, then, with consent of the owner of the lands so jointly subject, it shall be lawful for the party entitled to such charge to release therefrom the lands required, on condition or in consideration of such other lands remaining exclusively subject to the whole thereof. 117. Upon payment or tender of the compensation so sect. ii7. agreed upon or determined to the party entitled to any pypo^iTh, such charge as aforesaid, such party shall execute to the ca-se of refusal promoters of the undertaking a release of such charge ; and if he fail so to do, or if he fail to adduce good title to such charge to the satisfaction of the promoters of the under- taking, it shall l)e lawful for them to deposit the amount of such compensation in the bank in the manner hereiii- liefore provided in like cases, and also, if they think fit, to execute a deed poll, duly stamped, in the manner herein- before provided in the case of the purchase of lands by them, and thereupon the rent service, rent-charge, chief or other rent, payment, or incumbrance, or the portion thereof in respect whereof such compensation shall so have been paid, shall cease and be extinguished. 118. If any such lands be so released from any such sect, lis, charge or incumbrance, or portion thereof, to which they q^^^^Z^o were subject jointly with other lands, such last-mentioned continue ou lands shall alone be charged with the whole of such charge, JjjJen.^"' or with the remainder thereof, as the case may be, and the party entitled to the charge shall have all the same rights {z} (1875). 1 Cli. D. 409; ;3-± L. T. 46(5; '2i W. E. 465. 304 ('ode of tin' Jaiu- of Coinpru>^■ '^ _ " proviso without the license of the lessor. The company objected to com- against plete on the ground that the lessor's concurrence was necessary, a^'?"'^^^'^- It was held that the necessity for the lessor's license is taken away by the operation of the Act, and the Court granted a decree for specific performance against the company. A similar decree was made against the promoters in ]]'illiam-^ v. East London Raihcay Company (h), but the Court declined to order the promoters to serve a notice to treat upon a lessor who refused to enter into an arrangement as to apportionment. ARTICLE 2. — Where one entire rent extends over the land taken Arbitrator has an arbitrator has no power to apportion the rent, but the apportion- appor^joQ ment must be made under sect. 119. rent- So held in In re Ware(r). The apportioned rent is pavable to Apportionei / ^ '■ " rent — when the landlord from the date of apportionment ('/). payable. ARTICLE 3. — A landlord has no lien for arrears of rent upon Landlord has money deposited in Court by promoters as compensation for the arrears of rent tenant's interest in land taken. on money deposited for This was decided in Ex parte Carey (r), where it appeared that tenant's not only were there arrears of rent at the time of the deposit, but that they had since accumulated. ARTICLE 4.— The costs of the apportionment of the rent are pay- Costs of able by the promoters where the purchase-money has been deposited ^^^l Jj j.^^^ ^ in the bank. So held in Ex parte Floicer (J). In affirming the decision of Stuart, V.-C, Knight Bruce, L.J., said: "The Yice-Chancellor («) (1867), L. E. 4 Eq. 112 ; 36 L. J. Ch. 841 ; 16 L. T. 446 ; 15 W. E. 86L (h) (1869), 21 L.T. 524 ; 18 SV. E. 159. {<■) (1854), 9 Ex. 395 ; 23 L. J. Ex. 145 ; 7 E. C. 780. (d) Bait V. Graves (1886), 18 L. E. Ir. 224. (e) (1847). 10 L. T. O. S. 37. (/) (1866), L. E. 1 Ch. App. 599; 36 L. J. Ch. 193; 15 L. T. 25S; 14 W. E. 1016 ; 12 Jur. X. S. 872. L.c. 20 306 Code of the Law of Compensation. Sect. 119. was right in point of principle, precedent, propriety, and substantial justice, in ordering the company to pay these costs, unless it can be shown that under the Act of Parliament he had no jurisdiction to do so. Nothing has been read from the Act of Parliament, and no authority has been produced, showing that he had not that jurisdiction under sect, 80 of the Act, and I am of opinion that his Honour's order is clearly right.'" Turner, L.J., said: "I am clearly of opinion that sect. 80 applies whether the money is deposited under the earlier or the subsequent clauses." Lniuls pur- In Ex 2'>a''te Buclc {(/) the lands were purchased by agreement, chased by ^nd it was held that the promoters were not liable for the costs of agreeraeut — promoters not the apportionment of ground rents. liable for costs ment!^°^ '^'^ 120. Eveiy such lessee as last aforesaid shall Ije entitled Sect. 120. to receive from the promoters of the luidertakiiig compeii- Tena^uTto he satioii foi" the damage done to him in his tenancy by reason compensated, of the Severance of the lands required from those not re- quired, or otherwise by reason of the execution of the works. Sect. 121. 121. If any such lands shall be in the possession of any Comi^n^ation P^'son liaviug uo greater interest therein than as tenant to be made to for a Ycar or fi'oni year to year, and if such person be tenants at ■ ^ ^ ■ • r ii -11 will, &c. required to give up possession ol any lands so occupiecL by liim before the expiration of his term of interest therein, he shall be entitled to compensation for the value of his unexpired term or interest in such lands, and for any just allowance which ought to be made to him by an incoming tenant, and for any loss or injury he may sustain, or if a part only of such lands be required, compensation for the damage done to him in his tenancy by severing the Lands held by him, or otherwise injuriously afieeting the same ; and the amount of such compensation shall be determined 1)y two justices, in case the parties ditfer about the same; and upon payment or tender of the amount of such com- pensation all such persons shall respectively deliver up to the promoters of the undertaking, or to the person appointed by them to take possession thereof, any such lands in their possession required for the purposes of the Special Act. Date for ARTICLE 1.— The date which fixes the rights of promoters and tenants deteTiinmng under sect. 121 is the date of the erivinff of the notice to take the lands. the rifjhts ot ° ° .1 tenant j^ j)^,^, ^ Qrcat Nurtlicni llaiUvaii Companii (//), as the tenant under sect. '_ -^ ^ \ ■" ^^'- (/ (1839), 10 A. & E. 3 ; 1 li. C. 717; 2 P. &U. 243. (m) [1893], 1 Q. B. o33 ; G2 L. J. M. C. 168; CS L. T. 4j4; 41 W. R. 380; 5 R. 270; 57 J. P. 34(5. See also Ihxhy Ilvatli Putihcaii ('omjKini/ v. North [1894], 2 Q. B. 579; (54 I.. J. M. C. 17; 9 li. 751 ; 71 L. T. 533; 5S J. p. 832. (/O (1870), 2 Q. V,. I). 151 ; 4G L. J. Q. B. 4 ; 35 L. T. 551 ; 25 W. P. 41. Jlir Lands Chmses Consolidation Ad, 1845. 809 in which a tenant for the reddue of a tenn having less than one Sect. 121. year to run at the time when possession of the hind is required, might be entitled b}' law to receive compensation, and yet would be unable to obtain it under sect. 121." Where a schoolmaster, who was allowed a house, could be Schoolmastar removed with a three months' notice, his interest was held to be ^vlth^^jree no greater than that of a tenant from year to year (o). months' notice. ARTICLE 3. — Where a tenant from year to year claims compensa- Sect. 121 tion for injui-y to his lands, sect. 121 does not apply unless the tenant •) (1873), L. E. 16 Eq. 521; 29 L. T. 288; 21 W. E. 8S1. See also .SircdiiHia V. Mrtrojiolitaii Jlnihrmj Conqixin/ (1.S63I, 1 H. tS: M. 543 ; 12 W. E. S{)4; 10 L. T. 156. 310 Code of the Law of Compensation. Sect. 121. Joint occupa- tion by partners where pre- mises are leased to one only. A tenant cannot claim part of his compensation under sect. 121, and part under sect. 68. Notice to give up possession not acted on — expenses of tenant. Justices may give their decision verbally. Tenant from year to year who has received legal notice to (juit. Tenant liahlc to his land- lord for current quarter's rent. the rent or give B. notice to quit so long as he continued to pay the rent when due. A., whose lease had some years to run, also agreed verbally with B. to let him remain in the premises for such term of years (not exceeding A.'s term) as B. might desire to continue tenant. A railway company contracted to purchase the interest of B. in the premises, which he described as "held for any terra at tenant's option, but not beyond the term and interest of A., which will expire in 1881." It was held that B. was not a mere tenant from year to year, but had a right to retain possession as long as the landlord's interest existed, and to enforce that right in equity. ARTICLE 5.— The joint occupation of premises by partners, where the premises have been leased to one only, is not necessarily an interest not greater than that of a tenant from year to year, although there be no stipulation as to the term of the joint occupation. So held in lu;i. v. East London Ihnla-aij Compann (t). ARTICLE 6.— A tenant cannot split up his claim by claiming part of his compensation under sect. 121 and the rest under sect. 68. Per Lord Esher, M.R., in Bexley Heath Ilailivay Company v. Xnrth {u). ARTICLE 7.— A tenant from year to year who has received a notice from promoters to give up his premises, and is subsequently informed by them that they do not intend to take possession, is entitled to compensation for any expenses he may have inciu-red owing to the first notice. So held in lu'ii. v. Iloehdalc Improvement Commhsioners (,r)- ARTICLE 8.— The justices may give theii- decision under sect. 121 verbally. So held in Tit'//, v. Boyce Cumhe (y). ARTICLE 9.— A tenant from year to year who has received legal notice to quit, and whose land is not taken until the expu-ation thereof, is not entitled to compensation. So held in Ex parte Mcrrctt {z). ARTICLE 10.— A tenant from year to year who gives up possession to promoters in the middle of a quarter is nevertheless liable to his landlord for the current quarter's rent. So held in Wainicriyht v. llamsden {a). .1 ; 71 L. T. o;3;3; 58 (0 (lSr,7), 17 L. T. 291. (») [1894], '2 U. B. 579; 64 L. J. M. C 17:9 l\. J. r. .s:j2. (.'•) (1S56), 2 Jur. X. 8. 801. (//) (iSfJli), 32 L. J. M. C. ()9 ; 11 W. E. 441. (■:) (1800), 2 I.. T. 471. See also E.t- parte Nndht (1S48). 17 L. J. Ch. 421. (it) (1839), 5 M. & W. 602 ; 1 E. C. 714. See also Mills v. East Loudun The Lauds Clausrs Consolidation Act, 1845. 311 ARTICLE 11. — Where a special Act incorporates the Lands Clauses Sect. 121. Consolidation Act, except "the part with respect to the purchase and j.;xciu^n taking of lands otherwise than by agreement," only sects. 16 to 68, from special which come under the above heading, are excluded. hln6^ cianses Therefore sect. 121 is included iu the Act {h). Consolula.io.i 122. If any party, having a greater interest than a.s Sect. 122. tenant at will, claim compen.sation in respect of any nn- whei^ expired term or interest under any lease or grant of any f^^"^^^^^^^ such lauds, the promoters of the undertaking may require claimed timn such party to produce the lease or grant in respect of which ^4'a?ieaseto such claim shall 1:>e made, or the hest evidence thereof in be produced. his power ; and if, after demand made iu writing l)y the promoters of the undertaking, such lease or grant, or such best evidence thereof, be not produced within twenty-one days, the party so claiming compensation shall be con- sidered as a tenant holding only from year to year, and be entitled to compensation accordingly. 123. And be it enacted, that the powers of the promoters sect. 123. of the undertaking for the compulsory purchase or taking Limir^'time of lands for the purposes of the Si )ecial Act shall not be ^or compui- , „ ,■'• J- . . c 1 -IT -1 sorv purcha-.e. exercised after the expiration ot the prescribed period, and if no period be prescrilK-d not after the expiration of three years from the pas.sing of the Special Act. ARTICLE 1.— A notice given by promoters to a landowner requir- Notice to treat „ , n .-, ■ Til- • • p is an exercise ing his land for the purpose of their undertaking, is an exercise ot ^,f compul-ory the powers for the compulsory purchase of land within the meaning powers within r. . 100 meaning of of sect. 123. sect. 123. So held in Salishiiri/ v. Great XortlirDi Piailirai/ Cuwpatn/ (c), where it was decided that if such notice be given within the pre- scribed period the steps necessary to acquire the purchase of the land may be taken afterwards. The entry on land under sect. 85 is not the exercise of a power for compulsory purchase, but is the exercise of a power for carrying that purchase into effect (d). In Tiverton and Xorth iJeron Haibcai/ C<>>npanij v. Loose- No provision ..,,,..., . ' 1 '" Lands more (e), m which the decision in the previous case was approved, clauses Con- ^ solidatiou Act Cnion (1872), L. E. 8 C. P. 79; 42 L. J. C. P. 46; 27 L. T. o.37 ; 21 W. R. 142. (h) Beg. V. Lord Ma>/or of London (1867), L. E. 2 Q. B. 292 ; 16 L. T. 280 ; Willdus V. Mayor of Birmingham (1883), 25 Ch. D. 78 ; 53 L. J. Ch. 93; 49 L. T. 468. (c) (1852), 17 Q. B. 840; 21 L. J. Q. B. 185; 16 Jur. 740. {d) Doe i. Armitstead v. North Staffordshire Uailiraij Compan}j (1851), 20 L. J. Q. B. 249 ; 16 Q. B. 526 ; 15 Jur. 944. (e) (1884), 9 A. C. 480, 496; oi L. J. Ch. 812; 50 L. T. 637; 32 W. E. 929; 48 J. P. 372. 312 Code of the Law of Compensation. Sect. 123. Lord Blackburn said : " Section 123 of the Lands Clauses Consoli- picsci-ibing a Nation Act requires that there shall be a prescribed period for the period for the exercise of compulsor}- powers of purchase. There is not any pro- of the vision in that Act that there shall be a prescribed period beyond undertaking. ^yi^[f.\i the powers for constructing the railway shall not be exercised. Such a provision is now always inserted." A provision to this effect is now always inserted in the specal Act. Where nothing is done under notice to treat liefore expiration of comptilsory powers. Agreement to sell land to promoters if they should require it. ARTICLE 2.— Where promoters serve a notice to treat upon a landowner, and then do nothing until their compulsory powers have expu'ed, they cannot take land under such notice to treat. So held in liivlimond v. XortJi London Radwivj Company (f). Lord Cairns, L.C., said: "It might be a very beneficial rule to lay down, and I do not say that I dift'er from the Master of the Rolls as to what should be the rule — that where a railway company is limited in time for taking land by compulsion, and is also limited in time for completing the works, then, if they sleep upon their works, when the time for completion of them has come, they should be held disabled from going on with any compulsory purchase. But it is not necessary to lay down any such rule in this case, and I do not desire to be considered as laying down any such rule." In Tiverton and North Devon Radway Company v. Loose- more {g) Lord Blackburn said: "I do not see anything unjust or contrary to principle in holding that if a company delays completing a compulsory quasi-contract for purchase till it can no longer exercise the powers for the sake of which it was entrusted with the power of compulsory purchase, that quasi-contract should, at least at the option of the landowner, be at an end. This was the opinion of Lord Piomilly in lUclintdnd v. Xo)-t]i London llailway Com- pany {h), and though on appeal Lord Cairns did not think it necessary to decide this, he did not, I think, express dissent from it." Where a landowner sold land to a railway company, and agreed that if the company should " require any additional land of the vendor, adjoining or near the land sold, for the purposes of the railway and works, the same should be taken and paid for by the company," it was held that this agreement authorised the company to take adjoining land for the purpose of their works at any time before the period limited by their Act for the completion of the (/•) (1868), L. E. 3 Ch. App. GT9 ; 37 L. J. Ch. 88G ; 18 L. T. 8; 10 W.'R. 449. {<)) (18S4), 9 A. C. 480, 496; 53 L. J. Ch. 812; 00 L. T. 637 ; 32 W. R 929 ; 48 J. 1'. 372. The Lands Clauses Consolidation Ad, 1845. 313 works, and that tliough their compulsory powers bad expired, tbcy Sect. 123. could acquire land under the agreement H) . ARTICLE 3.— Where the land has been rightfully entered upon i,ancl right- within the three years, compensation may be assessed after the ^,poJ^"thiu expiration of the tkree years. ^l^^ec years— ^ compensation. So held in Doc d. Armitstrad v. X<>rfh Staf<»dshire naUtcaj/ Conqmny (/.■), on tlie ground that ascertaining the amount of compensation is not an exercise of a compulsory power on the part of the promoters. ARTICLE 4.— If, by reading the preamble and enacting part of Where pre- the special Act together, no limit is fixed by the Act for the exer- enact^rrg^'part cise of the compulsory powers, the limit is three years, as provided of special Act T_ 1 no lix no limit oy sect. 123. for exercise of So held in Sfymoui- v. London and SoutliAVrstern Badn-ay J^q^^^'J!.^"'"^ Company (/). Where a special Act enacted that the provisions with respect to Where com- I, -1 • • 1 pulsory compulsory purchase should not be put in force until a provisional j.owersnot to order bad been obtained and sanctioned by Parliament, it was held ^'j^^^fj^^*'' that the special Act within the meaning of sect. 123 of the Lands until provi- Clauses Consolidation Act, 1845, was the special Act together with ^'^^J^een ^' the statute confirming a provisional order made thereunder (»(). obtained and o ^ sanctioneti ijy rarliaraent. AdJ with respect to interests in binds which have Ly sect. 124. mistake Ijeen omitted to Ije pai-cliascl Ije it enacted a.s j^^^^ — follows: oni'ittedtohc jyurchaneA. 124. If, at any time after the promoters of the under- — - 1 1, 1 " T 11 1-1 1 +1 ^ Promoters of taking shall have entered upon any lands winch under tlie theunder- provisions of this or the Special Act, or any Act incor- takingem- porated tlierewith, tliey were authorised to purchase, ana purchase which shall be permanently required for the purposes of ;;;^^[fth;^ the Special Act, any party shall appear to be entitled to purchase any estate, ri-ht, or interest in or charge affecting such ;;"^;;*;;'een'''^ lands which the promoters of the undertaking shall through omitted by mistake or inadvertence have failed or omitted duly to '"■s^-'^'^'^- purchase or to pay compensation for, then, whether the period allowed for tlie purchase of lands shall have expired (0 Rdh Ihron Jtailway Vompamj (1851), 20 L. J. (l li. 254 ; 16 Q. B. 539; 15 Jur. 970. (A) (18.39), 5 Jur. X. S. 753; 33 L. T. 0. S. 280. (m) ///■// V. Ihdre [1899], 1 Ir. L. E. 87. 314 Coch' of the Law of Compensation. Sect. 124. or not, the promoters of the undertaking shall remain in the undisturbed possession of such lands, provided within six months after notice of such estate, right, interest, or charge, in case the same shall not be disputed by the promoters of the undertaking, or in case the same shall be disputed then within six months after the riglit thereto shall have been finally estal)lished by law in favour of the ])arty claiming the same, the [)romoters of the undertaking shall purchase or pay compensation for the same, and shall also pay to such party, or to any other party who may establish a right thereto, full compensation for the mesne profits or interest which would have accrued to such parties, respectively in respect thereof during the interval between the entry of the promoters of the undertaking thereon and the time of the payment of such purchase-money or com- pensation Ijy the promoters of the undertaking, so far a& such mesne profits or interests may be recoverable in law or equity ; and such purchase-money or compensation shall be agreed on or awarded and paid in like manner as according to the provisions of this Act the same respec- tively would have been agreed on or awarded and paid in case the promoters of the undertaking had purchased such estate, right, interest, or charge before their entering upon such land or as near thereto as circumstances will admit. Mistake mus^ ARTICLE 1.— To obtain the protection of sect. 124 the mistake of be hand jidr. ^^^ promotcrs niust be a bona fide mistake. Where pro- In TJiomas V. Barry Dock and UaU'cay Company {n), where the moters could promoters could easily have ascertained that the land belonged to lltlVG tlSCGl'- 1 «/ ^^ tained to the plaintiff, the Court held that they were trespassers and must llrnl^ ^^^ P^y s^^h damages as an arbitrator should award, together with the beloDged. costs of the action. Where pro- Where the promoters were found to have possession of more moters were in ,,, , , .-,-,• .^ ■ ^ ■, c p •. -uu possession of hmd than that described m then- books or reference, it was bold,. more land jj-^ g^j^ action for ejectment, that they were entitled to the benefit scribedinbook of SCCt. 124(^0. of reference. Where promoters, after entering upon the land by agreement mortgagee with the ostensible owner, subsequently discovered that there was after entry. ^ mortgage on the land of which they were ignorant at the time of entry, it was held that they were entitled to the benefit of this section {p). {„) (1899), 5 Tunes L. E. .-JfiO. (o) Iljiih' V. Minjur of Maiirhrsfn- (IS^'J), o J)e G. & S. 249; K! Jar. 189, {}/) Jolh/ V. Wiinhltiloii and JJarkiiK/ Il/ CmnjHniii (1801), '61 L. J. Q. B,. 95 ; 1 B, & S. 807 ; 5 L. T, 615 ; 10 W. E. 253 ; G Jur. N. S. 1037. Tltc Lands Clauses Consolidation Act, 1845. 815 "Where, however, the promoters elected to deal with the owners Sect. 124, of the equity of redemption, and not with the mortgagees, to whom where iho- they had given the usual bonds when entering upon the land under moteis dealt sect. 85, Lord Cranworth, L.C., held that sect. 124 did not ofeiiuityof" apply ((l). redemption, '■t.'^ f , . aiul not with In Sfretton v. Great Western liailirai/ Conipanii (r), where the mortgagees. company were aware that they had taken the land of the plaintiff, ^Vhere it was held that they could not proceed under sect. 124. It was knmv'they further held that as the defendants preferred to have the land I'^ve taken an owner s land, valued to an injunction, the land must be valued at the time of decree, and not according to its value when taken. ARTICLE 2. — If the promoters do not dispute the landowner's wiiere title is title they are entitled to remain in undisturbed possession for six promoto's^'^ months after notice of the plaintiff's claim. may remain in undisturbed In Jullt/ V. Wimhledon and Dorldng llaihcay Compa)uj (.s) the possession for company took some land by agreement from the ostensible owner, ' " " " '^' and were afterwards informed by the plaintiff that he was a mort- gagee in fee of the laud. The company did not dispute the title of the plaintiff, who within two months after giving them notice of his title brought an action to eject them. It was held that the action could not be maintained, since, the title not being in dispute, sect. 124 gave the defendants a right to lawful possession of the lands for six months after notice of the plaintiff's claim. In Salishnrij v. Great XortJiern Iladway Companu {t) the Where plaintiff's title was disputed by the company. It was held that jit^e^is ^ the effect of sect. 124 was not, in such a case, to prevent the •li'^i'"''-'!. plaintiff from bringing an action of ejectment to establish his title, but to authorise the Court to stay execution on the judgment. 125. Ill estimating the compensation to be given for any sect. 125. such last-mentioned lands, or any estate or interest in the ^^ — r . f, n, ,^ f ,^ • ^ • How value of same, or lor any mesne profats thereor, the jury, or arbitra- sueh lands to tors, or justices, as the case may be, shall assess the same ^^e estimated, according to what they shall find to have been the value of such lands, estate, or interest, and profits, at the time such lands Mere entered upon by the promoters of the undertaking, and without regard to any improvements (7) Martin v. London, Cludhiun nn(t Borer llaitwcn/ Compani/ (1866), L. E. I Ch. App. 501 ; 35 L. J. Ch. 795 ; 1-1 L. T. 814 ; 14 W. E. 880; 12 Jui-. N. S. 775. (/•) (1870), L. E. 5 Ch. App. 751 ; 40 L. J. Ch. 50; 23 L. T. 379 ; 18 W. E. 1078. (s) (1861), 31 L. J. Q. B. 95 ; 1 B. & S. 807 ; 5 L. T. 615 ; 10 W. E. 253 ; 6 Jur. N. S. 1037. (0 (1858), 28 L. J. C. P. 40; 5 C. B. N. S. 174; 7 W. E. 75; 5 Jur. N. S. 70. See also Doc d. Hyde v. Mayor of Manchester (1852), 12 C. B. 474. 316 Co(b' of til)' Law of Cowpoisation. Sect. 125. or works made in the said lands by the promoters of the undertaking, and as though the works had not been constructed. Sect. 126. Promoters of the under- taking to pay the costs of litigntion as to such lands. " Full costs and expenses" — meaning of. Sect. 127. &tle of 1(1 11(1 . Lands not wanted to l)e sold, or in default to vest in owners of adjoining lands. ^Meaning of '• supcrtiuous land." 126. In addition to the said purchase-money, com- ]iensation, or satisfaction, and before the promoters of the undertaking shall become absolutely entitled to any such estate, interest, or charge, or to have the same merged or extinguished for their benefit, they shall, when the right to any such estate, interest, or charge shall have been disputed 1)y the compauy, and determined in favour of the party claiming the same, pay the full costs and expenses of any proceedings at law or in equity for the determination or recovery of the same to the parties with whom any such litigation in respect thereof shall have taken place ; and such costs and expense.! shall in case the ."iame shall be disjjuted, be settled l)y the proper officer of the Court in which such litigation took place. ARTICLE 1. — "Full costs and expenses" in sect. 126 include costs as between solicitor and client. So held in Doe d. Hyde v. Matjor of Manchester (n). And with respect to lands acquired by the promoters of the undertaking under the provisions of this or the Special Act or any Act incorporated therewith, but which shall not be required for the pui'poses thereof, be it enacted as follows : 127. AVithin the prescribed period, or if no period be prescribed within ten years after the expiration of the time limited 1)y the Special Act for the completion of the works, the promoters of the undertaking shall absolutely sell and dispose of all such superfluous lands, and apply the pur- ehase-money arising from such sales to the purposes of the Special Act : and in default thereof all such superfluous lands remaining unsold at the expiration of such period shall thereupon vest in and Ijecome the property of the owners of the lands adjoining thereto, in proportion to the extent of their lands respectively adjoining the same. ARTICLE 1. — The meaning of " superfluous land " is land acquired by the promoters of the undertaking but not required for the purposes of the undertaking. Per Lord Cairns, L.C., in Great M'estern Jiailicaij ConqxDuj v. (^0 (1852), 12 C. B. 474. Tlic Lands Clauses Consolidatiou Act, 1845. 317 May (v) , where he said: "It appears to me that it may become Sect. 127. superfluous land in one of four different ways. It may be, in tbe rancrmrrv first place, land originally taken under tbe compulsory powers, but become super- taken upon a wrong estimate or calculation of tbe quantity of land four different wbicb would be required for a purpose for wbicli it is afterwards ^^''''J's- found out, by experience, tbat less laud tban was originally sup- "'^ ' posed will be sufficient. Or it may, in tbe second place, be laud Second, wbicb, under tbe provisions of otber clauses witb wbicb your Lord- sbips are familiar, tbe railway company may bave been forced to take by reason of wisbing to take a part only of premises. Tbere, ex hypothcsi, tbat wbicb tbe directors are forced to take is not land wbicb in any sense tbey wisb to take or want for tbe pm-poses of tbeir undertaking — it is tbrust upon tbem for tbe benefit of tbe landowners, and obviously is superfluous land. Or, in tbe tbird Third, place, it may be land taken originally, and required originally, for tbe i^ermanent works of tbe line, but wbicb in tbe course of subse- quent years turns out to bave been occupied by works wbicb are abandoned, and wbicb by reason of tbe abandonment of tbose works originally supposed to be permanent, becomes land no longer required by tbe company. Or it may, in tbe fourtb place, be land Fourth, wbicb bas been allowed to be taken by tbe company, or wbicli lias been forced to be taken by tbe company for temporary purposes, and wbicb bas been taken by tbe company, with tbe intention originally of its being used only for temporary purposes, wbicb temporary purposes bave come to an end. At present I am not sure tbat tbere is any otber kind of land wbicb could be described as superfluous, but all tbose four classes of land are clearly super- fluous land within that definition which I have mentioned, namely, laud wbicb was originally acquired for the purposes of the undertaking, but which is not required for purposes of the undertaking." In this case Lord Selborne said that the word " required " in Meaning of tbe beading to sects. 127 — 132 means " necessary." in heading. Tbe fact that land has not been built upon is not conclusive All the that it is superfluous. All the circumstances must be considered, ^^^'^.^"^je^'^"^''""* For instance, the fact that tbe lands are in a populous town is considered— , , . -.li.iiT 111 land not built a circumstance to raise a presumption tbat tbe lands would be upon— />;<«« required on account of increased traffic on a railway. Questions .'"^''■''• as. to superfluous lands must always depend largely on tbe hona fides of the transaction (.?/) • When the case of Ilooju'r v. Boitvne (.'■) (18741, L. Pv. 7 H. L. 283 ; 43 L. J. Q. B. 235 ; 31 L. T. 137 ; 23 W. E. 141. (v) Hooper V. Bouvhe (1880), 5 A. C. 1 ; 49 L. J. Q. B. 370; 42 L. T. 97 ; 28 W.E. 493; 44 J. P. 327. 318 Code of the Law of Compensation. Sect. 127. Three classes of cases wheie land may be '•requiied for the purposes thereof."' U'liere drain- age of land flows into reservoir from which com- pany's engines are supplied, land not superrtuous. "Where the purpo'^es for which land \\ as actjuired have been fulHlled, land is " super- fluous land." Abandonment of a strip of land. Superfluous land must ]>c separated by a vertical bcjunJarv. was before the Court of Appeal (^), Bramwell, L.J., said: "I am satisfied therefore that the expression ' required for the pitrposes thereof includes at least two classes, namely, lands actually in use on the day with respect to which the matter is to be decided, and also lands which are on that day within a definite and ascertained time intended to be used for the purposes of the railway company. But I think there is also a third class of cases where land may properly be said to be ' required ' for the purpose of the undertaking, that is to say, where at the expiration of the period the land, although not in actual use, will be, owing to the growing traffic of the line, wanted for the railway within a reasonable time, which it is not possible to specify." In this case it was held by Bramwell, L.J., that where the natural drainage of land, belonging to a railway company and demised by them for agricultural purposes, fiows into a reservoir used by them for the supply of water to their engines, the land is not superfluous land. Where at the end of ten years the purposes to which the directors had apj)lied portions of the lands acquired under their compulsory powers had been fulfilled, and the directors allowed persons to occupy these particular portions as garden grounds, subject to a right of re-entry by them on very short notice, it was held that the lands were superfluous lands (a). In Noiion v. London and Xortli-JVestcrn Raihcay Company Qi) a railway company in 1838 bought some land and erected a fence round it. They then made a ditch within the fence, and threw up a bank on which they planted a hedge. As the hedge grew up the fence was allowed to fall into decay, and it was removed in 184(5. From 1854 to 1875 the land between the hedge and the line of the fence was cultivated with the field of the adjoining owner, the rail- way in no way interfering except that their workmen went over it to trim the hedge. It was held that the strip of land between the hedge and the line of the fence was superfluous land. ARTICLE 2.— Superfluous land must be separated by a vertical and not by a horizontal boundary from the land required for the purposes of the undertaking. In In re Metropolitan District liailicay and Cosh (r) a railway (2) (ISTT), 3 Q. B. D. 25S, 275; 47 L. J. Q. B. 437. See also IMtsx. Great Eadvrii Italla-cnj Comjiany (1878), 3 Ex. D. 182 ; 49 L. J. Ex. 197 ; 42 L. T. 1 ; 5 A. C. 7(n). {a) Great Wtstvrn Jlailinn/ (U.mpavy v. Maij (1S74), L. P.. 7 11. L. 283; 43 L J. Q. B. 235 ; 31 L. T. 137 ; 23 W.' R. 141. (/;) (1879), 13 Ch. ]). 208; 41 L. T. 429; 28 W. B. 173. ((■) (1879), 13 Ch. D. G07 ; 49 ]-. J. Ch. 277 ; 42 L. T. 73 : 28 \Y. R. ( See also Betta v. Great Eastern Railway Cvmjiuuy (1878), 3 Ex. D. 182; R. 085. 49 The Lauds Chiusrs Consolidation Act, 1845. 319 company pnrcliased land for the purpose of making an underground Sect. 127. railway. They excavated the soil, constructed the line, and then built an arch over it, and replaced the surface over the arch. It was held that the company were not authorised to sell the vacant space over the arch as superfluous lands. It is clear, therefore, that in such a case a conveyance by the Conditinn of • 1 1 iiTii -i-T *^l*^ ^hat pur- company would be void ; but it has been held that an intending chaser sball purchaser of such lands cannot recover back his deposit from the assume con- 1 J. 1- • vevance by vendor where the conditions of sale provided that no objection promotei-s should be made to the conveyance by the company, and that the ^"'^'^• ]iurchaser should send in his objection to the title within seven days, and he has neglected to do so (d). Land under a railway constructed on arches is not superfluous l-i"(^ ""flcr a '' T 1 p • 1 1 railway con- land within the meaning of sect. 127, and therefore, in the absence structed ou of special powers, the alienation of the land under the arches is I'^^^l'^^^jf ultra rircs (e). The company may let the interior of the arches land. for shops or other business purposes not inconsistent with the purposes for which the company was constituted (/). ARTICLE 3.— Sections 127 to 132 apply whether the land has ^^cts 127 , .1. -i-i. — 1-^2 apply been acquired under the compulsory powers or by agreement with to land the owner. ^^''^t.^"^'', acquired com- So held in Hooprr v. Bourne [q). Bramwell, L.J., said: "I pulsorily or ' , , 1 • 1 r n by agreement, think, also, that sect. 1*27 of that statute and those which toUow are not restricted to cases where land has been acquired under what are called its compulsory powers. No limitation of that kind exists in express terms, and the only mode in which the scope of the sections can be confined so as to suit the defendants' contention is by construing the words in the introductory portion, * under the provisions,' as if they were, ' by virtue of the compulsory powers.' But I see no reason why the limitation suggested should be created. L. J. Ex. 197; 42 L. T. 1 ; 5 A. C. 7 (n) ; MetntjxJitan Fuiihrai/ Company v. I'un-Jrr [1893], A. C. 41G; 62 L. J. Q. B. bo6 ; 69 L. T. 390 ; 42 W. E. 270 ; 57 J. P. 756; 1 E. 264. {erfluous lands. Promoters maj' sell at any time within ten years — at that moment the right of pre- emption arises. It seems to me that the object of these sections is as applicable ta lauds acquired by negotiation, where the special Act confers a power to take them, as to lands which are not so acquired. If a different construction were adopted, it would be hard to draw a line as to the application of these sections " (li). Ifc is different where the promoters are expressly empowered to take lands for extraordinary purposes. In such a case the promoters are left to deal with lands so acquired as any ordinary proprietor may do (i). ARTICLE 4. — Whether lands have become superfluous lands is a question of mixed law and fact. So held by Jessel, M.E,, in Sinitli v. North Staffordshire Rail- ivay Companii (/.). These questions can be more conveniently tried by a judge without a jury. The same view has since been taken by the House of Lords in Maefie v. Callander and Ohait Eaibcaij Companii (/). ARTICLE 5.— "Where promoters, having purchased lands for the purpose of their undertaking, use some and advertise the rest for sale, the latter are superfluous lands. So held in London and South -Western Eaihrai/ Company v. Blaclnnore (m), where the lands were advertised for sale as " surplus lands." In that case Lord Hatherley, L.C., said : " I apprehend that the Legislature meant that right of pre-emption to arise at the very moment when the company chose to sell. The directors may sell at any time they choose within ten years ; they may exercise their choice within that time, but when they do exercise their choice, when they have sold, and when they are about to convey the property to the person to whom they have sold, I apprehend the time has arisen for a person entitled to the pre-emption to come and say, ' You, the directors, plainly and manifestly have thus, by this act of yours, decided and declared that the land is superfluous — because, unless it is superfluous, you are not entitled to part with it. You have attempted to part with it. You have conveyed it, or attempted to do so, and now that attempt has been frustrated my right of pre-emption intervenes, and I want now to assert my right of pre-emption.' " (70 3 Q. B. D. at p. 272. (/) Citi/ of nli(n Hnilirai/ Coni- jxnni (1S71J, L. E. 2 II. L. (Sc.) IGO. See also sects. 12 and 18, aidr, j.p. 39, 40. (/i) (1S8(»), U L. T. 85. (/) [ISilS], A. C. 270 ; G7 L. J. P. C. 58 ; 78 L. T. 5i)8. (/,)) (1870), L. E. 4 II. L. GIO ; 39 L. J. Ch. 713; 23 L. T. 504 ; 19 W. E. 305. Sec also Jhainhamj) v. dieiit Western Itailivay (,V)/;)/)«»// (i8()8), L. E. 3 Ch. App. 745 ; 38 L. J. Ch. 1(52 ; 19 L. T. 189 ; IG W. E. 1155 ; Carinfjhn v. ]Vijro)nl>e Jlai/irm/ ('oni]:aiiij (18G8), L. E. 3 Ch. App. 377 ; 37 L. J. Ch. 213 ; 18L.T. 9G; IG W.E. 494. The Lands Clauses Consolidation Act, 1845. 321 Where a company considered proposals for the purchase of land Sect. 127. adjoining one of their terminal stations, and after the expiration Negotiations of the ten years leased a portion for the building of a district for sale— lease • 11T1 ITT PTT111 1*^^ lands — post office, it was held by the House of Lords that whether the whether land had become superfluous or not was a question of mixed law '^"I'^'-'fluo"^ ^ '- ^ question of and fact, and that on the evidence the land had not become mixed law a. \ and fact. _^ UOUS («)• In order to show that land was sold by a railway' company, it is 'i''^ prove land not sufficient to prove that an auctioneer received directions evidence must for the sale from one of the directors, and that he received the \^ given that the company conditions of sale from the solicitor of the company who attended authorised the sale. Some evidence should be given that the director or ^^ ^^ ^' solicitor was authorised by the company to ofier the particular land for sale (o). ARTICLE 6. — Lands taken by promoters under their compulsory Lauds bon,', powers are not at the expiration of ten years superfluous lands if are not'\'uper- they are bona fide retained for the purposes of the undertaking. fluous lands at expiration In BettSY. The Great Eastern Raiheaij Conipany {p) land had of ten years. been hond fide retained by the company, but, from want of funds, the company had been unable to apply it to the purposes of the company, and they had in the meanwhile let it out to j^early tenants, and applied it to purposes for which, in its then condition, it was suitable. It Avas held that it had been retained by the company with a reasonable expectation of using it for the purposes of the undertaking, and consequently it did not at the expiration of ten years from the time fixed for the completion of the works, vest in the adjoining owner. ARTICLE 7. — Land used for accommodation works, which the Land used for promoters may be compelled to make, is not superfluous land. tionwrnksnot So held in Beauchanip v. Great Western Radivaij Company (q), iaud, where the company bought a small piece of land from the plaintiff, and used a strip of it to provide a means of communication between the severed lands of another landowner. ARTICLE 8.— Where land acquired by promoters has been taken i 'i",) (1874), L. R. 7 n. L. 283 ; 43 L. J. Q. B. 235 ; 31 L. T. 137 ; 23 W. R. 141. The Lands Clauses Consolidation Aet, 1845. '^'2.S land. It is an absolute, complete parliamentary vesting of the Sect. 127. land." If the promoters remain in possession after the expiration of ^^'liere pro- TiTiT Mil raoters remain the ten years, and let the land to a tenant, the latter will be, in pos.session nevertheless, estopped from denying the title of the promoters (x). aad let land to a tenant. ARTICLE 12. — Where there is more than one adjoining owner Where there superfluous lands must be divided in proportion to the frontage of onradloin^n"' each. owner. In Moodij V. Corhett {y) Erie, C.J., who delivered the judgment of the Court (Erie, C.J., Pollock, C.B., Martin and Pigott, BB., Keating and Montague Smith, JJ.), said : ** We are bound to construe and apply the statute, and we do so as follows : Where there arc several adjoining properties in contact icitJi tJte superfiiious land in question, ice tliink it should he divided among the owners of sueh adjoining properties in proportion to the frontage of each ; and hj J'rontage we mean what would be the length of line of con- Meaning of^ tact of each property if such line was made straight from the point '^ of intersection of the boundaries on one side to the point of intersection of the two boundaries on the other side." A different principle seems to have been adopted in a later case, where the question arose between two adjoining owners, whose land lay on either side of a strip of land crossed by the railway at right angles (z). ARTICLE 13. — Where promoters purchase land and premises used Where pro- Tor a special purpose with an easement enjoyed therewith, they are Squire land entitled to the enjoyment of such easement so long as they use the and premises premises for such special pui'pose, which they may lawfully do until ^gcj J^' such time as such land and premises are requu'ed for the purposes i)urpo.se with of the undertaking or are sold as superfluous land, In Bai/lei/ v. Great JVestern Raihcay Company (a) the company purchased a piece of land on which was a stable. The vendor had made a road from the highway to the stable over his own land and for his own convenience. The soil of this road was not conveyed to the company, and no express mention of it was made in the conveyance. It was held that a right of way passed to the com- pany under the general words of the conveyance, and that the (x) London and North-Western Railway Company v. Wt-st (1867), L. E. 2 C. P. 553 ; 36 L. J. C. P. 245. 0/) (1866). L. E. 1 Q. B. 510; 35 L. J. Q. B. 161; 14 \\. E. 737; 31 L.J. Q. B. 166; 5B. & S. 859. (2) Smith V. Hmith (1868) L. E. 3 Ex. 282 ; 38 L. J. Ex. 37. («) (1883), 26 Ch. D. 434; 51 L. T. 337. See also Attorney-General v. TeddirKjton Urban Council [1898], 1 Ch. 66; 67 L. J. Ch. 23; 77 L. T. 426; 46 W. E. 88; 61 J, P. 825 ; Attorney-General v. Hanwell Crbaa Coiui'r.il [1900], 2 Ch. 377 ; 69 L. J. Ch. 626 ; 82 L. T. 778; 48 W. E. 690. 21—2 easement. 324 Code of the Law of Compensation. Sect. 127. Sale bj' pro- moters must be absolute. stable having been purchased by the company for the purposes of their undertaking, the company were entitled to claim a right of way, so long as they used the premises as a stable ; and this they might lawfully do till such time as the premises were required for the special purposes of the railway, or were sold as superfluous land. ARTICLE 14, — The sale of superfluous lands by promoters must be an absolute sale without reserving any interest to the promoters. Covenant by purchaser to reconvey. if so required. In London and Soutli-lVcstern Ecdhcay Company v. GommQi) the company sold some superfluous lands, and they conveyed the land in fee to the purchaser who covenanted with the company that he, his heirs, or assigns, would at any time thereafter, when- ever the land might be required for the railway or works of the company, and whenever thereunto requested by the company on a six calendar months' notice, and upon receiving £100, reconvey the land to the company. The Court of Appeal held that the covenant in the deed reserved to the company an interest in the land, and that the sale was 'ultra vires and void, for that under sect. 127 land sold by a company as superfluous land must be sold absolutely, without reserving any interest to the company. This case was distinguished in Ray v. Walker (c), where the conveyance contained a covenant to resell a certain defined portion of such land to the company whenever required by them to do so. It was held that although the covenant to resell vitiated the sale of the portion of the land to which the covenant related, it did not aff"ect the validity of the sale of the other portion. Promoters may, however, in selling their superfluous land, impose such restrictive conditions upon the user and enjoyment conditions for of the land as may be most for their advantage as vendors (f?). advantat'c. Ill ^^^ '"'^ Thachnvay and Yoiincfs Contract {c) land was con- Where lien on veyed by a company to a purchaser, and by an indenture of even date between the same parties it was declared that until the whole of the purchase-money and interest were paid the company should have a lien on the deed of conveyance and the lands therein com- prised. On a question being raised whether sect. 127 had been satisfied, it was held that the question was one of such doubt thut it must be left open and not answered in a way which would force the title on an unwilling purchaser. Covenant by purchaser to reconvey a defined portion. Promoters may impose restrictive lands is re served to pro- moters, doubtful if purchaser obtains a good title. {}>) (1881), 20 Ch. D. 562 ; ^l L. J. Ch 5;i() ; -IG L. T. 44!) ; 30 W. E. 620. (r) [1892], 2 Q. B. 88 ; 61 L. J. Q. B. 718. (//) J a re JIi(/'/iiis and Ilitcltmun's Vvtdrud (1882), 21 Ch. D. 95; 51 L. J. Ch. 772 ; 30 W. E. 700 ; 46 J. P. 805. (0 (1888), 4.0 Ch. D. 34 ; 58 L. J. Ch. 72 ; 59 L. T. 815 ; 37 AV. E. 74. Tlie Lands Cbiuscs Consolidation Act, 1845. o25 ARTICLE 15. ^A purchaser of superfluous lands acquii'es no greater Sect. 127. rights than the promoters had. „ , , ° ^ Piuvhaser or Where promoters purchased the surface of land without the superfluous 11 1 11 1 11 1 1 n lands acquires mines or minerals beneath, and subsequently sell the land as no greater superfluous, the purchaser has no greater ri^ht of support than I'lghts than ^ ^ o o II promoters the promoters had, and the owner or lessee of the mines and had. minerals has a right to work the same without regard to whether such working will let down the surface (/) . Where land is freed from the prohibition of building for the Prohibition J, ^ ,11. 1 1 • 1 • • • against build- purpose 01 the promoters undertaking, the prohibition revives jj,^. when part of it is sold as superfluous land (fy). Promoters who acquire land under their statutory powers have Promotei-s all the ordinary rights of landowners. In Bonner y. Great ordinary Western llaihcay Cnmpany {h) some of the windows of a house rights of land- of the plaintiff overlooked a piece of land belonging to the com- pany. When the house had been built sixteen years the company put up a screen opposite the plaintift''s windows to prevent his acquiring an easement of light and air. It was held that the plaintiff had no equity to restrain the company from taking measures to prevent prescriptive rights from being acquired for windows looking over their land. ARTICLE 16. — Promoters may not alienate land for pui'poses other Piestriction on than those specified in their special Act or the Acts incorporated 1^1^^ bv^pro- therewith. moters'. In MuUiner v. Midlaiul llaihcat/ C'uiijxinij (/) it was held that a railway company, having the usual powers to take and use laud for the purpose of the railway and works, cannot, whether for valuable consideration or otherwise, alienate for any purpose ex- cept the purposes of the Act, any portion of its land, not being "superfluous land" within sect. 127, or land taken for extra- ordinary purposes within sect. 45 of the Railways Clauses Act, 1845, nor any easement over the same. ARTICLE 17.— The fact that land is not superfluous land does not Occupier may ac'iuire a title prevent an occupier, who has had exclusive adverse possession for by adverse twelve years, becomins' thereby entitled to the land under the Statute possession of . - . ° •' promoters' of Limitations. laud for So held in Bohljett v. South-Eastern Raihvaij Company (k). if) Fviudueii V. Clayton (1883), 11 Q. B. D. 820; 52 L. J. Q. B. 566; 48 L. T. 283 ; 31 W. E. 664 ; 47 J. P. 288. (.9) Bird V. E'fjhtou (1885), 29 Ch. D. 1012 ; 54 L. J. Ch. 819 ; 53 L. T. 87 ; 33 W. E. 774. {h) (1883), 24 Ch. D. 1 ; 48 L. T. 619 ; 32 W. E. 190 : 47 J. P. 580. (0 (1879), 11 Ch. D. 611 ; 48 L. J. Ch. 258 ; 40 L. T. 121 ; 27 W. E. 330 ; In re Goaty and the Manrhesier, Sheffield and Lincolnshire Raihraij Company [1896], 2 Q. B. 439 ; 65 L. J. Q. B.' 625 ; 75 L. T. 239 ; 45 W. E. 83. (A) (1882), 9 Q. B. D. 424; 51 L. J. Q. B. 161 ; 46 L. T. 31; 46 J. P. twelve vears. 326 Code of the Law of Conipeiisatlo)!. Sect. 127. Where super- fluous lands have become vested in ad- joining owutr — new special Act extending prescribed period for sale. Sect. 127 does not apply where under- taking abandoned. Abandon- ment of Eail- wavs Act, 18.50. Where special Act gives pro- moters un- restricted power of sale over super- fluous lands. ARTICLE 18. — Where superfluous lands have become vested in an adjoining owner, his title is not affected by a new special Act obtained by the promoters, and which extends the time for the sale of super- fluous lands. This was so held in Moody v. Corhett {!), where the lands had vested in the adjoining landowner before the new Act was passed. ARTICLE 19. — Section 127 does not apply where the undertaking is abandoned or given up. So held in SmitJi v. SmitJt (m). Bramwell, B., said : " Section 127 of the Lands Clauses Act does not apply where the railway is abandoned or given up, but to superfluous land. But further, if it did, the case would be the same, for by that section, if the land is not sold within ten years from the time for the completion of the works, it is to vest in the owners of the lands adjoining." The rights, in case of abandonment, are determined under the Abandonment of Railways Act, 1850, ss. 17 — 27, 34, or under the terms of the special Act. ARTICLE 20. — Where the special Act gives promoters unrestricted powers of sale over lands not actually used, they are relieved from the obligation imposed upon promoters by sects. 127 and 128. The Metropolitan District Railway Act, 1868, was such an Act (o). Section 127 is also excluded from the Public Health Act, 1875 {})). Sect. 128. Lands to be offered to owner of lands from which they were origi- nally taken c to adjoining owners. 128. Before the promoters of the nndertakiiig dispose of any such superfluous lands they shall, unless such lands be situate within a town, or be lands built upon or used for building purposes, first ofl"er to sell the same to the person then entitled to the lands (if any) from which the same were originally severed ; or if such person refuse to purchase the same, or cannot after diligent inquiry be found, then the like ofi'er shall be made to the person or to the several persons whose lauds shall immediately a) See sect. 176 {\),i>ost. The Lands Clauses Consolidation Jet, 1845. 327 more than one such person shall be entitled to such rioht of sect. i28. pre-emption such offer shall be made to such persons in succession, one after another, in such order as the promoters of the undertaking shall think fit. ARTICLE 1. — The right of pre-emption arises, and an action may Action maybe be brought, when the promoters have done an act which shows that '^'''ugli*^ . . before expiry the lands taken are not requu-ed for the purposes of the special Act. of period pre- scribeil by So held in Beaucliamp \. Great Western Raihray Companij{q), sect. 127. where Page Wood, V.-C, said that dedicating land for the purpose -Dedicating of a public road would show that the land was superfluous land, public road. and that in such a case an adjoining landowner need not wait until the expiration of the period after which the promoters are com- pelled to sell superfluous laud. In London and South- Western Railicay Company v. Blackmore (r) Wiiere it was held that though promoters are not compelled to sell their self™ made superfluous laud within ten years, yet if within that time they within the make the attempt to sell, the right of the adjoining owner to claim ^ the benefit of pre-emption at once arises. If promoters have taken land in order to fulfil a contract with Land taken another landowner, such lauds are superfluous, and a rierht of l^.^' PJ'o^oters ^ ' » to tuinl a con- pre-emption immediately arises (.s-). tract with The fact that a conveyance of land by promoters has been set olvnei-^"^ '^^^ ' aside as ultra vires is not conclusive that the land conveyed is superfluous, or that a right of pre-emption has arisen {t). ARTICLE 2. — Adjoining owners include lessees and persons who -Adjoining have a limited interest. owners " in- clude persons with a limited interest. Per Lord Eomilly, M.R., in Coventry v. London, Brighton and South Coast Bailway Company (u), where it was held that lessees of lands separated from superfluous land by a private road, of which they had the exclusive right of user during their tenancies, were owners of " immediately adjoining land " within sect. 128. Where a wall has been built on land dividing the property of Where a wall a landowner from that of the promoters, and the landowner and plope^i^tv of a the promoters are the joint owners of the land upon which the landowner from that of thepromoters. (7) (1868), L. E. 3 Ch. App. 745 ; 38 L. J. Ch. 162; 19 L. T. 189; 16 W. I!. 1155 ; Caringtnn v. Wi/co/nhc Ruilnay Company (1868), L. B. 3 Ch. A])p. 377 : 37 L. J. Ch. 213; 18" L. T. 96; 16 W. E. 494; London and South- Wester,, Railwaij Company v. JUackmore (1870), L. E. 4 H. L. 610; 39 L. J. Ch. 713 ; 23L. T. 504; 19 W. E. 305. (r) Su2)7rt. (s) Carimjton v. Wyromhe Railway Company, supra. [t) Hohhs v. Midland Eailu-ay Company (1882), 20 Ch. D. 418; 51 L. J. Ch. 320 ; 46 L. T. 270 ; 30 W. E. 516. («) (1867), L. E. 5 Eq. 104; 37 L. J. Ch. 90 ; 17 L. T. 368; 16 W. E. 269. 328 Code of the Law of Compensation. Sect. 128. Where soil of road between owners land and super- fluous lands is vested in lord of the manor. Owner from whose pro- perty lands have been severed. Meaning of "town." Lantl away from the mass of houses. "Land used for building purposes '' — meaning of. Land capahle of being built upon. wall is built, the landowner is an "adjoining" owner within sect. 128 (i(-). Where commonable lands have been enclosed under an award made under a local Act passed subsequently to 41 Geo. III. c. 109, and by the award the soil of the roads running between the allotments remains vested in the lord of the manor, if the land on one side of the road becomes superfluous land, it will vest in the lord of the manor, for the right to the grass and herbage arising upon the road is insufficient to make the owner of the land on the other side of the road an adjoining owner (?/). ARTICLE 3. — The owner from whose property lands have been severed need not necessarily be an adjoining owner. So held in Hohhs v. Midland Railway Company {z). ARTICLE 4. — The word "town" means a place in which the dwellings of the inhabitants are so near to each other that they may reasonably be said to be contiguous. This is based on the definition given by Lord Hatherley, L.C., in London and South-Western Raihcay v. Blachmore {a) . Where land is within the limits of a borough, but at some distance from the mass of houses forming the town, it is not necessarily land "in a town"(^). ARTICLE 5. — " Lands used for building purposes " are lands sold as building land, or let on building leases, and actually laid out for building. So held in Coventry v. London, Brighton and South Coast llailway Company (e) . Land acquired by promoters for the purpose of their under- taking, but not so employed, and merely capable of being built upon, or suitable for being built upon, is not on that account to be treated as building land or " land used for building purposes " ((/). (cc) London unlarl,-more (1870), L. E. 4 n. L. 610; 39 L. J. Ch. 713 ; 23 L. T. 504; 19 W. E. 305. The lAtmh Clauses Consolidation Act, 1845. o*21) In Carington v. Wijcomhe liailicaij Company {c), Lord Cairns, Sect. 128. L.J., said: "What the Act of Parliameut requires, in order to Must'bT' bring the case within the exception, would be not that it should be •actually capable of being used as buildiug ground, but that it actually and ing purposes.' dc facto should be laud used for building purposes." He also said that the words " built upon " mean " to describe something which. Meaning of . . , the words though it cannot be called land m a town or part ot a town, is land .-built upon." covered with continuous buildings codem modo as the solum of the town. The Legislature cannot have meant that because a piece of land in the open country has a building upon it, it is ' land built upon ' within the meaning of this section." ARTICLE 6.— Where an adjoining owner seeks to enforce Ms right inquiry of pre-emption of lands which have never been his, the Court may !,^,\^johring^'' *^ direct an inquiry as to whether there is any other adjoining owner owners— equally entitled to make such a claim. ^^^ pre-emp- An inquiry to this effect was ordered by the House of Lords in ^y^ne. London and SoutJi-Westem Raihcay Company v. Blachmore{f). ARTICLE 7.— The "disposing" of lands within sects. 127 and 128 • Disposing" . . „ , , T X ,.™ , of lands does does not include the application of the lands to a dinerent purpose ^^^ include from that for which they were obtained. application to a different This was decided in A^tley v. Manchester, Sheffield and Lincoln- purpose. shire Fiailway Company {■) (1868), L. E. 3 Ch. App. :J77, 384 ; 37 L. J. Ch. 213 ; 18 L. T. 96; 16 ^V. E. 494. (/) (1870j, L. E. 4 n. L. 610 ; 39 L. J. Ch. 713 ; 23 L. T. 504 ; 19 W. E. 305. {(j) (1858), 2 De G. & J. 453 ; 27 L. J. Ch. 478 ; 4 Jur. N. S. 567. (li) London and Greenwich Jlailwai/ Conqiaiti/ v. Guodrhild (1844), 13 L. J. Ch. 226 ; 3 E. C. 507 ; 8 Jur. 455. (/) (1871), L. E. 12 E(i. 9 ; 40 L. J. Ch. 40S ; 24 L. T. 567 ; 19 ^\. E. G92. :ht of emption 330 Code of the Law of Compeusatioii. within six weeks Sect. 129. tlie undertaking, or if they decline such offer, or if for six to be claimed wceks they ncglcct to signify their desire to purchase such lands, the right of pre-emption of every such person so declini]ig or neglecting in respect of the lands included in such oflPer shall cease ; and a declaration in writing made before a justice by some person not interested in the matter in question, stating that such ofler was made and was refused, or not accepted within six weeks from the time of makijig the same, or that the person or all the persons, entitled to the right of pre-emption were out of the country, or could not after diligent inquiry be found, or were not capable of entering into a contract for the purchase of such lands, shall in all Courts be sufficient evidence of the facts therein stated. Sect. 130. 130. If any person entitled to such pre-emption be „.„ desirous of purchasino- any such lands, and such person to price to be and the promoters of the undertaking do not agree as to arbitration ^^^ piicc thereof, tlieii sucli piicc shall be ascertained by arbitration, and the costs of such arbitration shall be in the discretion of the arbitrators. ARTICLE 1. — An arbitration for ascertaining the value of super- fluous lands is not an arbitration within sects. 23, 25 — 37 of the An arbitra- tion under within sects. Lands Clauses Act, and the arbitrator may order each party to pay 23, 2.5—37. liis own COSts. Arbitration Act, 188!». In Jones v. Soutlt Staffordshire Fuiihray Companii{h), where there was a reference to arbitration to ascertain the compensation payable for certain superfluous lands, Cockburn, C.J., said : " The arbitration clauses all seem to point to cases of compensation for lauds taken by the company. Here it is the land of the company which another person wishes to buy. The position of the parties is changed. In the one case the company take the land and give compensation ; in the other case, the company having the land, another person comes and claims to buy. I can well see why there should be different provisions to meet each of these states of things." In In re Et/re's Trusts {I) the arbitrator ordered each party to pay his own costs, and his award was upheld. As the sections of the Lands Clauses Consolidation Act, 1845, do not apply to arbitrations under this section, such arbitrations will now be subject to the Arbitration Act, 1889 (//()• (Jc) (1869), 19 L. T. 603. it) (1869), W. K 76. (*/() Ajjpendix B, pcsf. The Ldiida Clauses Consolidation Act, 1845. 831 ARTICLE 2. — Promoters will not be ordered to take up an award Sect. 130. under this section. Prom^ So held in Jones Y. South Staffordshire Baihcay Company {n), ordered k.*^ on the ground that arbitrations under this section are not ^i^ke up an arbitrations within the Lands Clauses Consolidation Act, 1845. ^gct. 130. Cockburu, C.J., said: "I am certainly disposed to think this is a casus omissus, but it is sufficient to say that the question is one of very great doubt." The proper course in such a case, if the promoters refuse to take up the award, is for the purchaser to do so, and, if he thinks it advisable, to bring an action upon it. 131. Upon payment or tender to the promoters of the sect. I3i. undertaking of the purchase-money so agreed upon or Lands to be determined as aforesaid they shall convey such lands to conveyed the purchasers thereof by deed under the common seal of i.mchasers. the promoters of the undertaking, if they be a corporation, or if not a corporation under the hands and seals of the promoters of the undertaking or any two of the directors or managers thereof acting by the authority of the body ; and a deed so executed shall be effectual to vest the lands comprised therein in the purchaser of such lands for the estate which shall so have l)eeu purchased l)y him ; and a receipt under such common seal, or under the hands of two of the directors or managers of the undertaking as afore- said, shall be a sufficient discharge to the purchaser of any such lands for the purchase-money in such receipt expressed to be received. 132. In every conveyance of lands to 1 )e made by the sect. 132. promoters of the undertaking under this or the Special Act Effect^ the word "grant" shall operate as express covenants by the word the promoters of the undertaking, for themselves and their conveyances, successors, or for themselves, their heirs, executors, adminis- trators, and assigns, as the case may be, with the respective grantees therein named, and the successors, heirs, executors, administrators, and assigns, of such grantees, according to the quality or nature of such grants, and of the estate or interest therein expressed to be thereby conveyed, as follows, except so far as the same shall be restrained or Limited by express words contained in any such conveyance ; (that is to say,) A covenant that, notwithstanding any act or default {u) (1869), 19 L. T. 603; cnfc, ii. 330. o32 Code of the Law of Compensation. Sect. 132. done by the promoters of tlie undertaking, they were at the time of the execution of such conveyance seised or possessed of the hinds or premises thereby granted for an indefeasible estate of inheritance in fee simple, free from all incumbrances done or occasioned by them, or otherwise for such estate or interest as therein expressed to be thereby granted, free from incumbrances done or occasioned by them : A covenant that the o'rantee of such lands, his heirs, successors, executors, administrators, and assigns, (as the case may be,) shall quietly enjoy the same against the promoters of the undertaking, and their successors, and all other persons claiming under them, and be indemnified and saved harmless by the promoters of the undertaking and their successors, from all incum- brances created by the promoters of the undertaking : A covenant for further assurance of such lands, at the expense of such grantee, his heirs, successors, executors, administrators, or assigns, (as the case may be,) by the promoters of the undertaking, or their successors, and all other persons claiming under them : And all such grantees, and their several successors, heirs, executors, administrators, and assigns respectively, accord- ing to their respective quality or nature, and the estate or interest in such conveyance expressed to be conveyed, may in all actions l)rought by them, assign breaches of covenants, as they might do if such covenants were expressly inserted in such conveyances. Sect. 133. 133, And be it enacted, that if the promoters of the Lanci"tax and Undertaking become possessed by virtue of this or the poors rate to Special Act, or any Act incorporated therewith, of any no mfidc *^oo(i . . ^ %i "^ ' lands charged with the land tax, or lial^le to be assessed to the })oor's rate, they shall from time to time, until the works shall be completed and assessed to such land tax or })oor's rate, be liable to make good the deficiency in the several [issessments for land tax and poor's rate by reason of such lands having Ijeen taken or used for the purposes of the works, and such deficiency shall be computed accord- ing to the rental at which such lands, with any building thereon, were valued or rated at the time of the passing of the Special Act ; and on demand of such deficiency the promoters of the undertaking, or their treasurer, shall pay all such deficiencies to the collector of the said assessments respec- tively ; nevertheless, if at any time the promoters of the The Lands Clauses ConsoUclation Act, 1845. 338 undertakiug think fit to redeem sucli land tax, they may do ^ect. i33. so in accordance with the powers in that behalf given by the Acts for the redemption of the land tax. ARTICLE 1.— The poor rate in sect. 133 includes rates chargeable rnorratc in- on the poor rate. cliargeable on , ^T. T^ -7 ^. / \ 1" '01' rate. In Farntn- \. London and yortJi-]] r>;trrn Radtcaij Comjmnjj [o) it was held that the borough rate (under 45 & 46 Vict. c. 50, s. 145), and the county rate (under 15 & 16 Vict. c. 81, s. 26), being respectively made chargeable on the poor rate, the deficiency in the assessment for the poor rate which the promoters of the undertaking are hable to make good includes any deficiency in respect of amounts raised for borough rate and county rate. By sect. 10 of the London Government Act, 1899, the general Effect of the rate and the poor rate are to be assessed, made, and levied together GoverDment by the borough council as one rate, termed the general rate, which '^^*' If i'^;'" J " ^CllGltii 13.IC is to be assessed, made, and levied as if it were the poor rate. It and poor-rate has been held that where promoters have taken land in Loudon since gjl^loJethCT!' the coming into operation of this Act, they are only liable to make good the deficiency in so much of the general rate as represents the poor rate or anything chargeable on that rate, and are not liable to make good the whole of the deficiency in the general rate(p). ARTICLE 2.— If promoters purchase premises beyond the limits Where pro- of deviation in order to obtain the withdi'awal of the opposition of chase premise* landowners, they are liable to make good any deficiency in the poor beyond the limits or rate in respect of the premises. deviation. In Putney Overseers v. London and South-Western Radn-an Company (q) it was contended on behalf of the promoters that the houses beyond the limits of deviation were not acquired under the special Act ; but it was held by the Court of Appeal that as the promoters could only hold land under the powers given them by statute, they could not be heard to say that they had become possessed of the houses otherwise than by virtue of the Acts, and that they were consequently liable to make good the deficiency. Lord Esher, M.R., said: "The company have no right to buy property or to hold it except for the purposes of their undertaking. They have been assessed upon the footing that they have acquired certain land under their Acts of Parliament, and they claim that this, as a matter of fact, is not so, and that, because it is not so, (o) (1SS8), 20 Q. B. J). 788 ; 59 L. T. 542 ; 36 W. E. 590. Ip) Islinijton Corporation v. London Srhool Board [1902], 2 K. B. 701 ; 71 L. J. K B.'852 ; 87 L. T. 177 ; IS T. L. R. 057. {(,) [1891], 1 Q. B. 440 ; 60 L. J. Q. B. 4;5S; 64 L. T. 280 ; 39 W. B. 291. 334 Code of tlie Law of Compensation. Sect. 133. " Parochial indemnity." Local authorities are promoter.' Where local authorities take land for improvements such as streets, &c. VVliere an urban authority tooli more land they are exempt from being assessed. I think they cannot be heard, as against the parish, 'to say this, and that, as between the company and the parish, it must be taken that these lands were acquired by the company under their Acts — the only way in which the land could properly be taken." Boweu, L.J., said : " The truth is, the scheme of this section is to create a parochial indemnity." ARTICLE 3. — Local authorities or persons entrusted with the construction of public works are "promoters" within sect. 133. So held in St rattan v. Metropolitan Board of Works {r), where the predecessors of the London County Council were held liable to make good all deficiencies ; in Mayor of London v. St. Andrew's, Holborn (s), where it was held that, although the corporation of London could not be rated in respect of the lands taken, they were nevertheless liable to make good the deficiency ; in Wheeler v. Metropolitan Board of Works (t), where it was held that persons entrusted with the construction of public works were, in the absence of special circumstances, promoters within sect. 133. ARTICLE 4. — "Where local authorities are empowered to take land for the purpose of improvements, such as streets, &c., which can never become rateable, they can only be compelled to make good the deficiency until such improvements are completed. In Stratton v. JMetropolitan Board of Works (a) the defendants were, by their special Act, authorised to construct an embankment on the south side of the Thames. The Act provided that a certifi- cate of completion signed by the chairman of the defendants' board, and delivered to the clerk of the peace, should be conclusive evidence of completion. It was held that the deficiency of assess- ment could only be recovered up to the date of the certificate, as the works were then complete within the meaning of sect. 133. It was also held that the fact that the works contemplated, i.e., street improvements, were not such as would be assessable to poor rate when completed, did not prevent sect. 133 from applying to lands taken for such purposes. Where an urban sanitary authority took land for the purposes of making new streets, it was held that the works were completed so as to relieve the authority from making good any deficiency in the {r) (1874), L. E. 10 C. P. 16; 44 L. J. M. C. 33 ; 31 L. T. 673 ; 23 W. R. 447. See also Bristol Guardians v. Mayor of Bristol (1887), 18 Q. B. D. 549; 56 L. J. Q. B. 320; 56 L. T. 641 ; 35 W. R. 619; 51 J. P. 676. (s) (1867), L. R. 2 C. P. 574 ; 30 L. J. M. C. 95 ; 16 L. T. mo; 15 W. R. 928. (0 (1869), L. R. 4 Ex. 303; 38 L. J. Ex. 165. {n) (1874), L. R. 10 C. P. 76; 44 L. J. M. C. 33 ; 31 L. T. 673 ; 23 W. R. 447. See also W'/tcrler v. Mdrojiolitan Board of ]]'ork-s (1869), L. R. 4 Ex. 303 ; 38 L. J. Ex. 165. The Lands Clauses Consolidation Act, 1845. 335 rates when the streets were fully made, and such of the lauds taken Sect. 133. as might be liable to assessment had become assessable (.i;). In thau they re- this case Lord Esher, M.R., said : " Now here the promoters have 'l^^^^^^''^^'^''''' undertaken more thau the duty of making streets, for they take more land than is wanted for the actual streets. It is not denied that they have undertaken when they have finished the streets to sell that surplus land, and I consider that this sale of surplus land is part of the ' works,' using that term in an enlarged sense, that they have to do. Now, a part of their works can never be assessed, and we must therefore, in accordance with Stratton v. Metropolitan Boards of Works iy), read the section as though it said, ' until the works are completed, and such part of them as become assessable property are assessed.' The section is directed to ascertain a limit of time, which, in many cases, it would not do unless it is read in this manner. Applying that to the present case, the limit of time will be when the structural parts are finished and the surplus land is all sold and has become assessable. I incline to agree that as each part of the laud is disposed of and becomes assessable, that will from time to time lessen the deficiency in respect of each separate undertaking. The deficiency at any given period would be the whole deficiency created by the taking of the land less what is so obtained, and when these balance, even although there is land still remaining in hand, there is no longer a deficiency, and the liability will cease. If when the street is finished and all the surplus land assessed there should still remain a deficiency, the liability of the promoters is nevertheless ended, because this is not an indemnity, but only a payment of a deficiency for a certain time." ARTICLE 5. — The " deficiency" is the difference between the value Deficiency— at which the land or houses were assessed at the time of the passing- |[j[g^^_ "^' of the special Act and the rateable value of such land or houses at the time when it is soug-ht to ascertain the deficiency. Therefore the fact that at the time of the passing of the special Act some of the houses taken were unoccupied is immaterial in estimating the amount of the deficiency. This was so held iu Putney Overseers v. London and Soutli-Westerii Railicai/ Com- pany {z), where Bowen, L.J., said : " They next say that the sum which they are asked to pay ought to be diminished on the ground (x) Bristol Guardians v. 3fayor of Bristol (1887), 18 Q. B. D. 549; oG L. J. Q. B. 320; 56 L. T. 641 ; 35 W. E. 619 ; 51 J. P. 676. (y) Supra. (z) [1891], 1 Q. B. 440 ; 60 L. J. Q. B. 438 ; 64 L. T. 280 ; 39 W. R. 291. See also »S'^. Leonard, Shoreditch, v. London (Joiudi/ Council [1895], 2 Q. B. 104 ; 64 L. J. Q. B. 615 ; 72 L. T. 802 ; 43 W. E. 598 ; 15 E. 516; 59 J. P. 423. 330 Code of the Law of Compensation. Sect. 133. that some of the bouses when the}' took them over were unoccupied, and were not paying any tax. Eeference to the words of the Act of Parhament will show that Avhen the deficiency has to be com- puted it is not to be arrived at by taking the existing assessment and the payment formerly made ; but it is to be computed accord- ing to the rental at which the lands were valued or rated at the time of the passing of the special Act. It is not a question of what was 2:»aid, but a question of what Avas assessed. On the one side is the rateable value at the time when it is sought to ascertain the deficiency ; on the other, the rental at which the land was valued or rated at the time of the passing of the special Act, and a comparison between these supplies the measure of the deficiency in the rate which the parish can claim from the promoters." In Strattoii v. MctrojJoUtan Board of Woiks (a) Denman, J., when delivering the judgment of the Court (Keating, Lush, and Denman, JJ.), said the word "deficiency" did not mean the sum, if any, which should be found wanting to make up the amount required by the parish. " What the clause means," he continued, rromoters to "is that the Board shall stand in the place of the occupiers of the of occupiers of demolished houses, and pay what they would have paid upon each demolished assessment if the houses had not been taken, and they had con- houses. . tinued assessed at the rateable value which they bore in the assessment at the time the Act passed." Computation As the deficiency to be made good will grow less as part of the from lime to ^^^^^ becomes rateable, the deficiency must be computed from time time as lands tio time by comparing the assessed value at the time of the special taken become -ii ti i- p • pt. assessable. Act With the assessed value at the time of computation oi such ot the lands taken as may have become assessable (1)). Where special Where the special Act provided that a railway company should that pro- make good any deficiency in the rates " until the railway or the motors shall ^vol•ks thereof are completed and assessed, or liable to be assessed," make good _ ^ anydetici"iicy it was held by the House of Lords that the rate was properly a in the rates parochial rate, and that, on the completion of a portion of the rail- works are way ill any one parish, the title of that parish to claim the deficiency completed , i n i / \ and assessed." I'^te had ceased (r). Several ARTICLE 6. — "Where several improvement schemes are contained improvement in one provisional order confirmed by statute, but under headings schemes in ((/) (1874), L. II. 10 C. P. 7(5; 44 L. J. M. C. 33 ; 31 L. T. 673 ; 23 W. E. 447. {h) lU-isiol GuurdlauH v. May.r of Br Idol (1887), 18 Q. B. D. 549; 5(> L. J. U. B. 320; oH L. T. 641 ; 35 \V. E. 619 ; 51 J. P. 676. {(■) East London Ilni/d'di/ Comjiani/ v. ]f'/iitilinrch (1874), L. E. 7 II. L. 81 ; 43 L. J. M. C. 159; 30 L. T. 412; 22 W. E. 665; overruling llecj.v. Mdrojiolitdii Lidiivt lluiliiaij C'cmjiuiiy (1871), L. E. 6 U. B. 698. The Lands Clauses Consolidation Act, 1845. 337 separately numbered, the deficiency must be calculated on each Sect. 133. separate undertaking within the area affected by it. oneproT In Bristol Guardians v. Mayor of Bristol (d) the authority to li'^i^^pu^;;^^' put in force the compulsory powers of the Lands Clauses Consolida- ticn of tion Acts was conferred by a provisional order, and confirmed by a statute which described in one schedule, but under headings separately numbered, the several improvement schemes promoted by the sanitary authority. It was held that each scheme described in the schedule constituted a separate undertaking, and that the deficiency in the assessment ought to be calculated on each separate undertaking within the rating area aftected by it. ARTICLE 7. — The deficiency need not be demanded at the time the Arrears of rates are made, but arrears of all deficiencies down to completion of [^^^^ ^^e the works may be legally demanded in a lump sum. demanded ia a lump sum. So held in Stratton v. Metropolitan Board of Works (e), where Denman, J., in delivering the judgment of the Court (Keating, Lush, and Denman, JJ.), said : " The argument requires us to read the words ' on demand ' as if they were, ' provided the deficiency be demanded,' that is, as words of condition, instead of words of obligation. This is not the natural ordinary meaning of the words ; and we cannot see any sufficient reason for construing them in any other sense. We conclude, therefore, that the liability of the Board was not extinguished by the delay in demanding payment, and that the arrears of all deficiencies down to the date of the certificate. May 11th, 1870, may legally be demanded in a lump sum." In this case the certificate was to be conclusive evidence of completion of the works, and the overseers of St. Mary, Lambeth, had demanded of the defendants an aggregate sum representing deficiency of assessment for all the years from 18G5 to 1871, no previous demand having been made of any deficiency. The poor-rate accounts of the parish had been duly audited for each of these years and were closed. ARTICLE 8. — Where the special Act provides that any deficiency General pur- in the " general purposes rate " shall be made good by the promoters, Ug^^^^J^^yTn the latter will be liable to make good any deficiency in the metro- —what it politan consolidated rate, the lighting rate, and the public libraries ^i^cludes. rate. So held in Burrup v. London and South-Western Railicay Com- pany if), where it was held that the expression " general purposes (d) (1887), 18 Q. B. D. 549; 56 L. J. Q. B. 320; 56 L. T. 641 ; 35 W. E. 619 ; 51 J. P. 676. (e) (1874), L. E. 10 C. P. 76; 44 L. J. M. C. 33; 31 L. T. 673; 23 W.P. 447. (/) (1891), 64 L. T. 112. L.C. 22 338 Code of the Law of Compensation. Sect. 133. rate " was intended to apply to all rates made for general purposes, viz. : for purposes in which the great majority of parishioners have Owners com- pounding for rates — extent of liability of promoters. Where lands taken are exempt from rates. a common interest. ARTICLE 9.— Where the owners of premises taken by promoters have made agreements under sect. 3 of the Poor Rate Assessment and Collection Act, 1869, to pay the rates instead of the occupiers, subject to a deduction, and these agreements are in force when the promoters take the premises, the deficiency which the promoters have to make good must be calculated on the rateable value at the time the special Act was passed, and they are not entitled to claim the deduction. In deciding this Lord Kussell of Killowen, C.J., said (^) : " The Legislature plainly have declared the mode in which the deficiency is to be computed. The actual loss is not the test ; if it were, in the case of unoccupied property there could hardly be said to be any loss at all, and the rating authority could get nothing." ARTICLE 10. — Where the land or premises are exempt from rates at the time of the passing of the special Act, the promoters are not liable to make good any deficiency. So held in Stratton v. Metropolitan Board of Works (h), where the lands taken were, at the passing of the special Act, in the occupation of servants of the Crown. Sect. 134. Service of notices upon company. Sect. 184 applies to all cases where a sunmKiiisor notice is required. 134. And be it enacted, that any summons or notice, or any writ or other proceeding at law or in equity, requiring to be served upon the promoters of the undertaking, may be served by the same being left at or transmitted tiirougli the post directed to the principal office of the promoters of the undertaking, or one of the principal offices where there shall be more than one, or being given or transmitted through the post directed to the secretary, or in case there be no secretary the solicitor of the said promoters. ARTICLE 1. — Section 134 is applicable in all cases where a summons or notice is required. So held by Wightman, J., in Ex parte Senior (i). This section is not confined to proceedings in an action. Section 138 of the Kailways Clauses Act, 1845 (A), is the same {g) St. Leonard, Hhoreditch, v. London County Council [1895], 2 Q. B. 104 ; 64 L, J, Q. B. 615; 72 L. T. 802; 43 W. E. 598 ; 15 R. 516; 59 J. P. 423. {h) (1874), L. E. 10 C. P. 76; 44 L. J. M. C. 33; 31 L. T. 673; 23 W. E. 447, {{) (1849), 18 L. J. Q. B. 333; 7 D. & L. 36; 14 Jur. 1093. (/c) Fost. The Lands Clauses Consolidation Act, 1845. 339 as section 134 of this Act, except that service must be upon the Sect. 134. secretary personally. If promoters wish that a notice should be served at their office Where pro- and not upon their solicitors, they must state it at once, and not notices served lie by until an award has been made, and then ask to have the at a particular place or on a award set aside as irregular (/). particular person. ARTICLE 2. — If a notice is wrongly addressed, but the promoters Notice are not misled, the notice is good. wrongly ad- dressed, but In Eastham v. Blackhurn liaihrai/ Company (m) a notice was promoters not served upon a clerk of the promoters of the Blackburn Railway Company at their office, being addressed " To the promoters of the Blackburn and Clitheroe Railway Company." There was no company of the latter name, but the railway in question ran from Blackburn to Clitheroe. It was held that the company had not been misled, and that the notice was good. 135. And be it euacted, that if any party shall have sect. 135. committed any irregularity, trespass, or other wrongful xendeTot proceeding in the execution of this or the Special Act, amends. or any Act incorporated therewith, or by virtue of any power or authority thereby given, and if, before action brought in respect thereof, such party make tender of sufficient amends to the party injured, such last-mentioned party shall not recover in any such action ; and if no such tender shall have been made it shall be lawful for the defendant, by leave of the Court where such action shall be pending, at any time before issue joined, to pay into Court such sum of money as he shall think fit, and thereupon such proceedings shall be had as in other cases where defendants are allowed to pay money into Court. And with respect to the recovery of forfeitures, penalties, sect. lae. and costs, be it enacted as follows : j->^.^TZ^ ^ ' Recover II oj 136. Every penalty or forfeiture imposed by this or the ^'^"■"' _^ Special Act, or by any byelaw made in pursuance thereof, J'enaities to the recovery of which is not otherwise provided for, may be recovered recovered by a summary proceeding before two justices ; \and on complaint being made to any justice he shall issue a summons requiring the jjcirty complained against to appear before two justices at a time and place to be named in such summons ; and every such summons shall be served on the party offending (?) Reg. V. Mdropolitan Bail way Com/iani/, Ex parte Knock (1867), 17 L. T. 291. (m) (1854), 9 Ex. 758 ; 23 L. J. Ex. 199 ; 2 W. E. 377. 22-2 before two justices. 340 Code of the Law of Compensation. Sect. 136. Sect. 137. Petialtlesto he levied hy disti'ess. either in person or hij learing the same with some inmate at liis usual place of ahocle ; and upon the appearance of the partjj complained against, or in his absence, after proof of the due service of siich summons, it shall he laicfid for any two justices to proceed to the hearing of the complaint, and that although no information in writing or in print shall have been exhibited before them; and upon proof of the offence, either by the confession of the party complained against, or npon the oath of one credible witness or more, it shall be lawful for such justices to convict the offender, and upon such conviction to adjudge the offender to pay the penalty or forfeiture incurred, as ivell as such costs attending the conviction as such justices shall think fit] . The words in italics have been repealed by the Statute Law Kevision Act, 1892. They had previously been repealed as regards England by the Summary Jurisdiction Act, 1884 (47 & 48 Vict. c. 43), s. 4. [137. If, forthwith upon any snch adjudication as (foresaid, the amount of the pencdty or forfeiture, and of such costs as aforesaid, be not paid, the amount of such pencdty and costs shidl be levied by distress, and such justices or either of them shall issue their or his warrant of distress accordingly.'] See note to sect. 136. Sect. 138. Distress how to be levied. 138. Where in this or the Special Act, or any Act incor- porated therewith, any sum of money, whether in the nature of penalty, costs, or otherwise, is directed to be levied by distress, such sum of money shall be levied by distress and sale of the goods and chattels of the party liable to pay the same ; and the overplus arising from the sale of such goods and chattels, after satisfying such sum of money and the expenses of the distress and sale, shall be returned, on demand, to the party whose goods shall have been distrained. Sect. 139. Application of penalties. 139. The justices by whom any such penalty or for- feiture shall be imposed may, where the application thereof is not otherwise provided for, award not more than one half thereof to the informer, and shall award the remainder to the overseers of the poor of the parish in which the offence shall have been committed, to be applied in aid of the poor's rate of such paiish, [or if the place wherein the offence shall have been committed shcdl be extra-parochicd then such justices The Lauds Clauses Consolidation Act, 1845. 341 shall direct sucli remainder to he applied in aid of the poor's Sect. 139. rate of sucli extra-parocJiitd place, or if there shall not he anij l^oors rate therein in aid of tlie poor's rate of antj adjoininej imrish or district^. The words in italics have been repealed by the Statute Law Kevision Act, 1875. 140. If any such sum shall be payable by the promoters sect. 140. of the undertaking, and if sufficient goods of the said Distress" promoters cannot be found whereon to levy the same, it against the may, if the amount thereof do not exceed twenty pounds, be recovered by distress of the goods of the treasurer of the said promoters, and the justices aforesaid, or either of them, on application, shall issue their or his warrant accordingly ; but no such distress shall issue against the goods of such treasurer unless seven days' previous notice in writing, stating the amount so due, and demanding payment thereof, have been giv^en to such treasurer or left at his residence ; and if such treasurer pay any money under such distress as aforesaid he may retain the amount so paid by him, and all costs and expenses occasioned thereby, out of any money belonging to the promoters of the undertaking coming into his custody or control, or he may sue them for the same. 141. No distress levied by virtue of this or the Special sect. I4i. Act, or any Act incorporated therewith, shall be deemed Distr^^ot unlawful, nor shall any party making the same be deemed unlawful for a trespasser, on account of any defect or want of form in ^^'^^'^ *^ '^^^' the summons, conviction, warrant of distress, or other pro- ceeding relating thereto, nor shall such party be deemed a trespasser ah initio on account of any irregularity afterwards committed by him, but all persons aggrieved by such defect or irregularity may recover full satisfaction for the special damage in an action upon the case. [142. Xo person sliall he liahle to the paijynent of anij penaltij sect. 142. or forfeit are imposed hy virtue of this or the Special Act, or penalties to any Act incorporated therewith, for anif ofence made cognizahle ^emedfut before a justice, unless the complaint respecting sucli ofence shall Inontks!'^ have been made before such justice witliin six months next after the commission of sucli ofence.'] This section has been repealed by the Statute Law Revision Act, 1892. It had previously been repealed as regards England by the Summary Jurisdiction Act, 1884 (47 ^^^ 48 Vict. c. 43), s. 4. 342 Code of the Law of Compensation. Sect. 143. Penalty on witnesses making default. Sect. 144. Form of conviction. 143. It shall be lawful for any justice to summon any person to appear before him as a witness in any matter in which such justice shall have jurisdiction under the provi- sions of this or the Special Act at a time and place mentioned in such summons, and to administer to him an oath to testify the truth in such matter ; and if any person so summoned shall, without reasonable excuse, refuse or neglect to appear at the time and place appointed for that purpose, having been paid or tendered a reasonable sum for his expenses, or if any person appearing shall refuse to be examined upon oath, or to give evidence before such justice, every such person shall forfeit a sum not exceeding five pounds for every such offence. This section has been repealed as regards England so far as relates to any matter to which the Summary Jurisdiction Acts apply, by the Summary Jurisdiction Act, 1884 (47 & 48 Vict. c. 43), s. 4. [144. The justices before whom anij person shall he con- victed of any offence against this or the Special Act, or any Act incorporated therewith, may cause the ( conviction to he drawn up according to the form in the Schedule (C.) to this Act annexed.^ This section has been repealed by the Statute Law Revision Act, 1892. It had previously been repealed as regards England by the Summary Jurisdiction Act, 1884 (47 & 48 Vict. c. 43), s. 4. Sect. 145. Proceedings not to be quashed for want of form. Certiorari where jury have exceeded their jurisdic- tion. 145. No proceeding in pursuance of this (Tc the Special Act, or any Act incorporated therewith, shall Lie quashed or vacated for want of form, nor shall the same be removed by certiorari or otherwise into any of the Superior Courts. ARTICLE 1. — Where the jiu-y have exceeded their jurisdiction, their verdict may be removed into the Queen's Bench Division of the High Coui't by writ of certiorari and quashed. In Cowper Essex v. Acton Local Board (») Lord Halsbury, L.C., said: "We are here discussing a question raised by the issue of a writ of certiorari, which writ, as it is expressly taken away by statute, can only issue where the jurisdiction has been exceeded." (?i) (1889), 14 A. C. 153 ; 58 L. J. Q. B. 594 ; 61 L. T. 1 ; 38 W. R 209. See also In re Penny and the SoittJi- Eastern Raihray Company (1857), 7 E. »Sc B. 660; 26 L. J. Q. B. 225; 5 W. E. 193 ; 3 Jur. IST. S. 957 ; Itey. v. London and North- Western llailivay Comjtany (1854), 3 E. <& B. 443; 23 L. J. Q. B. 185; IS Jur. 993; Bey. v. Halifax Loral Board (1865), 14 L. T. 44 7; and notes to Ai'ticle 5 to sect. 50, a7ite, pp. 125 — 127. The Lands Clauses Consolidation Act, 1845. 343 146. If any party sliall feel aggrieved by any determina- sect. i46. tion or adjudication of any justice with respect to any parti^ penalty or forfeiture under the provisions of this or the allowed to Special Act, or any Act incorporated there^yith, such party quarter*" may appeal to the general quarter sessions [for the county sessions on or place in which the cause of appecd shall have arisen ; hut fecu°fty. no sucli appeal shall he entertained unless it he made within four months next after the making of such determination or adjudication, nor unless ten days' notice in meriting of such appecd, stating the nature and grounds thereof, he given to the party against whom the appeal shall he brought, nor unless the appellant forthwith cfter such notice enter into recognizances, icith two sufficient securities, before a justice, conditioned duly to prosecute such appeal, and to abide tlie order of the Court thereon.] The words in italics have been repealed as regards England by the Summary Jurisdiction Act, 1884 (47 & 48 Vict. c. 43), s. 4. 147. At the quarter sessions for which such notice shall Sect. 147. be given the Court shall proceed to hear and determine the court~to^ake appeal in a sunimary way, or they may, if they think fit, such order as adjourn it to the following sessions; and upon the hearing J-eafonabie. of such appeal the Court may, if they think fit, mitigate any penalty or forfeiture, or they may confirm or quash the adjudication, and order any money paid by the appellant, or levied by distress upon his goods, to be returned to him, and may also order such further satis- faction to be made to the party injured as they may judge reasonable ; and they may make such order concerning the costs, both of the adjudication and of the appeal, as they may think reasonable. 148. Provided always, [and be it enacted,'] that notwith- sect. 148. standing anything herein or in the Special Act, or any' ReceiT^of Act incorporated therewith, contained, every penalty or the metro- forfeiture imposed by this or the Special Act or any Act attlict t^o"^'^^ incorporated therewith, or by any byelaw in pursuance receive thereof, in respect of any offence which shall take place Incurred within the metropolitan police district, shall be recovered, witiiin Ws enforced, accounted for, and, except where the application thereof is otherwise specially provided for, shall be paid to the receiver of the metropolitan police district, and shall be applied in the same manner as penalties or forfeitures, other than fines upon drunken persons, or upon constables for misconduct, or for assaults upon police constables, are 344 Code of the Law of Compensation. Sect. 148. directed to be recovered, enforced, accounted for, paid, and applied Ijy an Act passed in the third year of the reign of 2&3Vict. Her present Majesty, intituled An Act for regulating the Police Courts in the Metropolis, and every order or convic- tion of any of the police magistrates in respect of any such forfeiture or penalty shall be subject to the like appeal and upon the same terms as is provided in respect of any order or conviction of any of the said police magistrates by the said last-mentioned Act ; and every magistrate by whom any order or conviction shall have been made shall have the same power of binding over the witnesses who shall have been examined, and such witnesses shall be entitled to the same allowance of expenses as he or they would have had or been entitled to in case the order, conviction, and appeal had been made in pursuance of the provisions of the said last-mentioned Act. The words iu italics have been repealed by the Statute Law Revision Act, 1891. Sect. 149. 149. And be it enacted, that any person who upon any Personsgiving examination upon oath under the provisions of this or the false evidence Special Act, or any Act incorporated therewith, shall wilfully penalties of 'intl coiTuptly givc falsc cvidencc, shall be liable to the perjury. penalties of wilful and corrupt perjury. Sect. 150. And with respect to the provision to be made for afford- Accp^^ iug access to the Special Act by all parties interested, be it .yjecuii Act. eiiactcd as follows : Copies of 150. The company shall, at all times after the expiration beTeptand^ ^f six moiitlis after the passing of the Special Act, keep deposited, and [i^ their principal office of business a copy of the Special hispected? Act, printed by the printers to Her Majesty, or some of them ; and where the undertaking shall be a railway, canal, or other like undertaking, the works of which shall not be confined to one town or place, shall also within the space of such six months deposit in the office of each of the clerks of the peace of the several counties into which the works shall extend a copy of such Special Act so printed as aforesaid ; and the said clerks of the peace shall receive, and they and the company respectively shall retain, the said copies of the Special Act, and shall permit all persons interested to inspect the same, and make extracts or copies therefrom, in the like manner, and upon the like terms, and under the like penalty for default, as is provided in the The Lands Clauses ConsoUdation Act, 1845. 845 case of certain plans and sections by an Act passed in the sect. 150. first year of the reign of Her present Majesty, intituled An Act to compel Clerks of the Peace for Counties and other 7 w. 4& Persons to take the Custody of such Documents as sludl be directed to he deposited with them under the Standing Orders of either House of Parliament. 151. If the company shall Ml to keep or deposit, as Sect. I5i. herein-before mentioned, any of the said copies of the PenaitTon Special Act, they shall forfeit twenty pounds for every ^^^P^'J^j.^g such offence, and also five pounds for every day after- or'depos'it.^'^^ wards during which such copy shall be not so kept or deposited. 152. And be it enacted, that this Act shall not extend sect. 152. to Scotland. Act not to extend to r- TT. 1 1 1 ■ 4 7 77 Scotland. [153. And he it enacted, that this Act maij be amended or ^^^^ ^^^ repealed by any Act to be passed in the present session of P^ T *, -I Act may be arhament.j amemied this This section has been repealed by the Statute Law Revision Act, 1875. SCHEDULES referred to in the foregoing Act. schedules. SCHEDULE (A.). Form of Conveyance. I of in consideration of the sum of j)aid to me [or, as the case may he, into the Bank of Eng- land [or Bank of Ireland], in the name and with the privity of the Accountant-General of the Court of Chancery, ex parte "the promoters of the undertaking " [/n//^?/;?// them~\, or to A.B. of and CD. of two trustees ap- pointed to receive the same], pursuant to the \Jiere name the Special Act'], by the [Jierc name the company or other promoters of the undertaking~\, incorporated [or constituted] by the said Act, do hereby convey to the said Qow.^imy [or other dcscrip- tioii], their successors and assigns, all [describing the premises to be conveyed], together w^ith all ways, rights, and appur- tenances thereto belonging, and all such estate, right, title, and interest in and to the same as I am or shall become seised or possessed of, or am by the said Act empowered to 346 Code of the Law of Comj^ensation. Schedules. coDvey, to liolcl the premises to tlie said company [or oilier (lescription^, their successors and assigns, for ever, according to the true intent and meaning; of the said Act. In witness whereof I have hereunto set my hand and seal, the day of in the year of our Lord SCHEDULE (B.). Form of Conveyance on Chief Bent. I of in consideration of the rent-charge to- be paid to me, my heirs and assigns, as herein-after men- tioned, by "the promoters of tlie undertaking" \_naming theni], incorporated \or constituted] by virtue of the [liere name the Special Act^, do hereby convey to the said company [or other description j, their successors and assigns, all [de- scribing tlie premises to he con re tied], together with all ways, rights, and appurtenances thereunto belonging, and all my estate, right, title, and interest in and to the same and every part thereof, to hold the said premises to the said company [or other description'], their successors and assigns^ for ever, according to the true intent and meaning of the said Act, they the said company [or other description], their successors and assigns, yielding and paying unto me, my heirs and assigns, one clear yearly rent of by equal quarterly [or half-yearly, as agreed upon,] portions, hence- forth, on the [stating the dags'], clear of all taxes and deduc- tions. In witness whereof I hereunto set my hand and seal, the day of " in the year of our Lord [SCHEDULE (C.).] Form of Conviction. [ to wit. Be it remembered, that on the day of in the year of our Lord A.B. is convicted before us C, I)., two of Her Majesty's justices of the peace for the county of [here describe the ofence gcnerallg, and the time and place when and where co)innitted], contrary to the [here name the Special Act]. Given under our hands and seals, the day and year first above written. C, D.] This schedule has been repealed by the Statute Law Revision Act, 1892. It had previously been repealed as regards England by the Summary Jurisdiction Act, 1884 (47 & 48 Vict, c. 43), s. 4. Land Clauses Consolidation Acts (1845) Amendment Ad, 18G0. 347 THE LANDS CLAUSES CONSOLIDATION ACTS (1845) A:\IENDMENT ACT, 1860 (23 & 24 Vict. c. 106). An Ad to (uncnd the Lands Clauses Consolidation Ads (1845) in regard to Sales and Compensation for Land hij icay of a Eent-charge, Annual Feu Dutif or Ground Annual, and to enable Her Majestifs Principal Secretary of State for the War Department to avail liimself of the Powers and Provisions contained in the same Acts. [20tli August, 1860. [Whereas it is expedient to extend the provisions of the ^s,-^Virt. Lands Clauses Consolidation Ads, 1845, in regard to sales ^'•^^• of land, or compensation for damages, in consideration of an annual rent-charge, annual feu duty or ground annual, and to enable Her Majesty's L^rincipal Secretary of State for the War Department to avail himself of the powers and provisions contained in the same Act for the purchase of lands wanted for the service of the War Department or for the defence of the realm: Be it enacted by the Queens most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : ] [1. So much of the tenth section of the Lands Clauses sect. i. Consolidation Act, 1845, as provides that, save in the case pa>-tofxnfAO of lands of which any person is seised in fee or entitled to '>f recited Act dispose absolutely for their own benefit, the consideration to be ''^^'^"'"' paid for any lands, or for any damage done thereto, shall be in a gross sum, is liereby repealed.^ The preamble has been repealed by the Statute Law Revision Act, 1892, and sect. 1 by the Statute Law Revision Act, 1875. 2. The power to sell and convey lands in consideration Sect. 2. of an annual rent-charge provided by the tenth section of .>>ects'ii7 the said Act, and the power to recover such rent-charge and ii of re- provided by the eleventh section of the said Act, are to power to hereby extended to all cases of sale and purchase or seu.&c. lands •^ . , • 1 A 1 . for an annual compensation under the said Act where the parties rent-charge, interested in such sale or entitled to such compensation extem/Xto"' are under any disability or incapacity, and have no power all sales, &c. to sell or convey such lands, or to receive such compensation, are^nder^'^^ except under the provisions of the said Act. disability. 348 Code of the Law of Compensation, Sect. 3. Similar pro- viso with re- gard to lands sold iiiider sect. 10 of 8 & 9 Vict. c. 19. 3. The power to sell and convey lands in consideration of an annual feu duty or ground annual, under the tenth section of the Lauds Clauses Consolidation (Scotland) Act, 1845, and the power to recover such annual feu duty or ground annual, are hereby extended to all cases of sale or purchase or compensation under the said Act, where the parties interested in such sale are under any disability or incapacity, and have no power to sell or convey such lands, or to receive such compensation, except under the provisions of the said Act. be settled in manner directed in the 9th section of recited Acts. Sect. 4. 4. In every case of such sale or compensation by any Amoi^^^of parties other than parties seised in fee or entitled to dispose rent-charge to absolutely of the lauds so sold or damao-ed, the amount of such rent-charge, annual leu duty or ground annual, herein- before mentioned, shall be settled in the manner directed in the ninth section of each of the said Acts respectively : Provided, that the amount of such annual rent-charge, annual feu duty or ground annual, shall in no case be less than one fourth part greater than the net annual rent received by the parties beneficially interested in such lands upon an average of the last seven years ; and that a charge of five per cent, on the gross sum estimated or fixed as aforesaid, by way of compensation for any damage that may be done to the said lands, shall, in all such cases be added to and shall form a part of the said rent-charge, annual feu duty or ground annual ; and that no fine, foregift, grassum, premium, or other consideration in the nature thereof, shall be paid or taken in respect of the lands so sold or damaged, other than the annual rent- charge, annual feu duty or ground annual made payable for such lands : Provided also, that such rent-charge shall be and remain upon and for the same uses, trusts, and pur- poses as those upon which the rents and profits of the land so conveyed stood settled or assured at or immediately before the conveyance thereof, and shall be a first charge on the tolls and rates, if any, payable under tlie Special Act. Sect. 5, 5. In case the promoters of the undertaking shall be If lands pur- cmpowercd, by any Act or Acts relating thereto, to be chased by way passcd after the passiuo' of this Act, to borrow money to borrowing ° ' ail aiiiount iiot exceeding a prescribed sum, then in the powcrstobe gyent of the promoters of the undertakino; ao-reeino- at any reduced jtro- . i . ci-i -i i portionaiiy. time alter the passing oi this Act with any person under the powers of this Act and of either of the Acts herein- Lands Clauses Consolidation Acts (1845) Amendment Act, 1860. 849 before mentioned, or of eitlier of the said Acts, only for ssct. 5. the purchase of any hinds in consideration of the payment ~~ of a rent-charge, annual feu duty, or ground annual, the jDOwers of the promoters of the undertaking for borrowing money shall be reduced by an amount equal to twenty years purchase of any rent-charge, annual feu duty or ground annual, so for the time being payable. [6. The clauses contained in " The Lands Clauses Consoli- sect. 6. dation Act (1845)," relating to the jnu'chase of lands hi/ agree- ^,^,.^^' ment, and to agreements for sale, and conveyances, sales, and cianscs in i ^ releases of ami lands or hereditaments, or ami estate or interest '"^ Y'^'t-'^-}^, 7 • i • 7 7- 7 •?• 7 77 7 extended to therein, bn parties under disabilitif, shall extend and be applic- purcha.mof able to all purchases of land and hereditaments for public ^Sf-^Ii-"/*''' purposes which shall be hereafter made bij the council of am/ I'oxe.'i. city or borough, with the sanction of the Commissioners of Her Majesty s Treasury, wider the powers for that purpose contained in ''The Municipal Corporation Mortgages, d-c. Act, (I860)."] This section has been repealed as regards England by the Statute Law Revision Act, 1892. It had previously been repealed as regards boroughs within the Municipal Corporations Act, 1882, by sect. 5 of the latter Act, but was re-enacted by sect. 107 of that Act, which is as follows : " (1) Where a municipal corporation has not power to purchase or acquire land, or to hold land in mortmain, the council may, with the approval of the Treasury, purchase or acquire any land in such manner and on such terms and conditions as the Treasury approve, and the same may be conveyed to aud held by the corporation accordingly ; (2) The provisions of the Lands Clauses Consolidation Acts, 1845, 1860, and 1869, relating to the purchase of land by agreement, and to agreements for sale, and conveyances, sales, and releases of any lands or hereditaments, or any estate or interest therein by persons under disability, shall extend to all purchasers of land under this section." 7. For the purchase or acquisition of any messuages, sect. 7. lands, tenements, and hereditaments wanted for the po^eTu^ service of the Admiralty or of the War Department or secretary for for the defence of the realm, it shall be lawful for Her the poVeS Majesty's Principal Secretary of State for the War Depart- given to pro- ment for the time being to use all or any of the powers and Ji^dertakings provisions by the Lands Clauses Consolidation Act, 1845, by8&9Vict. and by the Lands Clauses Consolidation (Scotland) Act, 350 Code of the Law of Compensation. Sect. 7. 1845, given to promoters of the undertaking, as therein mentioned, and for such purposes the said Principal Secretary shall be deemed and taken to be the promoters of an undertaking within the meaning of the said Act, and all the powers and provisions thereof shall, if used by Her Majesty's Principal Secretary of State for the War Depart- ment, be treated as if they were contained in the fifth and sixth Victoria, chapter nine by-four, for the purpose of being used and made available by the principal officers of Her Majesty's Ordnance, and had been transferred to the said Principal Secretary for the time being by the eighteenth and nineteenth Victoria, chapter one hundred and seven- teen, for the purposes aforesaid : Provided always, that nothing herein contained shall authorise any purchase otherwise than by agreement of any land, except accord- ing to the provisions of the twenty-third section of the said Act of the fifth and sixth Victoria, or prejudice or affect the powers and authorities of the said Principal Secretary for the time being under the said last-mentioned statutes or either of them. Sect. 8. 8. This Act shall be read and construed as part of the This Act"and ^^^^ Lauds Clauscs Consolidation Act, 1 845, or of the Lands 8&9Vict. Clauses Consolidation (Scotland) Act, 1845, in all matters bJco^nstrued ^^^ which it relates to the said Acts respectively ; and in together. citing this Act in other Acts of Parliament, and in legal instruments, it shall be sufficient to use the expression of " The Lands Clauses Consolidation Acts Amendment Act, 1860." THE LANDS CLAUSES CONSOLIDATION ACT (1845) AMENDMENT ACT, 1869 (32 & 33 Vict. c. 18). An Act to amend the Lands Clauses Consolidation Act. [24th June, 1869. [Whereas it is expedient that the provisions contained in ^^ The Lands Clauses Consolidation Act, 1845," slwuld he .amended : Be it therefore enacted and declared hij the Queen s most Excellent Majesty, hy and with the adcice and consent of the Lords Spiritual and Temporcd, and Commons, in this present L^arliament assembled, and hy the authority of the same, as follows ;] Lands Clauses Consolidation Act (1845) Amendment Act, 1869. 351 [1. ]]lure in England, under ''The Lands Clauses Con- sect. i. solidation Act, 1845," or any Act incorporatinfi the same, any c„.st7^ question of disputed compensation is determined hy arbitration, urhitratiuns, the costs of and incidental to the arbitration and award shall, 'IjariyZlZ if either partii so requires, be taxed and settled as between the quires to he parties by ami one of the taxing masters of the Superior Courts ,„aderof of Law ; and such fees may be taken in respect of the^ taxation f^f^'^^^'f as may be fxed in pursuance of the enactments relating to the fees to be 'demanded and taken in the otfiees of such masters, and all those enactments, including the enactments relating to the taking of fees by me(Uis of stamps, shcdl extend to the fees in respect of the said taxation.] The preamble has been repealed by the Statute Law Eevision Act, 1893. Section 1 has been repealed by the Lands Clauses (Taxation of Costs) Act, 1895, s. 1 (2) (o). The latter Act makes the system of taxing costs the same whether compensation is assessed by arbitration or by a jury (j))- [2. Section thirty-three of the Begulation of Puiilways Act, sect. 2. 1868, is hereby repealed, and any proceedings commenced in j^^^^^'^.^i mirsuance of that section may be continued under this Act as if s- :^2 Vict. .7777 7 7 vn '■• 119..?. 33. tney had been commenced under it.j This section has been repealed by the Statute Law Revision Act, 1883. 3. Where any lauds by the special Act authorised to be sect. 3. taken are situate within the city and liberty of Westminster, p^-ovi^i.e. then, with respect to those lands, in every case in which specting lauds any question of disputed compensation is required by the mjuster. Lands Clauses Consolidation Act, 1845, or any Act amend- ing the same, to be determined by the verdict of a jury, the high bailiff of the city and liberty of Westminster, or his deputy, shall be deemed to be substituted for the sheriff throughout such of the enactments of the Lands Clauses Consolidation Act, 1845, and any Act amending the same as relates to the reference to a jury. 4. This Act may be cited as "The Lands Clauses Con- sect. 4. solidation Act, 1869," and shall be construed as one with gijoj.t~^e^ the Lands Clauses Consolidation Act, 1845, and the Lands construction Clauses Consolidation Acts Ameudment Act, 1860, and of Acts. these Acts and this Act may be cited together as the Lands Clauses ConsoHdation Acts, 1845, 1860, and 1869. (o) Post, p. 352. (jj) Compare sects. 34 and 52 of the Lands Clauses Consolidation Act, 1845, ante, pp. 95, 132. 352 Code of the Law of Compensation. 8 & 9 Vict. c. 18. Sect. 1. Amendment of s. 28 of 8 Vict. c. IS, extending the power of appointment of umpire by Board of Trade. Sect. 2. Short title. THE LANDS CLAUSES (UMPIRE) ACT, 1883 (46 Vict. c. 15). An Act to amend the Lands Clauses Consolidation Act, 1845. [18tli June, 1883. Whereas it is expedient that the provisions contained in the Lands Clauses Consolidation Act, 1845, in relation to the appointment of umpires should be amended : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. The following words in section twenty-eight of the Lands Clauses Consolidation Act, 1845, are hereby repealed, that is to say, " in any case in which a railway company shall be one party to the arbitration, and two justices in any other case," and that section shall, in relation to the appointment of any umpire under the provisions thereof after the passing of this Act, apply as if such words were omitted, and the same section shall accordingly be read and have effect as follows : 28. If in either of the cases aforesaid the said arbitrators shall refuse or shall for seven days after request of either party to such arbitration neglect to appoint an umpire, the Board of Trade shall, on the application of either party to such arbitration, appoint an umpire, and the decision of such umpire on the matters on which the arbitrators shall differ, or which shall be referred to him under this or the Special Act, shall be final. 2. This Act may be cited as the Lands Clauses, (Umpire) Act, 1883. THE LANDS CLAUSES (TAXATION OF COSTS) ACT, 1895 (58 Vict. c. 11). An Act to amend the Laic relating to the Taxation of Costs wider the Lands Clauses Acts. [14th May, 1895. Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual The Lands Clauses {Taxation of Costs) Act, 1895. 353 and Temporal, aud Commons, in this present Parliament assembled, and by the authority of the same, as follows : l._(l,) AYhere under the Lands Clauses Consolidation Act, 1845, or any Act incorporating the same, any c[uestion of disputed compensation is determined by the verdict of a jury, or by arbitration, the costs of and incidental to the inquiry or to the arl)itration and award (as the case may be), shall, if either party so requires, be taxed and settled as between the parties by one of the masters of the Supreme Court, and such fees shall be taken in respect of the taxation as may be fixed in pursuance of the enact- ments relating to the fees to be taken in the offices of those masters ; and all those enactments (including the enact- ments relating to the taking of fees by means of stamps) shall extend to the fees in respect of such taxation. (2.) Section forty-five of the Regulation of Railways Act, 1868, and section one of the Lands Clauses Consolida- tion Act, 1869, are hereby repealed. Sect. 1. Fees for tax- ing costs in compensation inquiries and arbitratiuns. 8 & 9 Vict, c. 18. 31 & 32 Vict, c. 119. 32 & 33 Vict, c. 18. ide tiie Lands Clauses Acts. Refusal of master. ARTICLE 1.— TMs section only applies to arbitrations under the Arbitrations . 1 • -1 -L i.i 111 respect or Lands Clauses Acts, and not to arbitrations which embrace matters matters out that could not be the subject of arbitration under those Acts, except by agreement between the parties. This was decided in Doulton v. Metropolitan Board of Works (q), a case under sect. 1 of the Lands Clauses Act, 1869. This latter section is repealed by the Lands Clauses (Taxation of Costs) Act, 1895, and in effect re-enacted by sect. 1 of that Act. ARTICLE 2.— Where a master has refused to tax costs a mandamus may be granted by the Court. So held in Reg. v. Manley-Smith (r). The master is not bound to tax the costs of an arbitration unless the claimant is entitled to such costs under sect. 34 of the Lands Clauses Consolidation Act, 184.5 {s). The Chancery taxing masters, whose office is amalgamated with, aud who are themselves transferred to, the Central Office by yirtue of the General Rules which came into operation in January, 1902, (5) (1870j, L. E. 5 Q. B. 333; 39 L. J. Q. B. 165; 18 W. E. 790; ante, p. 101. (r) (1883), 12 Q. B. D. 481 ; 53 L. J. Q. B. 115 ; 32 W. E. 275. See also Heg. V. Maiilfij-Smith, lie Church and London School Board (1892), 67 L. T. 197; 40 W. E. 333 ; 56 J. P. 729; Rera, in which case Rex v. Severn and Wye Railway Company (1819), 2 B. & Aid. 646, was explained. 362 Code of the Law of Compensation. Sect. 7. Omission of intermediate lessees from book of reference. Sect. 8. Works nnt to be proceeded with until plans of all alterations authorised by Parliament have been deposited. lands affected by such proposed correction, to apply to two justices for the correction thereof; and if it shall appear to such justices that such omission, mis-statement, or erroneous description arose from mistake, they shall certify the same accordingly, and they shall in such certificate state the par- ticulars of any such omission, and in what respect any such matter shall have been mis-stated or erroneously described ; and such certificate shall be deposited with the clerks of the peace of the several counties in which the lands affected thereby shall be situate, and shall also be deposited with the parish clerks of the several parishes in England, and with the postmasters of the post towns in or nearest to such parishes in Ireland, in wdiich the lands affected thereby shall be situate ; and such certificate shall be kept by such clerks of the peace, parish clerks, and postmasters respectively along with the other documents to which they relate : and thereupon such plan, book of reference, or schedule shall be deemed to be corrected according to such certificate ; and it shall be lawful for the company to make the works in accordance with such certificate. ARTICLE 1. — The description in the plans and book of reference is not intended to be absolutely accurate, and the entire omission from, the book of reference of intermediate lessees does not disentitle the company to take the lands under their compulsory powers. So held in Kemp v. West End and Crystal Palace Raihcay Compa?iy (/) . 8. It shall not be lawful for the company to proceed in the execution of the railway unless they shall have -pre- viously to the commencement of such work deposited with the clerks of the peace of the several counties in or through which the railway is intended to pass a plan and section of all such alterations from the original j^lan and section as shall have been approved of by Parliament, on the same scale and containing the same particulars as the original plan and section of the railway, and shall also have deposited with the clerks of the several parishes in England, and the postmasters of the post towns in or nearest to such parishes in Ireland, in or through which such alterations shall have been authorised to be made, copies or extracts of or from such plans and sections as shall relate to such parishes respectively. (/) (1855), 1 K. & J. 6S1 ; 3 W. E. 607 ; 1 Jui-. N. S. 1012. and allow inspection. Tlic Baihcaijs Clauses Consolidation Act, 1845. 363 9. The said clerks of the peace, parish clerks, and post- sect. 9. masters shall receive the said plans and sections of altera- cierkT^tiie tions, and copies and extracts thereof respectively, and P^ace, &c., to iTi -1 n 1 •1--11 1 receive pLius shall retain the same, as well as the said original plans and of alterations, sections, and shall permit all persons interested to inspect any of the documents aforesaid, and to make copies and extracts of and from the same, in the like manner, and upon the like terms, and under the like penalty for default, as is provided in the case of the original plans and sections by an Act passed in the first year of the reign of Her present i\Iajesty, intituled An Act to compel Clevis of the 7W.iv. Peace for Counties and other Persons to take the Custodij of ^ \^]^^^' such Documents as shall he directed to he deposited idth them under the Standing Orders of either House of Parliament. 10. True copies of the said plans and books of reference, sect. lo. or of any alteration or correction thereof, or extract there- copieTof from, certified by any such clerk of the peace, which plans, &c., to certificate such clerk of the peace shall give to all parties interested, when required, shall be received in all Courts of justice or elsewhere as evidence of the contents thereof. 11. In making the railway it shall not be lawful for the Sect^i. company to deviate from the levels of the railway, as Limiting de- referred to the common datum line described in the section ^'ation from datum line approved of by Parliament, and as marked on the same, described on to any extent exceeding in any place five feet, or, in passing sections, &c. through a town, village, street, or land continuously built upon, two feet, without the previous consent in writing of the owners and occupiers of the land in which such devia- tion is intended to be made ; or in case any street or public highway shall be affected by such deviation, then the same shall not be made without the like consent of the trustees or commissioners having the control of such street or public highway, or, if there be no such trustees or commissioners, without the like consent of two or more justices of the peace in petty sessions assembled for that purpose, and acting for the district in which such street or public high- way may be situated, or without the like consent of the commissioners for any public sewers, or the proprietors of any canal, navigation, gas works, or waterworks affected by such deviation : Provided always, that it shall be lawful Proviso. for the company to deviate from the said levels to a further extent without such consent as aforesaid, by lowering solid 364 Code of the Law of Compensation. Sect. 11. Proviso. embankments or viaducts, provided that the requisite height of headway as prescribed by Act of Parliament be left for roads, streets, or canals passing under the same : Provided also, that notice of every petty sessions to be holden for the purpose of obtaining such consent of two justices as is herein-before required shall, fourteen days previous to the holding of such petty sessions, be given in some news- ])aper circulating in the county, and also be affixed upon the door of the parish church in which such deviation or alteration is intended to be made, or, if there be no church, some other place to which notices are usually affixed. The powers of deviation are extended by the Railways Clauses Act, 1863, sect. 4 (g). The meaninf? of the word town has already been explained (gg) . Sect. 12. Public notice to be giveu previous to making greater devia- tions. Power to the owners of ad- joining lands to appeal to the Board of Trade" against such devia- tions. 12. Before it shall be lawful for the company to make any greater deviation from the level than five feet, or, in any town, village, street, or land continuously built upon, two feet, after having obtained such consent as aforesaid, it shall be incambent on the company to give notice of such intended deviation by public advertisement, inserted once at least in two newspapers, or twice at least in one newspaper, circulating in the district or neighbourhood where such deviation is intended to be made, three weeks at least l)efore commencing to make such deviation ; and it shall be lawful for the owner of any lands prejudicially affected thereby, at any time before the commencement of the making of such deviation, to apply to the Board of Trade, after giving ten days' notice to the company, to decide whether, having regard to the interests of such applicants, such proposed deviation is proper to l)e made ; and it shall be lawful for the Board of Trade, if they think fit, to decide such question accordingly, and by their certificate in writing either to disallow the making of such deviation or to authorise the making thereof, either simply or with any such modification as shall seem proper to the Board of Trade ; and after any such certificate shall have been given by the Board of Trade it shall not be lawful for the company to make such deviation, except in con- formity with such certificate. {^ral v. Teirkeshnrt/ awl Malvern Railway Company (18G3), 32 L. J. Ch. 482; 1 De G. J. & S! 423; 8 L, T. 682. 3G6 Code of the Law of Compensation. Sect. 14. Sect, li does not apply to cross- roads. Alteration of level of approach to bridsre. " Bridge" an " engineer- ing " work. to be consistent with the public safety, and not pre- judicial to the public interest ; and in gradients of or exceeding the inclination of one in a hundred, to any extent not exceeding three feet per mile, or to any further extent which shall be so certified by the Board of Trade as aforesaid : It shall be lawful for the company to diminish the radius of any curve described in the said plan to any extent which shall leave a radius of not less than half a mile, or to any further extent authorized by such certificate as aforesaid from the Board of Trade : It shall be lawful for the company to make a tunnel, not marked on the said plan or section, instead of a cutting, or a viaduct instead of a solid embankment, if authorised by such certificate as aforesaid from the Board of Trade. ARTICLE 1.— Section 14 applies to the construction of the railway, but not to cross-roads. So held in Beg. v. Caledonian Raikvay Company (I). A com- pany may alter the level of the approaches to a bridge, if the land over which they propose to exercise their powers is described on the plans or mentioned in the book of reference, and provided they make compensation to the parties injured by the course which they propose to adopt (/»). ARTICLE 2.— A bridge forming part of the line of railway itself is an " engineering " work within sect. 14. So held in Attorney-General v. Teivkcshury and Malvern Railway Company {n) . Sect. 15. Lateral deviations. 15. It shall be lawful for the company to deviate from the line delineated on the plans so deposited, provided that no such deviation shall extend to a greater distance than the limits of deviation delineated upon the said plans, nor to a greater extent in passing through a town, village, or lands continuously built upon than ten yards, or elsewhere to a greater extent than one hundred yards from the said line, and that the railway by means of such deviation be not made to extend into the lands of any person, whether owner, lessee, or occupier, whose name is not mentioned in (0 (1851), 16 a B. 19; 20 L. J. Q. B. 147 ; \o Jiir. 396. (?/i) Beardincr v. Ijindiyn and North-WcsUrn Roilwdy Company (1849), 1 M. & G. 112 ; 18 L. J. Ch. 432 ; 5 E. C. 728 ; 13 Jui-. 327. («) (1863), 32 L. J. Ch. 482; 1 De G. J. & S. 423; 8 L. T. 682. The Eailways Clauses Consolidation Act, 1845. 367 the books of reference, without the previous consent in sect. 15. writing of such person, unless the name of such person shall have been omitted by mistake, and the fact that such omission proceeded from mistake shall have been certified in manner herein or in the Special Act provided for in cases of unintentional errors in the said books of reference. ARTICLE 1.—" Deviation " means shifting the work in its integrity Cleaning of from one site to another which may be deemed more suitable. ilt^viation. Per Lord AVatsou in Herron v. Rathmines and Rathgar Improve- ment Commissioners {0). It does not imply a right not only to alter the situation of the work, but in doing so to dispense with a half or two-thirds of it. Where promoters of an undertaking have authority from Parliament to interfere with private property on certain terms, any person whose property is interfered with by virtue of that authority has a right to require that the promoters shall comply with the letter of the enactment so far as it makes provision on his behalf. Nor can any Court remodel arrangements sanctioned, or relax conditions imposed, by Act of Parliament (0). It had been held in Doe d. Armitstead v. North Staffordshire Measurement Railway Company (j)) that the expression " deviation " in this fromlhe'^^ section is used with reference to the medium filum via of the medium Jilum railway as laid down in the parliamentary plans. In that case Patteson, J., said: "But it is contended secondly, that as to fifteen perches, the entry was not lawful, and being bad in part, is bad altogether : first, because they are beyond the line of deviation. . . . With respect to the first ground of objection, we are of opinion that the expression ' deviation ' in the Acts of Parliament, and particularly 8 et 9 Vict. c. 20, s. 15, is to be taken with reference to the line of railway only ; that is that the line of railway actually laid down shall not deviate more than one hundred yards from the line laid down and delineated in the parliamentary plans, the medium filum vice of each being the commencement and termination in measuring those one hundred yards. This appears to be the natural construction of the Acts, and is in accordance with the decision of the Court of Exchequer in Doe d. Payne v. Bristol and Exeter Railway Company {q), and of the Vice- Chancellor of England in Crawfard v. Chester and Holijhead Railway Coin- pan y {r). In this case there has been no deviation in that sense, and the first ground of objection is not in truth raised by the facts." (o) [1892], A. C. 498 ; 67 L. T. 658. {p) (1851), 20 L. J. Q. B. 2-19 ; 16 Q. B. 526; 15 Jm-. 9-14. iq) (1840), 6 M. & W. 320; 2 R. C. 75. (r) (1847), 11 Jur. 917. via. 368 Code of the Law of Compensation. Sect. 15. Does not apply to widening of an existing line — a widening must be con- structed wholly within the limits of deviation. Where com- pany have ex- ceeded their powers — action by landowner — special damage. Deviation from de- posited plans — capricious use of powers of deviation — injunction. In Finch v. London and South-Western Railtcai/ Company {s) it was held that the decisions under sect. 15, to the effect that the distance to which a railway company may deviate from the line delineated on the parliamentary plans is to be measured from the medium filum vice of the line actually laid down to the line delineated on the plans, apply only to the construction of a new line of railway, and not to the widening of an existing line. It was held that the company were bound to construct their widening wholly within the limits of deviation, and had exceeded their powers in constructing it outside those limits. ARTICLE 2. — Where the company have exceeded their powers by construeting- a line beyond the limits of deviation, an action cannot be maintained by a landowner who has not suffered special damage. So held in Finch v. London and South - Western Railway Comjyany (t). In Wathins v. Great Northern Railway Company {u) it was held that by sects. 6 and 55 of the Railways Clauses Consolidation Act, 1845, the remedy by action for an interference with a private right of w^ay was taken away, except where special damage had been suffered. In Wood V. South Staffordshire Railway Company {x) a land- owner made an agreement not to oppose a railway company if an approach were made to his premises from a turnpike road which it was proposed to divert. After the approach had been made, it became necessary for the company further to divert the turnpike road, but within the limits of deviation, and consequently necessary to alter the line of the approach to the landowner's premises. It was held that the company were not precluded from making such alteration. ARTICLE 3.— If a railway company keep within their powers of deviation, an injunction will not be granted to restrain them because their deviation from the deposited plans is such as lo arouse appre- hension that inconvenience and risk will be caused to the public, unless it can be proved that they have used their powers of deviation capriciously. So held in Attorney-General v. Great Western Railway Company (y). {s) (1890), 44 Ch. D. 330 ; 59 L. J. Ch. 458 ; 62 L. T. 881 ; 37 W. E. 350 ; followin,!> Ihiiolimj v. Fouti/pool, Ullllll U 111 Oil* terminus to a river. tiou between station and So held in Sadd v. Maiden, dr., Railway Company {m), "ver. ARTICLE 7. — The power given to railway companies "from time I'nwer to alter to time to alter, repair, or discontinue the . . . works" is not subject sui!ject'toTe- to a restriction in the special Act as to the time for completion of the striction as to ., time for com- railway. pietio,,. This was decided by the Court of Appeal in Enislcy v. Xortli- Eastcrn Ilaibcay Company (n). ARTICLE 8. — The words "do as little damage as can be" do not "Do as little mean that the works must be made without any damage, but refer to be'^^^^^nf" the mode of constructing the works. ing of. So held by Lord Campbell, C.J., in Reg. v. East and West India Docks Company (o), and approved by Jessel, M.R., in Fenwick v. East London Railway Company {p). A railway company are bound to exercise their powers with dis- Company cretion, and without negligence. If they execute their works theh- powers negligently, or take insufficient precautions to secure the safety of without adjoining property, the Court will grant an injunction to restrain the negligent exercise of their powers {q). Where there are two modes of constructing their works the Where there -,,■,, ^ • ^ 1TT11, i ^1'*-* two modes company must adopt that course which would do the least amount of construct- of injury to the neighbouring property {r). ^'^S works. ARTICLE 9. — A railway company is bound to exercise its powers Powers must 1 , , ^L.^• • be exercised in such a way as not to cause a pubhc nuisance. g^ ^^ ^^^ ^ K-i J IT • •, -n 1 cause a public a railway company does cause a public nuisance it will be nuisance compelled to alter the works so as to abate the nuisance caused, if it is not the necessary exercise of the company's privileges (s). Nothing but necessity will justify a company in carrying on Damage to adjoining (wi) (1851), 6 Ex. 143; 20 L. J. Ex. 102 ; 6 E. C. 779. See also Cother v. Midland Railwmj Company (1848), 17 L. J. Ch. 235; 5 E. C. 187; 2 Ph. 469. («) [1896], 1 Ch. 418 ; 65 L. J. Ch. 385 ; 74 L. T. 113 ; 60 J. P. 182. (o) (1853), 2 E. & B. 466 ; 22 L. J. Q. B. 380; 17 Jur. 1181. Ip) (1875), L. E. 20 Eq. 544 ; 44 L. J. Ch. 602 ; 23 W. E. 901. See also Birmin(jhany (1841), 2 R. 0. 380; Coats v. Clarence Hail way Compani/ (1830), 2 lluss. & My. 181 ; Butjnall V. Loudon and Nortlt-Western liailway Co/npani/ (1862), 31 L. J. Ex. 121, 180; 7 U..& N. 423. (») [1900], 2 Ir. L. R. 325. The Eailwaijs Clauses Consolidation Act, 1845. 375 executing the office of Lord High Admiral, to abate and sect^T. remove the same, and to restore the site thereof to its former condition, at the cost and charge of the company ; and the amount thereof may be recovered in the same manner as a penalty is recoverable against the company. The words in italics have been repealed by the Statute Law Revision Act, 1891. 18. It shall be lawful for the company, for the purpose sect. is. of constructing the railway, to raise, sink, or otherwise ^iter^nof alter the position of any of the watercourses, water pipes, water and gas or gas pipes belonging to any of the houses adjoining or i^^P^^'"'^- near to the railway, and also the mains and other pipes laid down by any company or society who may furnish the inhabitants of such houses or places with water or gas, and also to remove all other obstructions to such con- struction, so as the same respectively be done with as little detriment and inconvenience to such company, society, or inhabitants as the circumstances will admit, and be done under the superintendence of the company to which such water pipes or gas pipes belong, and of the several com- missioners or trustees, or persons having control of the pavements, sewers, roads, streets, highways, lanes, and other public passages and places within the parish or dis- trict where such mains, pipes, or obstructions shall be situate, or of their surveyor, if they or he think fit to attend, after receivino- not less than forty-eio-ht hours' notice for that purpose. 19. Provided always, that it shall not be lawful for the sect. 19. company to remove or displace any of the mains or pipes e^^n^p"^ ^ot (other than private service pipes), syphons, plugs, or other to disturb ^ I T T '^. , i X / ./ J. • ; +1^ pipes until works belongmg to any such company or society, or to do they have laid anything to impede the passage of water or gas into or down others. through such mains or pipes, until good and sufficient mains or pipes, syphons, plugs, and all other works necessary or proper for continuing the supply of water or gas as sufficiently as the same was supplied by the mains or pipes proposed to be removed or displaced, shall, at the expense of the company, have been first made and laid down in lieu thereof, and be ready for use, in a position as little varying from that of the pipes or mains proposed to be removed or displaced as may be consistent with the con- struction of the railwav, and to the satisfaction of the 376 Code of the Law of Compensation. Sect. 19. surveyor or engineer of such water or gas company or society, or, in case of disagreement between sucli surveyor or engineer and the company, as a justice shall direct. Sect. 20. 20. It shall not be lawful for the company to lay down Pipes not to ^^Vf ^^^^^^ pipcs Contrary to the regulations of any Act of be laid con- Parliament relatino- to such water or gas company or society, trary to any , i.ii ^ P ,^ ^,i Act, and or to cause any road to be lowered lor the purposes oi the eighteen railway, without leavino- a coverino; of not less than road to be eio^htcen inches from the surface of the road over such retained. mams or pipes. Sect. 21. 21. The company shall make good all damage done to Company to ^^^^ i:>roperty of the water or gas company or society, by make good all the disturbance thereof, and shall make full compensation ^ ■ to all parties for any loss or damage which they may sus- tain by reason of any interference with the mains, pipes, or works of such water or gas company or society, or with the private service pipes of any person suj)plied by them with water. Sect. 22. 22. If it shall be necessary to construct the railway or ,„, — - any of the works over any mains or pipes of any such When railway "^ • i in •crosses pipes, Water or gas company or society, the company shall, at raakeT^^" their own expense, construct and maintain a good and culvert. sufficient culvert over such main or pipe, so as to leave the same accessible for the purpose of repairs. Sect. 23. 23. If by any such operations as aforesaid the company PenaiTTor ^^^^^^ interrupt the supply of any water or gas they shall obstructing forfeit twenty pounds for every day that such suppl}^ shall o™ten ^'^^ ^^^ ^^ interrupted, and such penalty shall be appropriated to the benefit of the poor of the parish in whi(ih such obstruction shall occur, in such manner as the overseers of the poor of the parish shall direct. Sect. 24. 24. If any person wilfully obstruct any person acting ^ r~7 under the authority of the comi^any in the lawful exercise Penalty for o .^ ■ ■ ^ • i i- /• i -i obstructing 01 tlicir powcr. 111 scttiiig out tlic liiie 01 the railway, or orraihvaT" ^^^^^^ "I'* ^^" ^"^^^^^^^ ^^"7 ]>oles or Stakes driven into the ground for the purpose of so setting out the line of the railwciy, or deface or destroy any marks made for the same l)urpose, he shall forfeit a sum not exceeding five pounds for every such offence. The Piailwaifs Clauses Consolidation Act, 1845. 877 And with respect to the temporary occupation of hmds sect. 30. near the railway during the construction thereof, be it 'remii^ni enacted as follows : «*« ofiaM^. 30. Subject to the provisions herein and in the Special Company may Act contained, it shall be lawful for the company, at any poSuy^'"' time before the expiration of the period by the Special Act private roads limited for the completion of the railway, to enter upon huudici yards *ind use any existing private road, being a road gravelled "f the railway. or formed with stones or otlier hard materials, and not being an avenue or a planted or ornamental road, or an approach to any mansion house, within the prescribed limits, if any, or, if no limits be prescribed, not being more than five hundred yards distant from the centre of the railway as delineated on the plans ; but before the com- pany shall enter upon or use any such existing road they shall give three weeks' notice of their intention to the owners and occupiers of such road, and of the lands over which the same shall pass, and shall in such notice state the time during which, and the purposes for which, they intend to occupy such road, and shall pay to the owners and occupiers of such road, and of the lands through which the same shall pass, such compensation for the use and occupation of such road, either in a gross sum of money or by half-yearly instalments, as shall be agreed upon between such owners and occupiers respectively and the oompany, or in case they differ about the compensation the same shall be settled by two justices, in the same manner as any compensation not exceeding fifty pounds is directed to be settled by the said Lands Clauses Consolidation Act. 31. It shall be lawful for the owners and occupiers of Sect. 31. any such road, and of the lands over which the same powerto passes, within ten days after the service of the aforesaid owners and •t^.' ..•'.. , i-, occupiers ot notice, by notice m writing to the company to object to road and land the company making use of such road, on the ground that o'Jtj'J.^road?^* other roads, such as the company are herein-before should be authorised to use for the purposes aforesaid, or that some *''^'^^^' public road, w^ould be more fitting to be used for the same ; and upon the objection being so made such proceedings may be had as are herein-after mentioned w^ith respect to lands temporarily occupied by the company, in respect of which three weeks' notice is herein-after required to be given, and in the same manner as if in the provisions relative to such proceedings the word road or roads, or the ■words road and the land over which the same passes, 378 Code of the Law of Compensation. Sect. 31. as the case may require, had been substituted in such provisions for the word lands. Sect. 32. Power to take temporary possession of land without previous pay- ment of price. 32. Subject. to the provisions herein and in the Special Act contained, it shall be lawful for the company, at any time before the expiration of the period by the Special Act limited for the completion of the railway, without making, any previous payment, tender, or deposit, to enter upon any lands within the prescribed limits, or, if no limits be prescribed, not being more than two hundred yards distant from the centre of the railway as delineated on the plans, and not being a garden, orchard, or plantation attached or belonging to a house, nor a park, planted walk, avenue, or ground oruamentally planted, and not being nearer to the mansion house of the owner of any such lands than the prescribed distance, or if no distance be prescribed, then not nearer than five hundred yards therefrom, and to occupy the said lands so long as may be necessary for the construction or repair of that portion of the railway, or of the accommodation works connected therewith, herein-after mentioned, and to use the same for any of the following purposes ; (that is to say,) For the purpose of taking earth or soil by side cuttings therefrom ; For the purpose of depositing spoil thereon ; For the purpose of obtaining materials therefrom for the construction or repair of the railway or such accommo- dation works as aforesaid ; or For the purpose of forming roads thereon to or from or by the side of the railway : And in exercise of the powers aforesaid it shall be law^ful for the company to deposit and also to manufacture and work upon such lands materials of every kind used in con- structing the railway, and also to dig and take from out of any such lands any clay, stone, gravel, sand, or other things that may be found therein useful or proper for con- structing the railway or any such roads as aforesaid, and for the purposes aforesaid to erect thereon workshojjs, sheds, and other buildings of a temporary nature : Provided always, that nothing in this Act contained shall exempt the company from an action for nuisance or other injury, if any done, in the exercise of the powers hcrein-before given, to the lands or habitations of any party other than the party whose lands shall be so taken or used for any of the purposes aforesaid : Provided also, that no stone or Tlic BaUu'aijs Clauses Consolidation Act, 1845. 379 slate quarry, brick field, or other like place, which at the sect. 32. time of the passing of the Special Act shall be commonly worked or used for getting materials therefrom for the pur- pose of selling or disposing of the same, shall be taken or used by the company, either wholly or in part, for any of the purposes lastly herein-before mentioned. ARTICLE 1.— This section does not give authority to take temporary Se^^t. 3-_> / hridf/p^. the Special Act) either such road shall be carried over the cro.«singof railway, or the railway shall be carried over such road, by ^''^''^^=^- means of a bridge, of the lieio-ht and width and with the ascent or descent by this or the Special Act in that behalf provided ; and such bridge, with the immediate approaches, and all other necessary works connected therewith, shall be executed and at all times thereafter maintained at the expense of the company : Provided always, that, with the consent of two or more justices in petty sessions, as after mentioned, it shall be lawful for the company to carry the railway across any highway, other than a public carriage road, on the level. ARTICLE 1.— Where a special Act, whicli incorporates the Rail- Where special ways Clauses Act, 1845, enables a railway company to carry a railway '^j^Q^^f^'^ f^j. across a road on a level, the company may, nevertheless, raise the crossing mail road and carry it over the railway by means of a bridge. !?Lf,l^J^'L *' J J o company may So held in Warden uf Dover \. London, Cliatluun, and Dover build bridge . •Ill- o^'er raihviiy Railway Company (c), where the special Act provided that it instead. should be lawful for the company in constructing the railway to carry the same on a level across the road, provided that the com- pany should erect and maintain a foot-bridge at or near the level crossing. ARTICLE 2.— Section 46 does not impose upon a raUway company, Rridge over whose line crosses a public footpath, the obligation of carrying the footpath. footpath over the railway, or the railway over the footpath, by means of a bridge. This was decided by the House of Lords in Dartford Bund Council V. Bexley Heath Bailivay Company {d). (c) (1861), 30 L. J. Ch. 474 ; 3 D. F. & J. 559. {d) [1898], A. C. 210; 67 L. J. Q. B. 231 ; 77 L. T. 601 ; 46 W. E. 235; 62 J. P. 227. L.c. 25 886 Code of the Law of Co7npensatio7i. Sect. 46. ARTICLE 3. — A mandamus will not be granted to compel a railway company to carry the road over the railway, or the railway over the compel com- road, unless it can be shown that it is impossible for the company to pany to cany exercise their option. road over rail- way or rail- This was decided by the House of Lords in Reg. v. South- road. Eastern Railway ComjJany (e). As sect. 46 gives the company an option either to carry the road over the railway or the railway over the road, a mandamus to command the company to do one of these things is defective, unless it shows on the face of it circum- stances which establish the impossibility of the company exercising this option. Keiiair of ARTICLE 4. — Where a railway company carries a highway over roadway en the railway by a bridge, the company are bound to keep in repair ^^''"^' the roadway on the bridge and the approaches thereto. So held in North Staffordshire Railicay Company v. Dale (/), followed by the Court of Exchequer in Trustees of Newcastle Roads V. North Staffordshire Railway Company (g), and approved by the House of Lords in Lancashire and Yorkshire Railway Company v. Bury (h). wiieie rail- ARTICLE 5. — Where a railway is carried over a highway by means way IS carried q£ q^ bridge, the railway company is not liable to keep in repair the company not' road ou either side of the bridge. pair road on So held in London and North- Western Railway Company v. either side of Skerton Township (i), in which Blackburn, J., followed two L'isli bridge. . . cases, Waterford and Limerick Railway Company v. Kearney (k), and Fosherry v. Waterford and Limerick Railway Company (/). This decision was given where the railway company had lowered the level of the old highway in making the approaches under the bridge. Where no con- ARTICLE 6. — Where there is no constructional necessity for the necessity for approaches within sect. 16, a railway company cannot be compelled road, the com- to maintain them under this section. pany not bound to A railway company, empowered to carry an old road across their line on a level, built a bridge across their line at a spot where no highway had originally been, and 347 yards from where the line (e) (1853), 4 H. L. C. 471 ; 17 Jur. 931. (/) (1858), 27 L. J. M. C. 147 ; 8 E. & B. 836 ; 4 Jur. N. S. 631. iy) (1860), 5 H. & N. 160 ; 29 L. J. M. C. 150 ; 8 W. E. 216. {h) (1889), 14 A. C. 417 ; 59 L. J. Q. B. 85 ; 61 L. T. 417 ; 36 W. R. 491 ; 54 J. r. 197. (0 (1864), 33 L. J. M. C. 158; 5 B. & S. 559; 10 L. T. 648; 12 W. E. 1102. See also judgment of Lord Ilerschell in Lancashire and Yorkshire Railway Company v. Bnni (1889), 14 A. C. 417, 421. {k) (1860), 12"lr. C. L. 224. (0 (1862), 13 Jr. C. L. 494. maintain it. The Baihvays Clauses Consolidation Act, 1845. 387 crossed the road. The company made approaches to the bridge Sect. 46. upon land given by the owners, connecting it with the roads lying on either side of the line. The traflic which formerly passed over the old road passed over the bridge and its approaches. The Court of Appeal held that as there was no evidence of any constructional necessity, which alone would justify a diversion of the old road under sect. 16, the bridge and its approaches had not been made under sect. 46, and that therefore the railway companj' were not bound to maintain them (m). In a Scotch case (n) it has been held that a railway company is Substitute! not liable to maintain and keep in repair substituted roads. loads. 47. If the railway cross any turnpike road or public sect. 47. carriage road on a level, the company shall erect and at all Piovi^ in times maintain good and sufiicient gates across such road, cases where on each side of the railway where the same shall communi- crossed^on a cate therewith, and shall employ proper persons to open ^"^^e^- and shut such gates ; and such gates shall l)e kept constantly closed across such road on both sides of the railway, except during the time when horses, cattle, carts, or carriages pass- ing along the same shall have to cross such railway ; and such gates shall be of such dimensions and so constructed as when closed to fence in the railway, and prevent cattle or horses passing along the road from entering upon the railway ; and the person intrusted with the care of such gates shall cause the same to be closed as soon as such horses, cattle, carts, or carriages shall have passed through the same, under a penalty of forty shillings for every default therein : Provided always, that it shall be lawful for the Board of Trade, in any case in which they are satisfied that it will be more conducive to the public safety that the gates on any level crossing over any such road should be kept closed across the railway, to order that such gates shall be kept so closed, instead of across the road, and in such case such gates shall be kept constantly closed across the rail u' ay, except when engines or carriages passing along the railway shall have occasion to cross such road, in the same manner and under the like penalty as above directed with respect to the gates being kept closed across the road. By the Railways Clauses Act, 1863, s. 7 (o), the Board of Trade lias power to require a bridge to be made in place of a level crossing. (m) London anrl NortJi-Wcstern Railwuij Coinpanij y, 0(jwen District L'ouncil (1899), 80 L. T. 401 ; 63 J. P. 295. {n) Perth Mi ConsoUdatioit Act, IB'IS. 895 or in the Special Act fixed for that purpose, the company sect. 57. shall forfeit to the trustees, commissioners, surveyor, or other person having the management of the road interfered with by the company, if a public road, or if a private road to the owner thereof, five pounds for every day after the expiration of such periods respectively during which such road shall not be so restored or the substituted road com- pleted ; and it shall be lawful for the justices by whom any such penalty is imposed to order the whole or any part thereof to be laid out in executing the work in respect whereof such penalty was incurred. ARTICLE 1. — To entitle a person to proceed for penalties under i-eisons who sect. 57 he must be clothed with some duty in respect of the public fJJJ'p^enaities. ejusdem generis with that of trustees, commissioners, or surveyor. Where, therefore, an owner who has dedicated a road to the public afterwards repairs it at his own expense, he is not entitled to proceed against a company, who had cut through the road, for penalties for not restoring it, as the acts of repair are purely voluntary, and do not constitute him a manager (A). 58. If in the course of making the railway the company Sect. 58. shall use or interfere with any road they shall from time to comimi^ to time make good all damagje done by them to such road ; repair roads and if any question shall arise as to the damage done to any such road by the company, or as to the repair thereof by them, such question sljall be referred to the determina- tion of two justices ; and such justices may direct such repairs to be made in the state of such road, in respect of the damage done by the company, and within such period as they think reasonable, and may impose on the company, for not carrying into effect such repairs, any penalty not exceeding five pounds per day as to such justices shall seem just ; and such penalty shall be paid to the surveyor or other person having the management of the road inter- fered with by the company, if a public road, and be applied for the purposes of such road, or if a private road the same shall be paid to the owner thereof : Provided always, that in determining any such question with regard to a turnpike road the said justices shall have regard to and shall make full allowance for any tolls that may have been paid by the company on such road in the course of the using thereof. ARTICLE 1. — The word "use" in sect. 58 means "user by traffic," Meaning of "use."' (k) Bee/. V. Wilson (1852), 18 Q. B. 348; 21 L. J. Q. B. 281 ; 16 Jur. 973. 396 Code of the Law of Compensation. Sect. 58. Order of justices must state length of road to be repaired. Sect. 59. Proceedings on application to justices to consent to level crossings of bridleways and footwaj's Sect. 60. Appeal against the determination of the justices. to such an extent as would render the repairs more than ordinarily burdensome. This was the interpretation put upon the word " use " by Black- burn, J., in West Riding and Griinshi/ Ilailicajj Conpany v. Walcefidd Local Board {I). There the company used certain roads for the carriage of stone, bricks, timber, and other materials to be used in the making of the railway and works. It was held that the company were liable to make good the damage, although the materials were really conveyed in the carts of the contractors, or sub-contractors, or other persons employed by them. ARTICLE 2. — An order of justices directing a railway company to repair' damage done by them to a road need not specify the particulars of damage done, if it states the length of the road injui-ed, and directs the damage done to that portion to be made good. So held in Lo)idon and Xoiili-JVestoii Railwaij Company v. Wetherall (m). 59. AVheii the company shall intend to apply for the consent of two justices, as lierein-before provided, so as to authorise them to carry the railway across any highway other than a public carriage road on the level, they shall, fourteen days at least previous to the holding of the petty sessions at which such application is intended to be made, cause notice of such intended application to be given in some newspaper circulating in the county, and also to be athxed u[)on the door of the parish church of the parish in which such crossing is intended to be made, or if there be no such church some other place to which notices are usually attixed ; and if it appear to any two or more justices acting for the district in which such highway at the proposed crossing thereof is situate, and assembled in petty sessions, after such notice as aforesaid, that the railway can, consistently ^vith a due regard to the public safety and convenience, be carried across such highway on the level, it shall be lawful for such justices to consent that the same may be so carried accordingly. 60. If either party shall feel aggrieved by the deter- minatioji of such justices upon any such application as aforesaid, it shall be lawful for such party, in like manner and subject to the like conditions as are herein-after pro- vided in the case of appeals in respect of penalties and (0 (1864), 33 L. J. M. C. 174; 5 B. & S. 478 ; 12 W. R. 1076; 10 Jur. N. S. 104G. (m) (1851), 20 L. J. Q. B. 337 ; 15 Jur. 247. ta crossing on the level. The Eaihccujs Clauses Consolidation Act, 1845. 397 forfeitures, to appeal to tlie quarter sessions of the county sect. 60. or place in which the cause of appeal shall have arisen ; and it shall be lawful for the justices in such quarter sessions, upon the hearing of such appeal, either to confirm or quash the determination, or to make such other order in regard to the method of carrying the railway across such hio-hway as aforesaid, as to them shall seem fit, and to make such order concerning the costs both of the original application and of the appeal as to them shall seem reasonable. 61. If the railway shall cross any highway other than a sect. 6i. public carriageway on the level, the company shall at their comi^to own expense make and at all times maintain convenient ™ake T 1 11 • , 1 -i.! sufficient ascents and descents and other convenient approaches, witli approaches handrails or other fences, and shall, if such hio-hway be a and fences cj •/ Drini6wn.vs bridleway, erect and at all times maintain good and sufti- and footways cient gates, and if the same shall be a footway, good and suflicient gates or stiles, on each side of the railway where the highway shall communicate therewith. 62. If, where the railway shall cross any highway on the sect^2. level, the company fail to make convenient ascents and justices to descents or other convenient approaches, and such hand- ol^JeV^ip^^" '^ rails, fence, gates, and stiles as they are herein-before pioachesand required to make, it shall be lawful for two justices, on J^^adfto^'h^gh- the application of the surveyor of roads, or of any two ways crossing householders within the parish or district where such cross- ing shall be situate, after not less than ten days' notice to the company, to order the company to make such ascent and descent or other approach, or such handrails, fences, gates, or stiles as aforesaid, within a period to be limited for that purpose by such justices; and if the company fail to comply with such order they shall forfeit five pounds for every day that they fail so to do ; and it shall be lawful for the justices by whom any such penalty is imposed to order the whole or any part thereof to be applied, in such manner and by such person as they think fit, in executing the work in respect whereof such penalty was incurred. ARTICLE 1.— Justices have no power under sect. 62 to order the Justices have erection by a railway company of fences and handi-ails at a level ^^.^jP . erection crossing on a public highway which is also a carriage road. of fences, kc, So hekl in Fn'f/. v. Schofield{n), on the ground that the pro- ingon carriage road.. {!,) (1893), 69 L. T. 313; 5 E. 575 ; 58 J. P. 132. 398 Code of the Law of Compensation. Sect. 62. ceedings were taken under sect. 61, and that section only applies to a " highway other than a puhhc carriageway." Sect. 63. 63. If tlie commissioners or trustees of any turnpike ScreeTfor I'oacl, or the surveyor of any highway, apprehend clanger roads to be to tlic passengers on such road in consequence of horses quired \rthe being frightened by the sight of the engines or carriages Board of travelling upon the railway, it shall be lawful for such com- missioners, or trustees, or surveyor, after giving fourteen days' notice to the company, to apply to the Board of Trade with respect thereto ; and if it shall appear to the said Board that such danger might be obviated or lessened by the construction of any works in the nature of a screen near to or adjoining the side of such road, it shall be lawful for them, if they shall think fit, to certify the works neces- sary or proper to be executed by the company for the purpose of obviatiuo; or lessenino; such danaer, and by such certifi- cate to require the company to execute such works withni a certain time after the service of such certificate, to be appointed l)y the said Board, Sect. 64. 64. AVhere by any such certificate as aforesaid the com- -— ^, P'T-iiy shall have been required to execute any such work in failing to the uaturc of a screen, they shall execute and complete the construct. same within the period appointed for that purpose in such certificate ; and if they fail so to do they shall forfeit to the said commissioners, or trustees, or surveyor, five pounds for every day during which such works shall remain uncom- pleted beyond the period so appointed for their completion ; and it shall be lawful for the justices by whom any such penalty is imposed to order the whole or any part thereof to be laid out in executing the work in respect whereof such penalty was incurred. Sect. 65. QQ Where, under the provisions of this or the Special Justice Act, or any Act incorporated therewith, the company are h'^ye i.ower to required to maintain or keep in repair any bridge, fence, bridge&?&c.^ approach, gate, or other work executed by them, it shall be lawful for two justices, on the application of the surveyor of roads, or of any two householders of the parish or dis- trict where such work may be situate, complaining that any such work is out of repair, after not less than ten days' notice to the company, to order the company to put such work into complete repair within a period to be limited for that purpose by such justices ; and if the company fail to comply with such order they shall forfeit five pounds for The Bailways Clauses Consolidation Act, 1845. 399 every clay tliat they fail so to do ; and it shall be lawful Sect. 65. for the justices by whom any such penalty is imposed to order the whole or any part thereof to be applied, in such manner and by such persons as they think fit, in putting such work into repair. ARTICLE 1.— Section 65 is incorporated in a special Act which where special incorporates "so much of the Railways Clauses Consolidation Act, j^^^terso 1845, as relates to the mode of crossing roads and construction of much of itail- ,, waj's Clauses bridges. Consolidation So held in Bristol and Exeter Raihvay Company v. Tucker (o). ^^^j^^'^^^^^J^' '''^ ARTICLE 2.— Where a special Act provides that the trustees under Jli'J roadsami the Tiu-npike Acts may require the company to repair, sect. 65 is construction only applicable when the Tui-npike Acts have expired. where sect 6-> In London, Chatham, and Dover Eailtcaij Company v. Wands- ismodiriedby . special Act. worth Board of Works (p) the trustees under the turnpike Acts were, by the special Act, to give notice to the company to repair, and if the company failed to begin the repairs within three days after notice, the trustees were empowered to make good the same, and the company were to be liable for the cost. A magistrate made an order under sect. 65 requiring the company to put a bridge into complete repair within two months. It was held that the order was vahd, inasmuch as the Turnpike Acts, under which the trustees acted, had expired, and the provisions of the general Act thereupon revived. 66. [And irliereas expense might frequcnthi he avoided, sect. 66. and iniblic convenience promoted, hij a reference to the Board of g^^^^.^f^ Trade upon the construction of public works of an engineerinij Trade em- nature connected with the railwaij, where a strict compliance i^Sythe with the provisions of this or the Special Act might he impos- constn;ctiou sihle, or attended with inconvenience to the company, and witliout "oa*Jfs. bridges, adequate advantage to the public : he it enacted, that] in case i^Cy where a any difference in regard to the construction, alteration, or pHance with restoration of any road or bridsfe, or other public work of the Act is *^ -ii 1 *■ i?xl' lIlipOSSlDl(3 01 an engineermg nature, required by the provisions oi tins or inconvenient. the Special Act, shall arise between the company and any trustees, commissioners, surveyors, or other persons having the control of or being authorised by law to enforce the construction of such road, bridge, or work, it shall be lawful for either party, after giving fourteen days' notice in writing of their intention so to do to the other party, to (o) (1862), 13 C. B. N. S. 207; 7 L. T. 464. (j>) (1873), L. K. 8 C. P. 185 ; 42 L. J. M. C. 70. 400 Code of the Law of Conipcnsation. Sect. 66. apply to the Board of Trade to decide upon the proper manner of constructing, altering, or restoring such road, bridge, or other Avork ; and it shall be lawful for the Board of Trade, if they shall think fit, to decide the same accord- ingly, and to authorise, by certificate in writing, any arrange- ment or mode of construction in regard to any such road, bridge, or other work which shall appear to them either to be in substantial compliance with the provisions of this and the Special Act, or to l)e calculated to aff"ord equal or greater accommodation to the public using such road, bridge, or other work ; and after any such certificate shall have been given by the Board of Trade, the road, bridge, or other work therein mentioned shall be constructed by the company in conformity with the terms of such certificate, and being so constructed shall be deemed to be constructed in con- formity with the provisions of this and the Special Act : Provided always, that no such certificate shall be granted by the Board of Trade unless they shall be satisfied that existing private rights or interests will not be injuriously aftected thereby. Sect. 67, 67. And be it enacted, that all regulations, certificates, Auth^ca- notices, and other documents in writing purporting to be tioii of certi- made or issued by or by the authority of the Board of Wdof *^''' Trade, and signed by some officer appointed for that pur- Trade, service p^gg \^j tlie Board of Trade, shall, for the purposes of this o notices, kc. ^^^ ^^^^ Special Act, and any Act incorporated therewith, be deemed to have been so made and issued, and that with- out proof of the authority of the person signing the same, or of the signature thereto, which matters shall be presumed until the contrary be proved ; and service of any such docu- ment, by leaving the same at one of the principal ofiices of the railway company, or by sending the same by post addressed to the secretary at such office, shall be deemed good service upon the company ; and all notices and other documents required by this or the Special Act to be given to or laid before the Board of Trade shall be delivered at, or sent by post addressed to, the Oftice of the Board of Trade in London. Sect. 68. And with respect to works for the accommodation of WorhTnu' lands adjoining the railway, be it enacted as follows : ji rot ret 1(1 II (I lid n • r ,iccowiii,uiii- 68. The company shall make and at all tunes thereaiter tionoriiuuis. jjj.^jj^^^^-j^ ^jjg following works for the accommodation of the The Bailways Clauses Consolidation Act, 1845. 401 owners and occupiers of lauds adjoining the railway; (that sect. 68. is to say,) Such and so many convenient gates, bridges, arches, cul- Gates.bridges, verts, and passages over, unclei', or by the sides of or '^°* leading to or from the railway as shall be necessary for the purpose of making good any interruptions caused by the railway to the use of the lands through which the railway shall be made ; and such works shall be made forthwith after the part of the railway passing- over such lands shall have been laid out or formed, or durins: the formation thereof : Also sufficient posts, rails, hedges, ditches, mounds, or Fences : other fences for separating the land taken for the use of the railway from the adjoining lands not taken, and protecting such lands from trespass, or the cattle of the owners or occupiers thereof from straying thereout, by reason of the railway, together with all necessary gates made to open towards such adjoining lands, and not towards the railway, and all necessary stiles ; and such posts, rails, and other fences shall be made forthwith after the taking of any such lauds, if the owners thereof shall so require, and the said other works as soon as conveniently may be : Also all necessary arches, tunnels, culverts, drains, or Dial us : other passages, either over or under or by the sides of the railway, of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the making of the railway, or as nearly so as may be ; and such works shall be made from time to time as the railway works proceed : Also proper watering places for cattle where by reason of watering the railway the cattle of any person occupying any i'-'^*^^^- lands lying near thereto shall be deprived of access to their former watering places ; and such watering- places shall be so made as to be at all times as suffi- ciently supplied ^\ith water as theretofore, and as if the railway had not been made, or as nearly so as may be ; and the company shall make all necessary watercourses and drains for the purpose of conveying water to the said watering places : Provided always, that the company shall not be required to make such accommodation works in such a manner as would prevent or obstruct the working or using of the railway, nor to make any accommodation works with respect to which L.c. 26 402 Code of the Law of Compensation. Works made for the accom- modation of owners. Severance of ownership after accom- modation works. Sect. 68. the owners and occupiers of the lands shall have agreed to receive and shall have been paid compensation instead of the makino; them. ARTICLE 1. — Whether works made by the company are works made for the accommodation of owners is a question to be determined by the state of things at the time such works are made. So held in Reg. v. Fisher (q). A railway company provided a level crossing as a means of com- munication between two portions of the land of an owner which bad been severed by the railway. The owner subsequently con- veyed the two portions of land to A. and B. respectively. A. afterwards released to the company his right to use the crossing. The company put up fences obstructing the crossing and B. pulled them down. It was held that the company was entitled to an injunction to restrain B. from interfering with the fences, and that the right to the crossing was finally abandoned by the conveyance to A., and would not be revived if the lands on the two sides of the railway should again become vested in the same person (r). Where a railway company were obliged to make a level crossing to provide access to pasture lands, and the land was subsequently built upon, it was held that the owners of the houses were entitled to use the level crossings, but not so as to prevent the company from using the railway for the reasonable working of their traffic (s). ARTICLE 2.— The word "necessary" in sect. 68 refers to the obligation to make good the interruption, and does not confine the company to any particular mode of doing the works. Where there are several modes of doing the works, the company, acting under the advice of their engineer, are the sole judges which mode should be adopted ; but the Court Avill interfere if they do not act bona fide (t). Sects. G8 ARTICLE 3.— Sections 68 and 69 do not apply to matters occurring and 69 do not beneath the surface of the land. apply to matters be- j^ j^^f, V. Flshev (u) the company had made drains upon their neath the -^ ^ "^ surface. (v) (1862), 32 L. J. M. C. 12; 3 B. & S. 191. (?•) Midland liailvxiy Company v. Oribble [1895], 2 Cli. 827 ; G4 L. J. Ch. 826 ; 73 L. T. 270 ; 44 W. E. 133 ; 12 R. 513. (.s) United Land Company v. Gnat Eadcrn, Iiaihrai/ Company (1875), L. E. 10 Ch. App. 586; 44 L. J. Ch. 685; 33 L. T. 292; 23 W. E. 896 ; Finch v. Great Western Railway Comparn/ {1819), 5 Ex. D. 254; 41 L. T. 731; 28 W. E. 229; 44 J. P. 8 ; Great Northern Hail way Company v. M'Alister [1897], 1 Ir. E. 587 ; Great Western llailway ComjKiny v. Talbot [1902], 2 Ch. 759 ; 71 L. J. Ch. 835 ; 87 L. T. 405. (<) Wilkinson V. Hall, c&c. Railway and Dock Company (1882), 20 Ch. D. 323 ; 51 L. J. Ch. 788; 46 L. T. 455 '; 30 W. E. 617. («) (1862), 32 L. J. M. C. 12; 3 B. & S. 191. Level crossing made to pasture land subsequently built over. Meaning of " necessary " in sect. 68. The EaUways Clauses Consolidation Act, 1845. 403 line for their own purposes, and before the mines beneath the sur- Sect. 68. face had been worked. When the mines were worked the drains became stopped up, and the water percolated through the strata into the mines. It was held that the drains were not such accommodation works as tlie justices had jurisdiction over. If damage is caused to the mines by the percolation of water, iiemedy by the remed}^ is by action (.r). action. ARTICLE 4. — Where a railway company has, as part of the con- Agreement to sideration for the purchase of land, agreed to make and maintain jation works certain accommodation works, and by a subsequent Act the under- —transfer of taking is transferred to another railway company "subject to the tonew^con> obligations and liabilities" of the old company, the landowner can pany— maintain an action for specific performance against the new company, formance^^ So held in Fortcsciic v. LosticitJtid and Foicey raiihcay Com- 2)Ciny (y). In this case, in decreeing specific performance, the Court followed Greene v. West Cheshire Ilaihcay Company {z). ARTICLE 5. — Where a railway company construct land drains to La^tl drains carry off the surface water from lands adjoining a railway, and such way ^company di'ains are used to convey sewage from certain houses, such di'ains are used to con- sewers within the meaning of the Public Health Act, 1875, but do not f ^^n hOTses— vest in the local authority because they come within the second excep- I'ubiic Health tion in sect. 13 of that Act. Tih!^'''''' So held in Lond(>>i and Nortli-Western Baihcay Company v. Runcorn llnral Comieil (a). The second exception in sect. 13 of the Public Health Act, 1875, applies to " sewers made and used for the purpose of draining, preserving, or improving land under any local or private Act of Parliament," and by the Act these sewers do not vest in, or come under the control of, the local authority. ARTICLE 6. — When compensation for severance of agricultural Compensation land is being assessed the power of justices to order accommodation J^ia^nj^^^^h^ ■works should not be taken into account where the land has a greater greater pro- prospective value for building purposes. spectiveva ae. So held in Beg. v. Broiun (b), on the ground that if the justices had ordered accommodation w^orks according to the present exigencies of the land, the expense would have been altogether useless ; as {cr) BagnaU v. London and North-Western Railway Conipainj (1862), 31 L. J. Ex. 121, 480 ; 7 H. & N. 423. [y) [1894], 3 Cb. 621 ; 64 L. J. Ch. 37; 71 L. T. 423; 43 W. E. 138; 8 R. 664. (z) (1871), L. E. 13 Eq. 44 ; 41 L. J. Ch. 17 ; 2o L. T. 409 ; 20 W. E. 54. («) [1898], 1 Ch. 561 ; 67 L. J. Ch. 324; 78 L. T. 343; 46 W. E. 484; 62 J. P. 643. {h) (1867), L. E. 2 Q. B. 630; 36 L. J. Q. B. 322; 16 L. T. 827; 15 W. E. 988 ; 8 B. & S. 456. 26—2 404 Code of the Lmv of Com])ensation. Sect. 68. Obligation to make fences not affected by the limita- tion of time contained in sect. 73. Cattle stray- ing upon highway. Highway is " adjoining land." what the justices could have ordered as proper accommodation for agricultural purposes would have been useless as a mode of access to houses. ARTICLE 7. — The obligation on a railway company to make and maintain fences is absolute, and is not affected by the limitation of time contained in sect. 73. Therefore a railway company are responsible to the occupier of adjoining land for injury to his cattle arising from their neglect to erect fences, although none were made within five years of the opening of the railway for public use (c). ARTICLE 8. — Where a railway adjoins a highway the company is not bound to fence against cattle straying upon the highway, and not merely passing and repassing along it. This was decided in Luscomhe v. Great Western Eaihraij Com- ixiny {(l). Cattle belonging to a farmer were allowed to graze in a wood adjoining his farm ; through the wood ran a highway, the property in the soil of which was in the owner of the wood. The cattle got upon the highway and left it at a point adjacent to the land of the railway. They got on to the line along an unfenced approach and were killed by a passing train. The company were held not liable. Referring to the case of Mancliester, Slieffi.cld, and Lincolnshire Eailway v. Wcdlis (e), Channell, J., said: " The Court seems to have come to the conclusion — I do not know that they decided it, because their judgment was in favour of the rail- way company — that the cattle of persons who were lawfully using the highway for the purpose of passing or repassing might be con- sidered to be the cattle of the owners and occupiers of the adjoining land within the meaning of the section. That seems rather to strain the natural meaning of the words ' owners and occupiers ' of the adjoining land, and the Court so held, as I gather from its judgment, because, unless that interpretation were put upon the words, there was no provision in the Acts for the case of a highway adjoining the railway ; they were bound, therefore, to put a sensible construction upon the section when the adjoining land was in fact a highway, and the meaning they put upon it was that in that case cattle, which were lawfully using the highway for {(■) Dixon v. Great Western Ruilivay Company [1897], 1 Q. B. 300 ; 66 L. J. Q. B. 132 ; 75 L. T. 539; 45 W. E. 226. {(I) [1899], 2 Q.B. 313; 68 L. J. Q. B. 711 ; Si L. T. 183. (e) (1854), 23 L. J. C. P. 85 ; 14 C. B. 243 ; 7 E. C. 709 ; 18 Jur. 268. See also Itickttts v. East and West India Docks and BirmiiKjhain llaihuaij Compani/ (1852), 21 L. J. C. P. 201 ; 12 C. B. 160; 7 E. C. 295; 16 Jur. 1072; Midland nailway Comjwny v. Daykin (1855), 17 C. B. 126; 25 L. J. C, P. 73; 4 W. E. 16; Roherts v. Great Western Jlaihray t'omiiany (1858), 4 C. B. N. S. 506; 27 L. J. C. P. 266 ; 4 Jur. N. S. 1240. The Uaihcaiis Clauses Consolidation Act, 1845. 405 the purpose of passing and repassing, were to be considered as Sect. 68. cattle of tlie owners and occupiers of the adjoining land within the meaning of the section. If that is the meaning to be put upon the section it excludes the view that the cattle which happen to belong to, or to be licensed by, the owner of the soil over which the highway runs, could be considered to be cattle of the owners and occupiers within the meaning of that section." In Dan-son v. Midland nailway Companij (/) the plaintiff hired of the occupier of some land adjoining the defendant's line a stable for his horse. The horse Avas allowed to graze durmg the day on the land. One night it escaped from the stable on to the land and thence through a defective fence on to the defendants' line, where it was run over and killed by a train. It was held that the defendants were liable. ARTICLE 9. — A railway company is "bound to erect and maintain Liability of a fence for the benefit of the occupier of land, although they may have p^^ny'lo erSt paid compensation to the landowner in lieu of the right to have his fencing for land fenced from the railway. occupier. So held in Carry v. Great Western Railway Company {g), where Bramwell, L.J., said : " The plaintiff was an occupier with a right to have a fence between his land and that of the railway company, and his tenancy and his right under it to have such fence have continued, as it seems to me, to the present time. It is conceded that if he had a lease, say for fifty years, though determinable at six months' notice, he would have had this right. He had not such lease, but was tenant only from year to year, determinable at six months' notice. But still the tenancy is the same, and his right against the landlord is the same. His landlord cannot be taken to have given up any right which the plaintiff had as his tenant, and I think there would be a hardship upon the plaintiff' if it were otherwise, because he, the plaintiff, was no party to the agreement by which his landlord gave up the right to fencing." ARTICLE 10.— The fences erected under sect. 68 must be so main- Fencing mu.-t tained that horses and cattle cannot get through them. ^^ prevent In BessantY. Great Western Railway ComjKUiy {It) sheep got ^attk! ° through a hole in the hedge. It was held that such a hedge was an insufficient fence and that the company were liable. (/) (1872), L. E. 8 Ex. 8 ; 42 L. J. Ex. 49 ; 21 W. E. 56. iy) (1881), 7 Q. B. D. 322; 50 L. J. Q. B. 386 ; 44 L. T. 701 ; 29 W. E. 623 ; 45 J. P. 712. See also %() [1897], 2 Ch. 131 ; (Hi L. J. Cb. 570; 76 L. T. 694. 408 Code of the Law of Compensation. Sect. 72. under the superinten- dence of the company's engineer. specifications to be submitted to and approved by such engineer ; nevertheless the company shall not be entitled to require, either that plans should be adopted which would involve a greater expense than that incurred in the execution of similar works by the company, or that the plans selected should be executed in a more expensive manner than that adopted in similar cases by the company. Sect. 73. Accommoila- tion works not to be required after five years. OwTier has no remedy at ex- piration of five years. 73. The company shall not be compelled to make any further or additional accommodation works for the use of owners and occupiers of land adjoining the railway after the expiration of the prescribed period, or, if no period be prescribed, after five years from the completion of the works, and the opening of the railway for public use. ARTICLE 1. — Where no complaint is made by a landowner of the insufficiency of accommodation works, and no application is made to justices for additional accommodation works within five years, the owner has no remedy at the expiration of that period. So held in Colley v. London and North-Western Railway Company (q). allowed to cross until accommoda- tion works are made. Sect. 74. 74. Until the company shall have made the bridges or Owners to be otlicr proper Communications which they shall under the provisions herein, or in the special Act, or any Act incor- porated therewith, contained, have been required to make between lands intersected by the railway, aud. no longer, the owners and occupiers of such lands, and any other persons whose right of way shall be affected by the want of such communication, and their respective servants, may at all times freely pass and repass, with carriages, horses and other animals, directly (but not otherwise) across the part of the railway made in or through their respective lands, solely for the purpose of occupying the same lands, or for the exercise of such right of way, and so as not to obstruct the passage along the railway, or to damage the same ; nevertheless, if the owner or occupier of any such lands have in his arrangements with the company received or agreed to receive compensation for or on account of any such communications, instead of the same being formed, such owner or occupier, or those claiming under him, shall not be entitled so to cross tlie railway. (7) (1880), 5 Ex. D. 277; 49 L. J. Ex. 575; 42 L. T. S07 ; followed in Jlyany. Great Southern ani District liailwan Com- pany {r). (o) (1877), 3 A. C. 165 ; 47 L. J. Ch. 97 ; .-37 L. T. G4.j ; 2(3 W. E. i;50. []>) Midland Eailwai/ Comj>aiti/ v. Ruhinson (1889j, 15 A. C. 19; 59 L. J. Ch. 44 ; 62 L. T. 194; 38 W. R. 577. ('/) [1895], 1 Q. B. 459 ; 72 L. T. 142 ; 43 W. E. 374 ; 64 L. J. Q. B. 260; 14 E. 201. (r) (1881 ), 19 Ch. D. 559 ; 51 L. J. Ch. .305 ; 46 L. T. 443 ; .30 W. E. 663 ; / Canal Compani/ v. Graz<'hrook {IH'60), 1 B. & Ad. 59; Hollidaii v. Mai/or of Wakefield [1891], A. C. 81 ; 60 L. J. Q. B. 361 ; 64 L. T. 1 ; 40 ^Y. R. 129. The Fiaihvays Clauses Consolidation Act, 18-15. 417 shall be fortliwith repaired or removed, as the case may S-^t. 79. require, and such damage made good, by the owner, lessee, or occupier of such mines or minerals, and at his own expense ; and if such repair or removal be not forthwith done, or, if the company shall so think fit, without waiting for the same to be done by such owner, lessee, or occupier, it shall be lawful for the company to execute the same, and recover from such owner, lessee, or occupier the expense occasioned thereby, by action in any of the Superior Courts. ARTICLE 1. — A railway company may s^ive a counter-notice under Railway corn- sects. 78 and 79 at any time after an owner has commenced working ElVTcounter- the mines or minerals by offering to pay compensation for the minerals notice at any they desire left standing. '™ ' So held in Dixon v. Caledonian Eailway Company (x), over- ruling the dictum of Earl Cairns, L.C., in Smith v. Great Western Raihcai/ Company iy), to the eiFect that after thirty days had expired the time had passed for the railway company to give a counter-notice. Lord Blackburn there said: "If the thirty days have elapsed without a counter-notice, the mine-owner may begin to work, and then as to such portions as he has worked, the counter-notice, if it ever comes, will come too late ; but as to such portions as he has not worked, when the counter-notice comes, if the railway company make compensation for all the damage that is sustained in consequence of leaving them unworked, there would seem to be no reason in justice why that should not be done." ARTICLE 2.— An owner of minerals may work them by open or Open or sur- surface operations, if that is the usual manner of working such mines in the district. So held in Midland Eailway Company v. Rohinson (z), and an injunction will not be granted restraining the owner from so working them. ARTICLE 3. — Where a railway company purchase land but do not Eailway corn- acquire the minerals, they cannot, under their statutory purchase, acquire knd claim the benefit of an ordinary purchaser of the surface to subjacent only do not 1 J. , , acquire a and adjacent support. ^igj^t ^j ^^^p. If a railway company require support for the land taken, they I"^"^- (x) (1880), 5 A. C. 19; 4.'3 L. T. 513 ; 29 W. E. 249. (y) (1877), 3 A. C. 165 ; 47 L. J. Ch. 97 ; 37 L. T. 645; 26 W. E. 130. (z) (1889), 15 A. C. 19 ; 59 L. J. Ch. 44 ; 62 L. T. 194 ; 38 W. E. 577. See also Midland Builicai/ Compcnii/ v. Haunclnvood Brick and Tile Compamj (1882), 20 Ch. D. 552; 51 L. J. Ch. 778; 47 L. T. 151; .30 W. E. 628; Midland Bailn-aij (Jompanii v. Mihs (1886), 33 Ch. D. 632; 55 L. J. Ch. 745; 55 L. T. 4S2 ; 35 W. E. 76; Buabon Brick and Terra Cotta Company v. Great Western Bailway Company [1893], 1 CL 427; 62 L. J. Ch. 483; 68 L. T. 110; 41 W. E. 418; 2 E. 237. L.c. 27 418 Code of the Law of Comimisation. Sect. 79. must pay compensation for it, the rights of the mine-owner and the company being regulated entirely by statute (a). Where com- Where the owner of land grants to a railway company the right panyonly ^^ make and maintain a tunnel through his land, he is in the &CQ Ull G clll easement. same position with respect to his right to work mines as if the company had actually purchased the land (h). Where special Many special Acts, like those of canal companies, contain exlreS^pio- express provisions dealing with mines and minerals. Cases visions deal- arising under these Acts will depend on the construction to be mines and placed upon the special words used in the different sections (c). minerals. Where land is ARTICLE 4.— Where land is sold to a railway company reservmg sold free from the minerals to the landowner, and there are no statutory provisions ?iSon°affec™ affecting the contract, the railway company will be entitled to a right ing contract, of support. This was decided in Caledonian Railicay Comimmj v. Sprat {d). In London and North-Western Railicay Company v. Evans {e) it was held that Avhere an express statutory right is given to make and maintain something requiring support, the statute, in the absence of a controlling text, must be taken to mean that the right of support shall accompany the right to make and maintain ; and that if the Act does not provide any means of obtaining compensa- tion for the loss occasioned to the landowner by his having to leave support, it is a strong argument against the Legislature having intended to give such a right. In Elliot V. North-Eastern Railicay Company (/) it was held that a conveyance granting land for a special purpose must be construed as conveying all the rights necessarily incident to the due execution of that purpose. A vendor of land, having sold it under an Act of Parliament for the purpose of a raihvay, cannot (a) Great Western Railway Company v. Bennett (1867), L. E. 2 H. L. 27; 36 L. J. a B. 133 ; 16 L. T. 186; 15 W. R. 647 ; Dudleij Canal Company v. Grazehrook (1839), 1 B. & Ad. 50 ; Fletcher v. Great Western Railivay Com- pany (1860), 29 L. J. Ex. 253 ; 5 H. & N. 689 ; 8 W. R. 501 ; 2 L. T. 803. (6) London and North-Western Railway Company v. Ackroyd (1862), 31 L. J. Ch. 588 ; 10 W. R. 367 ; 8 Jur. N. S. 911. (r) Knowh'sv. Lancashire and Yorkshire Railway Company (1889), 14 A. C. 248; 61 L. T. 91 ; Chamber Colliery Compamj v." Rochdale Canal Company [1895], A. C. 564; 64 L. J. Q. B. 645; 73 L". T. 258; 11 R. 264; Crom/ord Canal Company v. Cutis (1848), 5 R. C. 442 ; New Moss Colliery Company v. Manchester, Sheffield and Lincolnshire Railiiun/ Company [1897], 1 Ch. 725; 66 L. J. Ch. 381 ; 76 L. T. 231 ; 45 W. R. 493. {d) (1856), 2 Macq. 449 ; 4 W. R. 659 ; 2 Jur. N. S. 623. (e) [1893], 1 Ch. 16 ; 62 L. J. Ch. 1 ; 67 L. T. 630 ; 41 W. R. 149. See also In re Corporation of J)iullei/ (1881), 8 Q. B. D. 86 ; 51 L. J. Q. B. 121 ; 45 L. T. 733; 46 J. P. 340; Gonsett Waterworks Company v. Ritson (1889), 22 (I B. D. 702 ; 60 L. T. 360 ; 53 J. P. 373. (/) (1863), 10 H. L. C. 333 ; 32 L. J. Ch. 402 ; 9 Jur. N. S. 551. See also North-Eastern Rail wai/ Company v. Crossland (1863), 32 L. J. Ch. 353; 11 W. R. 83; 7 L. T. 765 ; 4 De G. F. & J. 550; 1 N. R. 72. The Bailwaijs Clauses Consolidation Act, 1845. 419 afterwards work the minerals under the surface (though they have Sect. 79. been expressly reserved to him, either by his grant, or by the provisions of the company's own Act), in such a manner as to prejudice the use of the land for the purpose for which it has been purchased. The common law right to adjacent support from the vendor's land attaches upon such a sale even beyond the limits of the purchased land. In the foregoing cases the special Acts did not incorporate the Railways Clauses Act, 1845. In Great Westem Railway Company v. Cefn Cribhwr Brick Land con- Company (g), land was in 1830 conveyed, under a special Act of ^ay^ company 1825, to a tramway company for the purpose of a horse tramway, in 1830, an.l. authorised by the Act, which reserved to the owner of the land a railway conveyed the subjacent mines with power to work them, but not so ^g^i^^^^^ '" as to injure the tramway. By a special Act of 1855 the tramway was vested in another company with power to alter the tramway into a railway of modern type. That Act incorporated the Rail- ways Clauses Consolidation Act, 1845, and repealed the Act of 1825, but without prejudice to anything done under it. Under the Act of 1855 a line of railway was laid down and worked over the laud comprised in the conveyance of 1830. In 1892 the defen- dants, the owners of the subjacent mines, gave the plaintiffs, the owners of the railway, notice under sect. 78 of the Railways Clauses Act, 1845, of their intention to work mines. The plaintiffs declined to pay any compensation, and the defendants, in working the mines, caused a subsidence of the surface and railway. It was held that the plaintiffs were entitled, under the conveyance, to a right of support from the subjacent mines without payment of compensation, and that such right had not been lost by the alteration of the old tramway into a railway ; and that the Act of 1855 did not operate to alter the express contract entered into in 1830 by the predecessors of the plaintiffs and the defendants. 80. If the working of any such mines under the railway sect. so. or works, or within the above-mentioned distance therefrom, jxinii'^om- be prevented as aforesaid by reason of apprehended injury munications. to the railway, it shall be lawful for the respective owners, lessees, and occupiers of such mines, and whose mines shall extend so as to lie on both sides of the railway, to cut and make such and so many airways, headways, gateways, or water levels through the mines, measures, or strata, the working whereof shall be so prevented, as may be requisite iy) [1894], 2 Ch. lol; 63 L. J. Ch. 500; 70 L. T. 299; 42 W. E. 493. 27—2 420 Code of the Law of Compensation. Sect. 80. Owner or lessee of mines adjoin- ing railway not entitled to right of way over rail- way. Sect. 81. Company to make com- pensation for injury done to mines. Claims under sect. 81 are settled by arbitration. to enable tliem to ventilate, drain and work their said mines, but no such airway, headway, gateway, or water level shall be of greater dimensions or section than the prescribed dimensions and sections, and where no dimensions shall be described not o-reater than eight feet wide and eig;ht feet high, nor shall the same be cut or made upon any part of the railway or works, or so as to injure the same, or to impede the passage thereon. ARTICLE 1. — The owner or lessee of mines adjoining a railway is not entitled to a right of way over the railway to work the mines. In Midland Railicay Company v. Miles {h) a railway company bought a piece of land, on part of which they made three railways, leaving the rest of the land within the triangle formed by the railways, except two small pieces on the west of their lines. The landowner from whom they bought owned the adjoining land on the east. This he afterwards sold, but acquired a right of way over it. He had also bought the two severed pieces on the west. The conveyances to the railway company did not include the minerals under the land. It was held that no right of way over the railway for the purpose of working the minerals would be implied, and that the owner had not such a right. He might, however, work the minerals by means of a passage under the railway from the land on the west, and obtain compensation under sect. 81 for extra expenses. 81. The company shall from time to time pay to the owner, lessee, or occupier of any such mines extending so as to lie on both sides of the railway all such additional expenses and losses as shall be incurred by such owner, lessee, or occupier by reason of the severance of the lands lying over such mines by the railway, or of the continuous working of such mines being interrupted as aforesaid, or by reason of the same beiii^ worked in such manner and under such restrictions as not to prejudice or injure the railway, and for any minerals not purchased by the company which cannot be obtained by reason of making and maintaining the railway ; and if any dispute or question shall arise between the company and such owner, lessee, or occupier as aforesaid, touching the amount of such losses or expenses, the same shall be settled by arbitration. ARTICLE 1. — Claims for compensation under sect. 81 are settled by arbitration, and not under the Lands Clauses Consolidation Act, 1845. So hold in 11<'ecome incapable to act, the party by whom sucli arbitrator was appointed may nominate and appoint in writing some other person to act in his place, and if for the space of seven days after notice in writing from the other party for that purpose he fail to do so the remaining or other arbitrator may proceed ex parte; and every arbitrator so to be sub- stituted as aforesaid shall have the same powers and authorities as were vested in the former arbitrator at the time of such his death or incapacity as aforesaid. 128. Where more than one arl)itrator shall have been appointed, such arbitrators shall, before they enter upon the matters referred to them, nominate and appoint by writing under their hands an umpire to decide on any such matters on which they shall differ, or which shall be referred to him under this or the Special Act ; and if such umpire shall die, or become incapable to act, they shall forthwith after such death or incapacity appoint another umpire in his place ; and the decision of every such umpire on the matters so referred to him shall be final. Sect. 129. Board of Trade em- powered to appoint an umpire, on neglect of the arbitrators. Sect. 130. In case of death of single arbitrator the matter to begin dc iioro. Sect. 131. Tf either arbi- trator refuse 129. If in either of the cases aforesaid the arbitrators shall refuse, or shall for seven days after recpiest of either party to such arbitration neglect to appoint an umpire, the P)oard of Trade shall, on the application of either i»arty to such arbitration, appoint an umpire ; and the decision of such umpire on the matters on which the arbitrators shall difi"er, or which shall be referred to him under this or the Special Act, shall l)e final. 130. If, where a single arbitrator shall have been appointed, such arl)itrator shall die, or become incapable to act, before he shall have made his award, the matters referred to him shall be determined l)y arbitration, under tlie provisions of this or the Special Act, in the same manner as if such arl)itrator had not been appointed. 131. If, where more than one arbitrator shall have been a])pointed, either of the arbitrators refuse, or for seven The Eailiraijs Chiuses Consolidation Act, 1845. 425 days neglect to act, the other arbitrator may proceed ex sect. i3i. parte, and the decision of such other arbitrator shall Ije as ^o act~th^ effectual as if he had been the single arbitrator appointed other to pro- , CCGCl cue IfU / Zr^ by l)oth parties. 132. If, where more than one arbitrator shall have been sect. 132. a[.pointed, and where neither of them shall refuse or ^ ar^ators. neo;lect to act as aforesaid, such arbitrators shall fail to fail to make make their award within twenty- one days after the day ^^.^t^in^^^^' on which the last of such arbitrators shall have been twenty-one appointed, or within such extended time, if any, as shall nmuertogo have been appointed for that purpose by both such arbi- to the umpire, trators under their hands, the matter referred to them shall be determined by the umpire to be appointed as aforesaid. 133. The said arbitrators or their umpire may call for sect. 133. the production of any documents in the possession or power po^^.gi. for ar- of either party which they or he may think necessary for J^^^^J^^^'^J'^^^j.g determining the question in dispute, and may examine the i^c. parties or their witnesses on oath, and administer the oaths necessary for that purpose. 134. Before any arbitrator or umpire shall enter into the sect. 134. con.sideration of any matters referred to him he shall, in Arbitrator the presence of a justice, make and subscribe the following ^^'^^^^^j'^j.^. declaration ; that is to say, tion. " I A.B. do solemnly and sincerely declare, that I will faithfully and honestly, and to the best of my skill and ability, hear and determine the matters referred to me, under the provisions of the Act [naming the Special Act] . A.B. " ]\Iade and subscribed in the presence of And such declaration shall be annexed to the award when made ; and if any arbitrator or umpire, having made such declaration, shall wilfully act contrary thereto, he shall be guilty of a misdemeanor. 135. Except where by this or the Special Act, or any sect^ss. Act incorporated therewith, it shall be otherwise provided, costs to be in the costs of and attending every such arbitration, to be ofthJarbUra- determined Ijy the arbitrators, shall be in the discretion of tor.s. tlie arbitrators. - * loe Sect. 136. 136. The submission to any such arljitration may be subn^onto made a rule of any of the Superior Courts, on the appli- ^'^f ^e'^^^^g cation of either of the parties. a rule of Court. 426 Code of the Lmv of Compensation. Sect. 137. 137. No award made with respect to any question The a^d referred to arbitration under the provisions of this or the not to be set Special Act shall be set aside for irreo;ularity or error in aside for j , r r n ^ matter of matter ot lorm. form. Sect. 138. Service of notices upon company. What is the " principal office " of a railway company. Where general super- intendence carried on. Where Scotch company have part of their line in Eng- land. 138. And be it enacted, that any summons, or notice, or any writ, or other proceeding at law or in equity, requiring to be served upon the company, may be served by the same being left at or transmitted through the post directed to the principal office of the company, or one of their prin(upal offices where there shall be more than one, or being given personally to the secretary, or in case there be no secretary then by being given to any one director of the company. ARTICLE 1. — The principal office of a railway company is where the central government and general superintendence of the railway is carried on. In Garton v. Great Western Railway Company {m) a notice of action was served upon the superintendent of the Great Western Eailway at Bristol. It was held that the service was bad, as Paddington, and not Bristol, was where the stafl' of the com- pany was stationed and the central government of the railway carried on. In In re Broun v. London and Nortli-Western Eailway Com- pany {71) it was held that a railway company carries on its business- at the principal station where the general superintendent of the whole concern is centred, and not at any station, however large> where the local management of any portion of the line is conducted^ subject to the supervision of the general manager. In Palmer v. Caledonian Railway Company (o) the defendants were a Scotch company, and the office from which the whole concern was controlled and managed was at Glasgow. A small portion of the line was in England, and at Carlisle the defendants had an office for their district traffic superintendent. The special Act incorporated the Companies Clauses Consolidation Act, 1845, so far as it might be necessary for carrying into effect the object and purposes of the Act in relation to the portion of the railway (»i) (185S), 27 L. J. Q. B. 375 ; E., B. & E. 837 ; 4 Jur. N. S. 1036. (») (1863), 4 B. & S. 326 ; 32 L. J. Q. B. 318 ; 11 W. E. 884 ; 10 Jur. N. S. 234. (o) [1892], 1 Q. B. 823 ; 61 L. J. Q. 15. 552 ; 66 L. T. 771 ; 40 W. E. 562; dissenting from Wihon v. Cah-'lotiian Iiuiliray Cdmixiin/ (1850), 20 L. J. Ex. 6 ; 5 Ex. 822 ; 6 E. C. 772 ; 15 Jur. 17. See also S/dckercth v. Ghisyoiv and South- Wester u liuihvay Comjiany (1873), L. E. 8 Ex. 149 ; 42 L. J. Ex. 82; 28L. T. 167; 21 W. E. 339. The Baihrays Clauses ConsoJiiJation Act, 1845. 427 aucl works iu England. The plaintiff sued the defendants for false Sect. 138. imprisonment and breach of contract, and served the writ by leaving it at the office of the district traffic superintendent at Carhsle. This service was held to be bad, on the ground that the defendants' principal office was in Glasgow, and that the defen- dants being immd facie a Scotch company, the incorporation of the English Act for a limited purpose, and the fact that a part of the line was in England, did not make them an English company. 139. And be it enacted, that if any party shall have sect. i39. committed any irregularity, trespass, or other wrongful r^Y>nd^ proceeding in the execution of this or the Special Act, or amends, any Act incorporated therewith, or by virtue of any power or authority thereby given, and if before action brought in respect thereof such party make tender of sufficient amends to the party injured, such last-mentioned party shall not recover in any such action ; and if no such tender shall have been made it shall be lawful for the defendant, Ijy leave of the Court where such action shall be pending, at any time before issue joined to pay into Court such sum of money as he sliall think fit, and thereupon such proceedings shall be had as in other cases where defendants are allowed to pay money into Court. 140 — 160. [These sections deal icith the recoverti of damages sects. 1 u- -} J J o 140—160. and jjenalties.j 161. [This section deals icitli moncij paid into the Bank of sect. i6i. Ireland.'] 162, 163. [These sections deal irith access to the Special _sec|8 Act.^ 1— 164. [This section excludes Scotland from the Act.'] Sect. 164. 165. [This section deeds with amendment and repeal of the sect. 165. present Act.'] THE ABANDONMENT OF RAILWAYS ACT, 1850 (13 & 14 Vict. c. 83). Jn Act to facilitate the Abandonment of Piaihrays, and the Dissolution of Bailway Companies, in certain cases. [14th August, 1850. Sect. 17. Abandon- ment of rail- way to be advertised, and demands on the com- pany for com- pensation to be sent in. Warrant by Board of Trade for abandonment of railway. 17. [And he it enacted, that] within one month after the day on wliich any such warrant as aforesaid is granted by the said commissioners the railway company to which the same applies shall cause notice thereof to be inserted in the London, Edinburgh, or Dublin Gazette, according as the railway or part of railway mentioned therein is situate in England, Scotland, or Ireland, and once in each of three successive weeks in some newspaper published or circulat- ing in each county in which any part of such abandoned railway is situate, and to be affixed for three successive Sundays on the principal outer door of the church or churches of every parish in which any such part of such railway is situate, and in Ireland such notice shall also be affixed to the Koman Catholic chapel, and where there shall be no such church or chapel, on some public or conspicuous place of such paiish ; and every such notice shall require all persons having any claims or demands upon the said company for compensation or otherwise, by reason of the abandonment of railway authorised by such warrant, to transmit the statement of such claims or demands to the secretary of such company, at the office or usual place of business of the same company, within four months from the date of such warrant. The words in italics and tlie corresponding words in subsequent sections have been repealed by the Statute Law Revision Act, 1891. The warrant referred to is the warrant which the Board of Trade may give authorising the abandonment of a raihvay. The Board of Trade have decided that they will not grant a warrant for the abandonment of a railway, where the company was formed after 1867 (i>). (2>) See In re Uxlriilge and Rickmansworth Eaihvfu/ Company (1890), 43 Cli. D. 536 ; 59 L. J. Ch'. 409; 62 L. T. 347 ; 38 W. E.644. The Abandonment of Baihcays Act, 1850. 429 18. [And he it enacted, tliat,] upon proof to the satisfac- Sect. 18. tion of the said commissioners that notice of such warrant coim^ has been duly published in manner herein-ljefore required, sionersofRaii- the said commissioners shall certify the same accordingly ; ce?tiVtiie and such certificate shall be received in all Courts of justice '^'^^^f^^^^^jj^^'- or elsewhere as evidence that such notice was duly published notice of the r , , „ , : ,1 warrant. as atoresaid. 19. [And he it enacted, tliat] after the granting of any sect. 19. such warrant, and the publication of such notice thereof as .^^^g^:^ aforesaid, the company shall (subject to the provisions here- grantiasof in-after contained) be released from all liability to make, ™J^yto maintain, or work the railway mentioned in such warrant, be released or the part thereof thereby authorised to be abandoned, toTakethe"^' or to purchase any of the lands required for the making railway. thereof, or to complete the purchase of any such lands for the purchase of which notice may have been given, or any contract entered into, by or on liehalf of the company, or to complete any contract for or concerning the making, maintainiiig, or working of the railway so to be abandoned, or any other contract relating to the railway or part of railway so authorised to be abandoned which by reason of such abandonment cannot be performed : Provided always, that nothing in this Act contained shall extend to release the company from any liability to complete the purchase of any land for the purchase of which any contract may have been entered into by or on behalf of the company, and which contract may have been in part performed, or by virtue or in pursuance of which a specified sum or price as the consideration for the purchase of the lands thereljy agreed to be sold to or taken l3y the company shall have been fixed or ascertained previously to the passing of this Act, notwithstanding the time for the completion of the purchase named in such contract shall have been subsequently extended by agreement or arrangement with the company. 20. Provided always, [and he it enacted,'] that in every sect. 20. case in which before the granting of any such warrant any (jo^^j^j^tion notice hath been given or contract entered into by or on to be made behalf of the company named therein for purchasing any J'ractshave lands which such company were by the Acts relating been entered , T , 1 r j_i r into or notice tiiereto empowered to purchase tor the purpose 01 con- gi^.^i structing the railway or portion of railway so authorised to be abandoned, and from which contract such company 430 Code of the Law of Compensation. Sect. 20. Sect, 21. Compensation to adjoining landowners in lieu of accom- modation works. would be relieved under the provisions lierein-before con- tained, or where any contract hath been entered into for or concerninof the constructins;, maintaininof, or workinor of the railway or part of railway so authorised to be aban- doned, or any other contract relating thereto, which by reason of such abandonment cannot be performed, the company shall make to the owners or occupiers of and other parties interested in such lands, or being parties to such contracts as aforesaid, compensation, to be determined by arbitration as herein-after mentioned, for all injury, or damage, if any, sustained by such owners, occupiers, and other parties by reason of such purchase not being com- pleted pursuant to such notice, or by reason of such contract not being performed. 21. [And he it enacted, tliat^ where any railway or part of a railway so authorised to be abandoned shall have been then made or commenced, such company shall make to the owners and occupiers of the lands adjoining the railway or part of a railway so commenced or made, and authorised to be abandoned, compensation, to be determined by arbitration as herein-after mentioned, for all such injury or damage, if any, as shall be sustained by such owners or occupiers by reason of the omission to make gates, passages, drains, watercourses, bridges, and such other works, for the accom- modation of lands adjoining the railway, as such company would have been required to make if such railway had not been allowed to be abandoned. Sect. 22. Where roads have been carried across abandoned line of rail- way by means of a bridge or timnel com- pany to make compensation, in lieu of keeping bridges, Ice, in repair ex- cei)t where the road is re- stored to its former state. 22. [And he it enacted, that^ where the line of any rail- way so authorised to be abandoned shall have been wholly or partially laid out, and any road shall have been carried across such line of railway by means of a bridge or tunnel over or under such railway, which bridge or tunnel the company to whom such railway belonged would, in case the same had not been abandoned, have been liable to keep in repair, then in every such case, except where such bridge or tunnel shall, with the permission of the said commis- sioners, be by such company removed, and such road restored to the like or an equally convenient and good state as the same was in before it was interfered with by the makers of such railway, to the satisfaction (in case of difference between such company and the owner or persons having the management of such road) of the Commissioners of Kail ways, such company shall pay to the owner of such The Ahandonment of Piailwaijs Act, 1850. 431 road, if it be a private road, or to the trustees, surveyors of sect. 22. highways, or other persons having the management of such road, if it be a turnpike or other public road, a sum of money, to be determined by arbitration as after mentioned, in lieu aud discharge of their liability to keep such bridge or tunnel, and also the roadway over the same, in repair. 23, [_Aud he it enacted, that'] every sum so to be paid as Sect. 23. last aforesaid to such trustees, surveyors, or other [)ersons compensation as aforesaid shall be by them forthwith paid over to the treasurer of the county where the bridge or tunnel in respect of which such sum was paid is situate, and shall be by him iu vested in Consolidated Bank Annuities or other public securities, and the dividends or income thereof shall, until Parliament shall otherwise provide, be applied in the maintenance of the bridge or tunnel in respect whereof the same was paid, in such manner as the justices in c^uarter sessions having jurisdiction where such bridge or tunnel is situate shall order. to trustees and overseers of public roads, liow to be applied. 24. \^And he it enacted, that] every sum so to be paid as Sect. 24. last aforesaid in Scotland to such trustees or other persons ^ppikadonof as aforesaid shall be by them paid into the bank, and the monies paid, interest to arise thereon shall, until Parliament shall otherwise provide, be applied in the maintenance of the bridge or tunnel in respect whereof the same was paid, in such manner as the sheriff of the county in which such bridge or tunnel is situate, in case of any difficulty arising, shall direct. 25. \^And he it enacted, tiiat] the amount of the compensation so to be made in the several cases aforesaid shall be deter- mined, in case of difference, by arbitration, in the manner provided by the Railways Clauses Consolidation Act, 1845, or the Railways Clauses Consolidation Act, Scotland, 1845, as the case may require, and for that purpose all the clauses of the said Railways Clauses Consolidation Acts w4th respect to the settlement of disputes by arbitration shall be deemed to be incorporated with this Act : Provided always, that no such railway company shall be liable to make any compen- sation in respect of damage alleged to have been sustained by reason of the abandonment of the railway or part of the railway, or the non-completion of any contract of such company in any of the cases aforesaid, unless the claim for such compensation shall have been made w^ithin six Sect. 25. Amount of compensation to be settled by arbitra- tion pursuant to 8 & y Vict, c. 20 and 8 & 9 Vict, c. 33. Claims for compensation to be made within six months after publication of warrant for abandonment. 432 Code of the Law of Compensation. Sect. 25. Sect. 26. Company to be still liable for damage occasioned by their entry on lands for taking levels, &;c., pursuant to 8 & 9 Vict. c. 18, or 8 & 'J Vict. c. 19. mouths after the publication in the Gazette of the notice of the warrant for such abandonment as herein-ljefore provided. 26. Provided also, [_and he it enacted,'] that the authority so as aforesaid given for abandoning the making of any such railway or part of a railway shall not prejudice or affect the right of the owner or occupier of any lands to receive from such company compensation for any damage that may have been occasioned by the entry of such com- pany upon such lands, for the purpose of surveying and taking levels, and of probing or Iwring to ascertain the nature of the soil, or of setting out the line of the railway, pursuant to the provisions for that purpose in the Lands Clauses Consolidation Act, 1845, and the Lands Clauses Consolidation Act (Scotland), 1845, contained. Sect. 27. 27. l^And he it enacted, that'] all the lands acquired by LandJ^r ^^^^^^ compauy for the purposes of the railway or part of chased by the railway SO authorised to be abandoned shall be sold by such ^an^ to bT' company within the time limited or prescribed for that pur- soid within a posc in the Warrant autliorising the abandonment of such limited time. j,.^i|^y,^y^ ^^^^ [f qq ^[^q ]jq therein prescribed for that pur- pose, then within two years from the date of such warrant, in the manner prescribed l^y the said Lands Clauses Con- solidation Acts with respect to the sale of superfluous lands ; and for that purpose all tlie clauses of the said last-mentioned Acts with respect to the lands acquired by the promoters of the undertaking under the provisions of their Special Act, but wdiich are not required for the purposes thereof, shall be deemed to be incorporated witli this Act : Provided always, that the offer to be made by the railway company pursuant to the said Acts to sell such lands to the person entitled to the lands from which the same were severed shall be made at a price or sum not greater than the price or sum at which such lands were purchased by such company. Sect. 34. In case of petition for winding up, landowners are to bo deemed creditors in 34. l^And he it enacted, tliat] in the event of the affiiirs of any such company being wound up under any such petition, the compensation herein-before directed to be given to the owners and occupiers of lands and others in respect of the damage sustained by them by reason of such abandonment in tlie cases herein-ljefore mentioned, or by reason of the The JlnnuJoiwicut of Ihiihraiis Act, 1850. 433 11 on- completion of any sucli contract as aforesaid, or other- sect. 34. wise, shall be deemed a demand claimed from, and when j-espe^ ascertained in the manner iH'ovided 1 )y this Act a del)t due of the com- , , I .11 1 pensation from, such company, and the party by whom such compen- given by this sation is claimed shall be deemed a " creditor," in England -^^t. or Ireland, within the provisions of the said Joint Stock Companies Winding-up Act, or, in Scotland, within the provisions of the said recited Act of the second and third years of the reign of Her present Majesty ; and in case any lands purchased by such railway company shall be sold by the official manager under the said Act, they shall be sold in the manner and subject to the provisions contained in this Act. L.C. 28 THE RAILWAYS CLAUSES ACT, 1863 (26 & 27 Vict. c. 92). An Ad for consolidating in one Ad cniain Provisions frequently inserted in Arts rehitin;! to llaihrans. [2 8 til July, 1863. Part L — Construction of a Eailway. Sect. 3. 3. This part of this Act shall apply to the railway : — : authorised to be constructed by auy Special Act hereafter of^pai?i!.Tnd passed and incorporating this part of this Act. interpretation J^ ^j^^g p.-^^^^ of this Act— of terms. , ■,-, ^ n i ^ • . i All terms used have the same meanings as the same terms have when used in the Railways Clauses Consolidation Act, 1845, and the Railways Clauses Consolidation (Scotland) iVct, 184.5, respectively: The term "tidal river" means any part of a river within the flow and ebb of the tide at ordinary spring tides : The term "tidal water" means any part of the sea or any part of a river w^ithin the flow and ebb of the tide at ordinary spring tides : The term "tidal lands" means such parts of the bed, shore, or banks of a tidal water as are covered and uncovered by the flow and ebb of the tide at ordinary spring tides. The provisions respecting the recovery of penalties contained in the said Railways Clauses Consolidation Acts respectively, as the case may recjuire, shall be incorporated with this })art of this Act. Alteration of Enyholds, shall be read and have effect as if the limitation of time therein contained were omitted therefrom) : (2.) Any party under disability or incapacity, and not having power to sell and convey or release any lands, except under the Lands Clauses Acts, as applied by the present section, shall have capacity only to con- tract with the promoters for the sale of those lands, and shall not (before such a certificate of the Board of Trade, as is herein-after provided for, comes into operation) have capacity, further or otherwise than if this Act had not been passed, to carry the contract into execution, or in pursuance thereof to convey or deliver possession of or release those lands : (3.) The promoters (before such a certificate as aforesaid comes into operation) shall be empowered by this iVct only to contract for lands, and they shall not have capacity, further or otherwise than if this Act had not been passed, to take or hold lands. Tlw Ilniliraiis Construction Fitrilities Act, 1864. 441 4. AVliere lauds required for the railway Ijelong to or Sect. 4. are enjoyed by Her Majesty the Queen, her heirs or conti^for successors, in right of the Crown, or form part of the ^^^^^^^l^^^'ll possessions of the Duchy of Lancaster or of the Duchy thcCro^raor of Cornwall, any contract for the purposes of this Act {^;,\';J:j,°J^ ^^, may be entered into in respect of those jands, as follows ; coiuwaii. namely. In the first-mentioned case, by the Commissioners of Her Majesty's Woods, Forests, and Land Ee venues, or one of them, with the consent of the Commissioners of Her Majesty's Treasury ; In the secondly-mentioned case, by the Chancellor of the Duchy by writing under his hand attested by the Clerk of the Council of the Duchy ; In the thirdly -mentioned case, by the Duke of Cornwall or other the persons for the time being empowered to dispose for any purpose of lands of the Duchy. 5. ^N'otwithstanding anything in this Act, it shall not Ijc Sect. 5. necessary for the promoters, before applying under this user of or Act for authority to make the railway, to enter into any ^^^^jJ^^^^^JJ'^^ contract with respect to any part of a turnpike road or or turnpike public highway intended to be taken or used, or to be i'^^'^*- diverted or otherwise interfered with, for the purposes of the railway ; but the Board of Trade before they settle a draft of such a certificate as herein-after provided for, shall l)e satisfied that due provision is made for the interests of the trustees or other persons having the management of every such road or highway, and for the safety and convenience of the pulilic in relation thereto. # ^ 4^ # =^ Ldiuls. 23. The Lands Clauses Acts shall be incorporated with sect. 23. the certificate (which shall for this purpose be deemed the incorp^tion Special Act) except as may be therein excepted, and except ^f ^ands as to the following provisions ; namely, in'certificate, (L) With respect to the ijurchase and takingj of lands except pro- \ z . J- ^ ^ visiuns giving otherw^ise than by agreement : compukory (2.) With respect " to' the entry upon lands by the i""'"'^'^' '^'^• promoters of the undertaking : (3.) So much of those Acts as provides for the deter- mination or ascertainment of the amount of any purchase or compensation money, or the settlement of any apportionment or other matter, otherwise than 442 Sect. 23. Code of the Law of Compensation. by agreement (but excluding from this exception so much of those Acts as provides for the determina- tion of the amount of compensation to be paid for enfranchisement of copyhokis). Incorporation of Companij. Sect. 30. Contracts by promoters binding on company. Sect. 31. Incorporation of Railwa3s Clauses Acts in certificate, except as to compulsory powers, kc. 30. Contracts relative to the purchase or taking of lands for the railway, entered into by the promoters before the incorporation of the company by the certificate, shall be as binding on the company as if they had been entered into by the company. Construction of Baibrajj. 31. The Railways Clauses Acts shall be incorporated with the certificate (which shall be deemed the Special Act), except as may be therein excepted, and except as to the following provisions ; namely, (1.) Such of the provisions with respect to the con- struction of the railway and the works connected therewith as relate to the correction of errors and omissions in plans or to plans and sections of alterations : (2.) With respect to the temporary occupation of lands near the railway during the construction thereof: (3.) With respect to leasing the railway : and subject to the following provisions ; namely, (1.) Nothing herein shall confer power for the taking or usino- of lands for deviation or for anv other purpose, otherwise than l)y agreement : (2.) Any provision referring to the datum line described in the section approved of by Parliament shall be read as referring to the datum line described in the section approved of by the Board of Trade. THE RAILWAY COMPANIES ACT, 1867 (30 & 31 Vict. c. 127)." An id to amend the Laic relating to Baihran Companies. [20th August, 1867. Pareliase of Lands. Sect. 36. 36. Where after the passing of this Act a company €xercise the powers conferred on the promoters of the ;^^'"™'|:Siway undertaking by section eighty-five of the Lands Clauses companies) of Consolidation Act, 184.5, 'tlie following provisions shall "jyi^^^^W^ have effect : (1.) The surveyor to be appointed, as iu tliat section provided, shall be appointed by the Board of Trade instead of by two justices, and all the provisions of that Act relative to a surveyor appointed by two justices shall apply to a surveyor so appointed by the Board of Trade : (2.) The company shall give not less tlian seven days' notice of their intention to apply to the Board of Trade for the a[!pointment of a surveyor to any party interested in or entitled to sell and convey the lands in cjuestion and not consenting to the entry of the company. (3.) The valuation to be made by the surveyor so appointed shall include the amount of compensation for all damage and injury to' be sustained by reason of the exercise of the powers conferred by the said section, as far as such damage and injury are capable of estimation : (4.) The sureties to the bond to be given by the com- pany under that section shall, in case the parties differ, instead of being approved of by two justices, be approved of by the Board of Trade, after hearing the parties. ARTICLE 1.— A railway company cannot since this Act enter Company upon lands under sect. 85 of the Lands Clauses Consolidation Act, ^^pon^land by 444 Code of tlic Law of Compensation. Sect. 36. depositing amount of a valuation made before Auiiust 20th, 1867. Board of Trade to hear objections where parties differ. 1845, by depositing the amount of a valuation made before this Act came into force. Therefore, where a railway company had valued the land only under sect. 85 of the Lands Clauses Consolidation Act, 1845, and had entered after August '20th, 1867, on depositing the amount of the valuation, it was held that the entry was irregular, and an injunction was granted restraining the company from continuing in possession of the land until the proper deposit had heen made (u). ARTICLE 2. — The Board of Trade need only hear objections if the parties differ. So held in Loosemore v. Tiverton, t('c. Railway Company {x). (ii) Field v. Carnarvon and Llanheris Raihuay Company (1867), L. E. 5 Eq. 190 ; 37 L. J. Ch. 176 ; 18 L. T. 534 ; 16 W. E. 273. (r) (18S2), 22 Ch. D. 25, 40. (The case subsequently went to the House of Lords on another point.) THE REGULATI(3N OF EAILWAi:^ ACT, 1868 (31 & 32 YiCT. c. 119). An Act to aiufud tlie Iaiic rdating to Fuiilwaiis. [31st July, 1868. # # # # * 41. Whenever, in the case of any lands purchased or sect. 4i. taken otherwise than by agreement for the purposes of any companymay public railway, any question of compensation in respect ''^''•'^-^'^^'^i^^^. thereof, or any question of compensation in respect of jmigeat lands injuriously affected by the execution of the works j^'*JJg™'"a2 of any public railway, is under the provisions of "The ofcompensa- Lands Clauses Consolidation Act, 1845," to be settled by f&g '^^T. the verdict of a jury empamielled and summoned as in c is. that Act mentioned, the company or the party entitled to the compensation may, at any time before the issuing by the company to the sheriff as by that Act directed, apply to a judge of any one of the Superior Courts of Common Law at Westminster, who shall, if he think fit, make an order for trial of the question in one of the Superior Courts upon such terms and in such manner as to him shall seem lit ; and the question between the parties shall be stated in an issue to be settled in case of difference by the judge, or as he shall direct, and such issue may be entered for trial and tried accordingly in the same manner as any issue joined in an ordinary action at such place as the judge shall direct ; and the proceedings in respect of such issue shall be under and subject to the control and jurisdiction of the Court as in ordinary actions therein, but so neverthe- less that the jury shall, where the issue relates to the value of lands to be purchased, and also to compensation claimed for injury done or to be done to lands held therewith, deliver their verdict separately in manner provided by the forty -ninth section of " The Lands Clauses Consolidation Act, 1845." The words " of a warrant " must be read in after the words *' before the issuing by the company." ARTICLE 1.— If a railway company desii-e to have compensation Summons be- fore judge 446 Code of the Law of Compensation. Sect. 41. must be returnable within twenty-one days. Jurisdiction of master under Order t;i. rule 12. High Court has no power to order trial before judge alone. assessed under sect. 41, they must make the summons before the judge returnable within twenty-one days. In Tanner v. Siciudon Puiihcay Company (ij) the twenty-one days elapsed after the taking out of the summons, but before it was returnable. It was held that the judge had no jurisdiction to make an order. In In re DonistJiorpe and the Manchester, Sheffield and Lincoln- shire Railway Company {z) it was held that the jurisdiction con- ferred by sect. 41 of the Regulation of Railways Act, 1868, is now vested in the judges of the High Court, and may, except as to the settling of an issue in case of difl'erence, be exercised by a master under Order 64, rule 12. ARTICLE 2. — The High Court has no jurisdiction to order the trial to take place before a judge alone. So held in In re East London Hail way Company, Olirer's Claim {((), notwithstanding the Judicature Acts and the rules thereunder. Judge and jury cannot try questions of title. ARTICLE 3. — A judge and jury have no jui'isdiction to determine the title to compensation, but can only determine the amount. Their jurisdiction is the same as that of the sherifi' and a jury {h). High Court ARTICLE 4. — The High Court has no jurisdiction to grant a new cannot grant ^^.^^j £ ^ under sect. 41 to determine the compensation payable a new trial. -^ by a railway company. So held in Bi)ini)i(j]iam and District Land Company v. London and North-Western Railway Company (c). The verdict of the jury is final, as in the case of a trial by the sheriif and a jury. In New Fiiver Company v. Midland Railway Company {d), a case decided before the preceding one, where the judge had held that the plaintiffs were not entitled to compensation, the Court of Appeal held that the time for appealing was not limited to twenty- one days. In this case the point that there was no appeal does not appear to have been taken. i^l) (18S1), Ab L. T. 209. (2) [1S97], 1 Q. B. 671 ; 60 L. J. Q. B. 399 ; 76 L. T. 371 ; 45 W. E. 386. (a) [1.S90], 24 U. B. D. 507 ; 63 L. T. 147 ; 38 W. E. 312. (I)) 111 rv Eaut LiiikIhii Railivay Cvmjxiny, Oliver's C7«/v/i (1890), 24 (i. B. D. 507 ; 03 L. T. 147 ; 38 AV. E. 312. See Lands Clauses Consolidation Act, 1845, sect. 50, aiifc. pp. 122 — 128, and Articles thereunder. C) (1889), 22 Q. B. D. 435; 58 L. J. Q. B. 587; 60 L. T. 317 ; 37 W. E. ORq {S1 ; 60 L. J. U. 15. 361 ; 64 L. T. 1 ; 40 \\ . l\. 129 ; oo J. P. 325 ; pout, p. 460. (m) (1872), L. E. 8 Cli. App. 125; 42 L. J. Ch. 107; 27 L. T. 521; 21 W. R. 32. The ]Vat>'ncorls Clauses Act, 1847. 451 7. If any omission, misstatement, or wrong description Sect. 7. sliall have ijecn made of any lands or streams, or of tlie EnorT^d owners, lessees, or occupiers of any lands or streams, *''j"ij!:''^^ ^"^ described on the plans or books of reference deposited in may^becor- compliance with the Standing Orders of either House of -Jj^ff^^gg^^. Parliament, or in the schedule to the Special Act, the who shall undertakers, after giving ten days' notice to the owners, ^^^'^^ *^^ lessees, and occupiers of the lands and streams affected by such proposed correction, may apply, in England or Ire- land, to two justices, and in Scotland to the sheriff, for the correcti(jn thereof; and if it appear to such justices or sheriff that such omission, misstatement, or wrong descrip- tion arose from mistake, they or he shall certify the s;inie accordingly, and shall in such certificate state the particu- lars of any such omission, misstatement, or wrong descrip- tion ; and such certificate, with the other documents to Certificate, which it relates, shall be deposited, in England or Ireland, Jeposked. with the clerk of the peace, and in Scotland with the sheriff" clerk of the several counties in which the lands or streams affected thereby are situated, or, where any such lands or streams are situated in a royal burgh, in Scotland, with the town clerk of such burgh ; and such certificate shall be kept by sucli clerks of the peace, sheriff clerks, or town clerks respectively with the other documents to which they relate ; and thereupon such plan, book of reference, or schedule shall be deemed to be corrected according to such certificate ; and the undertakers may make the works in accordance with such certificate, as if such omission, misstatement, or wrong description had not been made. 8. The undertakers shall not begin to execute the water- sect. 8. works unless they shall have previously deposited with the workTm^t to clerk of the peace in England or Ireland, and the sheriff be proceeded clerk in Scotland, of every county, and the town clerk of p/ans of au every royal buro-fi in Scotland in which the waterworks alterations J J o . pnii • authorised by shall be situated, a plan and section oi all such alterations parliament from the original plan and section (if any) as shall have Jjgpo^S been approved of by Parliament, on the same scale and con- taining the same particulars as the original plan and section of the waterworks, and shall also have deposited with the parish clerks of the several parishes in England, and the clerks of the unions of the several parishes in Ireland, and the schoolmasters of the several parishes in Scotland, in which such alterations shall have been authorised to be 29—2 452 Code of ilie Lair of Compensation. Sect. 8. made, copies or extracts of or from sucli plans and sections as shall relate to such parishes respectively. Sect. 9. 9. The said clerks of the peace, sheriff clerks, and town cieikTof'the clcrks, parish clerks, clerks of unions, and schoolmasters peace, &c to shall receive the said plans and sections of alterations, and receive plans . -, in -i iinii of alterations, copies and cxtracts thereoi respectively, and shall keep the &c., and allow game, as well as the said orio;inal plans and sections, and insi)ection. .*-'■'■ shall allow all persons interested to inspect any of the documents aforesaid, and to make copies and extracts of and from the same, in the like manner and upon the like terms, and under the like penalty for default, as is provided in the case of the original plans and sections by an Act passed in the first year of the reign of Her Majesty, intituled " An Act to compel clerks of the peace for counties, and other persons, to tal^e the custodij of such documents as shcdl he directed, to he deposited with them under tlie Standing Orders of citlier House of Parliament.'^ 7 Will. IV. ic 1 Vict, c. 83. Sect. 10. Copies of plans and alterations, •Sec. to be evidence. 10. Copies of the said plans and books of reference, or of any alteration or correction thereof, or extracts there- from, certified by any such clerk of the peace, sheriff clerk, or town clerk, which certificate such clerk shall oive to all parties interested, when required, shall be received in all Courts of justice or elsewhere as evidence of the contents thereof. Sect. 11. 11. The undertakers in constructing the waterworks NottTd^viate shall iiot deviate from the line of the works hdd down beyond limits in the Said plan more than the prescribed number of yards, tleiined upon -, ■, ■, ^ -, ^. ■, i i plans, &c. and where no number oi yards is prescribed not more than ten yards, nor in any case to any greater extent than the line of lateral deviation described in the said plans with respect to such works, nor take nor use, for the purpose of such deviation, the lands of any persons, not mentioned in the books of reference without his previous consent in writing, unless the name of such person shall have been omitted by mistake, and the fact that such omission happened from mistake shall have been certified in manner herein-before provided. The code of articles to the Railways Clauses Act, ss. 14 and 15, deal with the subject-matter of this section (»)• 00 Ante, pp. 365, 366. The Wateru'ods Clauses Act, 1847. 453 12. Subject to the provisions and restrictions in this rikI sect. 12. the Special Act, and any Act incorporated therewith, the undeTtiu^ers, undertakers may execute any of the followino- works for subject to pro- ..- -i / ^ • \ visions of this constructing tlie waterworlis ; (that is to say,) and the They may enter upon any lands and other places ^5'^^,'^^^^*^'^ desciibed on the said plans and in the said books of the works reference, and take levels of the same, and set out such herein named, parts thereof as they shall think necessary, and dig and break up the soil of such lauds, and trench and sough the same, and remove or use all earth, stone, mines, minerals, trees, or other thinos duo; or irotten out of the same : They may from time to time sink such wells or shafts, and make, maintain, alter, or discontinue such reser- voirs, waterworks, cisterns, tanks, arpieducts, drains, cuts, sluices, pipes, culverts, engines, and other works, and erect such buildings, upon the lands and streams authorised to be taken by them, as they shall think proper, for supplying the inhaljitants of the town or district within the prescribed limits with water : They may from time to time divert and impound the water from the streams mentioned for that purpose in the Special Act, or the said plans or I'ooks of reference, and alter the course of any such streams, not being naviga1)le, and also take such waters as may be found in and under or on the lands to Ije taken for constructing the works : Provided always, that in the exercise of the said powers the Undertakers undertakers shall do as little damage as can be, and in all pensationfor cases where it can be done shall provide other watering damages, places, drains, and channels for the use of adjoining lands, in place of any such as shall l)e taken away or interrupted by them, and shall make full compensation to all parties interested for all damage sustained by them through the exercise of such powers. The general principles of compensation under this section are the same as those under sect. 68 of the Lands Clauses Consolidation Act, 1845 ((>\ ARTICLE 1.— Promoters are not liable to pay compensation to Where pro- persons because by their works they have intercepted water which ^gp^ ^-ater would have percolated through the strata of the earth on to the land percolating ^ * through 01 such persons. strata. So held in Xeic Hirer Company v. Johnson (p) on the ground (o) Aittf, p. 154. 0^) (1859), 2 E. & E. 435 ; 29 L. J. M. C. 93 ; G Jur. N. S. 374. See also 454 Code of the Law of Compensation. Sect. 12. that no action would lie against the promoters if no Act authorising the execution of the works had been passed. In Mayor of Bradford v. Pickles (q) it Avas held that the owner of land containing underground water which percolates by undefined channels and flows to the land of a neighbour, has the right to divert or appropriate the percolatiDg water within his own land so as to deprive his neighbour of it. And his right is the same what- ever his motive may be, whether bona fide to improve his own land, or maliciously to injure his neighbour, or to induce his neighbour to buy him out. Promoters ARTICLE 2.— Under sect. 12, the promoters can only take the land can OTiy take ^^^ ^j^g purposes authorised by the special Act. Horfsed by In Simpson V. South Stafordsliire Waterworks Company (r) it was special Act. ^^^^ ^^^^ ^^^ promoters could not take a field in order to obtain an additional supply of water, where that was not one of the purposes for which they were authorised by their special Act to acquire it. Temporary annoyance not a nuisance. ARTICLE 3.— Where in the exercise of their statutory powers the promoters cause temporary annoyance, it does not amount to a nuisance. In Harrison v. Southicark and Vau.rhall Water Company (s) the defendants, in the exercise of their statutory powers, sunk a shaft in land adjacent to the plaintiff's house, and for the purpose employed lift-pumps, the noise of which seriously interfered with the plaintiff's comfort. It was held that the annoyance, being temporary and for a lawful object, did not amount to a nuisance at law. Sect. 13. Penalty for obstructing construction of worlis. 13. Every person who shall wilfully obstruct any person acting under the authority of the undertakers in setting out the line of the works, or pull np or remove any poles or stakes driven into the ground for the purpose of setting out the line of such works, or deface or destroy any works made for the same offence, shall Ije liable to a penalty not exceeding five i)Ounds for every such ofifeuce. Ile(/. V. Metri,),olUun Ikxird of Worhs (1863), 3 13. & S. 710 ; 32 L. J. Q. B. 105 ; 8 L. T. 23S ; 1 1 W. It. 4!)2 ;!) Jur. N. 8. lOOH. (7) [lS9o], A. C. O.S7; (i4 L. J. Ch. 759 ; 11 E. 2S0 ; 73 L. T. 353 ; 44 W. E. 190 ; (JO J. P. 3. See also Chasemore v. liirhanh (1859), 7 II. L. C. 349; 29 L. J. Ex. 81 ; 7 W. E. 685; Adon v. Bl>n„hlf (1844), 12 M. & W. 324 ; 13 L. J. Ex. 289 ; Brymbo Water Compuuij v. Ltster's Lime Compamj [1894], 8 E. 329. (r) (1865), 4 De G. J. & S. 679; 34 L. J. Ch. 380 ; 12 L. T. 3G0; 13 W. E. 808; 11 Jur. N. S. 453. {s) [1891J, 2 Ch. 409; 60 L. J. Ch. 630; 64 L. T. 864. The IVatrnroiis Clauses Act, 1847. 455 14. After the streams or supplies of water hereby or Ijy sect. 14. the Special Act authorised to be taken by the undertakers Penalty f.n- shall have been so taken, every person who shall illegally ^^^^^^^ divert or take the waters supplying or flowing into the water, streams so taken, or any part thereof, or avIio shall do any unlawful act whereby the said streams or supplies of water may be drawn off or diminished in quantity, and who shall not immediately repair the injury done l)y him, on being required so to do by the undertakers, so as to restore the said waters to the state in which they were before such act, shall forfeit to the undertakers any sum which shall be awarded in England or Ireland, by two justices, and in Scotland by the sheriff, not exceeding live pounds fur every day cluring which the said supply of water shall be diverted or diminished by reason of any act done by or by the authority of such person, and any sum so forfeited shall be in addition to the sum which he may be lawfully adjudged liable to pay to the undertakers for any damage whicbT they may sustain by reason of their supply of water being diminished; and the payment of the sum so forfeited sliall not bar or atfect the right of the under- takers to l)iing or raise an action at law against such person for the damage so committed. 15. Provided always, that nothing herein contained shall sect, is. prevent the owners and occupiers for the time being of Reservation lands through or by which such streams shall flow from ^f„^^^^^^°° using the waters thereof in such manner and to such extent as they might have done before the passing of the Special Act, unless they shall have received compensation in respect of their right of so using such A\'ater. And with respect to the construction of works for the seet. i6. accommodation of lands adjoining the waterworks, be it A,,(.ommo(hi. enacted as follows : ''""' "^^ 16. Where by the Special Act the undertakers shall be J^jSe'con! '' required to erect any works for making good the interrup- struction of . ^ T •'-,... .1 J. 1 accommoda- tion caused to any lands adjoining or near the waterworks, tion works to or otherwise, for the accommodation of such lands, then, if ^.^^^^f^^^*^^^^ ^^' any diff'erence shall arise respecting the construction of any such accommodation works, or the kind or size or sufliciency thereof, or respecting the maintenance thereof, the same shall be determined, in England or Ireland by two justices, and in Scotland by the sheriff", and such justices or sheriflf shall also appoint the time within which such 456 Code of the Lair of Compensation, Sect. 16. accommodation works shall be begun and finished by ' the undertakers. Sect. 17. If under- takers fail to execute such works persons aggrieved may perform the same, and charge the expense to the under- takers. Sect. 18. Undertakers not entitled to mines unless previously purchased. Sect. 19. Map and plan of under- ground works of under- takers to be made. 17. If the undertakers shall, for fourteen days next after the time appointed by such justices or sheriff for the beginning of any such accommodation works, fail to begin such works, or, having begun such works, fail diligently to execute the same in a sufKcient manner, the person aggrieved by such ftiilure may execute such works or repairs ; and the reasonable expenses thereof shall, on demand, be repaid by the undertakers to the person by whom the same shall so have been executed ; and if there be any dispute about the amount or nature of such expenses, the same shall be settled in England or Ireland by two justices, and in Scotland by the sheriff. And with respect to mines, be it enacted as foliows : 18. The undertakers shall not be entitled to any mines of coal, ironstone, slate, or other minerals under any land pur- chased by them, except only such parts thereof as shall be necessary to be dug or carried away or used in the con- struction of the waterworks, unless the same shall have been expressly purchased, and all such mines, excepting as aforesaid, shall be deemed to be excepted out of the con- veyance of such lands, unless they shall have been expressly named therein and conveyed thereby. 19. The undertakers shall from time to time within six months from the time at which any pipes, conduits, or under2;round works shall have been laid down or formed })y them, cause a survey and map to be made of the district within which any such pipes or underground works shall be laid, on a scale not less than one foot to a mile, and shall cause to be marked thereon the course and situation of all existing pipes or conduits for the collection, passage, or distriljution of water, and underoTound works beloiioino; to them, in order to show all such underground works within the said district, and shall, within six months from the making of any alterations or additions, cause the said map to be from time to time corrected, and such additions made thereto as may show the line and situation of all such })ipes, conduits, and underground works as may be laid down or formed b\- them from time to time after the passing of the Special Act; and such map and plan, or a copy thereof, with the date expressed thereon of the last Tlir ]\'((t('nroiis Clauses Act, 1847. 457 time \vLen the same slialJ have been so corrected as afore- Sect. 19. said, shall be kept in the office of the nndertakers, and shall be open to the inspection of all persons interested in the same within tlie said district. 20. The undertakers shall from time to time within sect. 20. three months from the time at which any such map or copies of such plan, or any such correction thereof or addition thereto, ™'M» or i>ian shall have been made as aforesaid, deposit with the clerks posited with of the peace in England or Ireland, and with the sheriff ^-leikof the clerks in Scotland, of every county, and the town clerk of ' ' ' every burgh in Scotland, in which such district or any part thereof may be situate, and also with the parish clerks of the several parishes in England, and clerks of the union of the several parishes in Ireland, and the schoolmasters of the several parishes in Scotland in which such underground works shall Ije situate, copies of the said map or plan, with all such particulars and all such corrections and addi- tions as aforesaid, so far as relates to such counties, burghs, and parishes respectively. 21. The said clerks of the peace, sheriff clerks, and town sect. 21. clerk.s, parish clerks, clerks of the union, and schoolmasters cickToFthe shall receive the said copies of the said map and phin peace, iic, to respectively, and shall keep the same, and shall allow keep copies of all persons interested to inspect the same, and take the map, &c., . -•■ , f -\ r ^ • 1 Ti an. ])]K 110—12:5. See also Holtldaii v. M(t)i»r of Wuhfidd [1S91], A. ('. 81 ; (JO L. J. (I. li. ;5r,l ; G4 L. T. 1 ; 40W. E. 129; ob J. V. 325. (Ii) (1902), ST L. T. 275. (..) (1886), 50 L. J. Q. B. 255 ; 57 L. T. IKJ. The Watrnrods Clauses Act, 18-17. 459 occasioned to the works of tlie undertakers by the working sect. 23. of such mines in an unusual manner, the same shall be damn^T" forthwith repaired or removed (as the case may require), occasioned by and such damage made good, by the owner, lessee, or mines in an occupier of such mines or minerals, and at his own """suai i T.p, . 11 r ^ • ^ manner. expense; and it such repair or removal ije not tortnwitli done, or, if the undertakers shall so think fit, without waiting for the same to be done by such owner, lessee, or occupier, it shall be lawful for the undertakers to execute the same, and recover from such owner, lessee, or occupier the expense occasioned thereby by action in any of the Superior Courts. 24. If the working of any such mines under the said sect. 24. works of the undertakers or within the above-mentioned Minima com- -distance therefiom be prevented as aforesaid by reason of munications. apprehended injury to such works, it shall l)e lawful for the respective owners, lessees, and occupiers of such mines to cut and make such and so many airways, headways, gateways, or water levels through the mines, measures, or strata, the working whereof shall be so prevented, as may be requisite to enable them to ventilate, drain, and work any mines or minerals on each or either side thereof, l)ut no such airway, headway, gateway, or water level shall be of greater dimen- sions or sections than the prescribed dimensions or sections, and where no dimensions are prescribed eight feet wide and ■eiglit feet high, nor shall the same be cut or made upon any part of the said works so as to injure the same. 25. Except where otherwise provided for Ijy agi-eement. Sect. 25. the undertakers shall from time to time pay to the owner, company to lessee, or occupier of any mines of coal, ironstone, and makecom- other minerals, extending so as to lie on both sides of any ow'Ji'eViessee, reservoirs, buildings, pipes, conduits, or other works, all or occupier of such additional expenses and losses as shall Ije incurred by expenses such owner, lessee, or occupier by reason of the severance mcuned by of the lands over such mines or minerals by such reservoirs mines being or other works, or of the continuous working of such mines ^™i'^^'^^^- or minerals being interrupted as aforesaid, or by reason of the same being worked under the restrictions contained in this or the Special Act, and for any mines or minerals not purchased by the undertakers which cannot be obtained by reason of making and maintaining the said works, or by' reason of such apprehended injury from the working thereof as aforesaid ; and if any dispute or question shall arise 460 Code of tlic Law of Compensation. settled by arbitration Sect^s. between tlie undertakers and sucli owner, lessee, or Disputes to be occupier as aforesaid, touching the price of such minerals the same shall be settled by arbitration in such manner as is provided by the Lands Clauses Consolidation Act if the undertakino; shall be situate in Eno;land or Ireland, and by the Lands Clauses Consolidation (Scotland) Act, if the undertaking^ shall be situate in Scotland. Claim for prospective prevention of worlving not maintainable. ARTICLE 1. — A claim is not maintainable in respect of mines or minerals which, at some future time, it may be necessary to leave un worked. In HolUday v. Mayor of Wah'e^field (y) the waterworks undertakers gave the mine- owners notice to treat for part of the coal. The mine- owners claimed compensation not only for the value of the land, but also for injurious affection and prospective damage. The arbitrator found that if the undertakers purchased and retained in situ the coal which they had given notice to take and no other coal, the mine-owners, by reason of the undertakers' works and of apprehension of injury therefrom to one seam, could not get more than 50 per cent, of the coal under the reservoir, or within twenty yards of its boundary ; that a prudent lessee working without right to compensation would be compelled by reason of such apprehension of injury to abstain from working more than 50 per cent, of the coal within the defined area ; and that there was no reason to apprehend injury present or future from the undertakers' works to any part of the mines if 50 per cent, of the coal in the defined area were retained in sita. The House of Lords held that the mine- owners were not entitled to claim or recover compensation for the prospective prevention of the working of more than 50 per cent, of the coal within the defined area. In that case I^ord Watson said : " The enactments of sect. 25, so far as they bear upon the question before us, are to the effect that the undertakers shall 'from time to time ' pay compensation to the owner, lessee, or occupier of the mine 'for any mines or minerals not purchased by the undertakers which cannot be obtained by reason of making and maintaining the said works, or by reason of such apprehended injury from the working thereof as aforesaid.' These enactments are, in my opinion, adverse to the arguments of the appellants. They refer back to the clauses already noticed, for ascertainment of the unworked minerals in respect of which compensation is to be paid ; and the provision that payment shall be from time to time indicates, not that the whole claim of the mine-owner is to be ascertained and (//) [1S911, A. C. 81 ; (iO T.. J. (i. V,. 361 ; (M L. T. 1 ; 40 W. E. 129 ; oo J. P. 325. Thr lVowjrto"take may, if they think fit, subject to the provisions of that Act, easements, and of " The Lands Clauses Consolidation Acts Amend- meut/ *° ment Act, 18G0," grant to the undertakers any easement, right, or privilege, not being an easement of water, required for the pui'poses of the Special Act, in, over, or afiecting any such lands ; and the provisions of the last-mentioned Acts with respect to lands and rent-charges, as far as the same are applicable in this behalf, shall extend and apply to such grants, or to such easements, rights, or privileges as aforesaid, ARTICLE 1. — A gas company are entitled to support for their CJas company pipes, and a landowner is entitled to compensation for the bui'den support for thus imposed upon him. pipes ; land- owner to com- In Xorniaiiton Gas Company v. Pope (a) the defendants, the pensation. lessees of the minerals under and adjacent to the highway under which the plaintifts had laid their pipes, had by working the coal thereunder let down the soil of the highway and caused injury to the plaintifls' pipes. It was held that the plaintiffs were entitled to support for their pipes, and that the landowner was entitled to compensation for the harden thus imposed upon him. Brett, M.E., said : " Suppose that there is a landowner who has minerals under the pipes thus laid in his land, the Act takes from him the free power of getting and selling that which is a valuable property. That must cause damage to such an owner. It is said that no damage is done to him until he actually desires to work and does work the minerals ; but it appears to me that that contention is not correct ; the damage is the being unable to get the minerals, and it is the company which imposes a burden upon his land — the burden, that is, of preventing him from working the minerals as soon as ever they lay their pipes in his land. He is, therefore, in my opinion, entitled to receive compensation in respect of his being deprived thus of the free use of his minerals and land, and it results in his getting compensation for the risk thus undergone by him. This Court held, in In re Corporation of Dudley (b), that such compensation could not be given in driblets, but that the Compensation landowner must obtain it once for all, and that appears to me to '^^""*^* ^^^ ' '- ■■• given in be a right view. This being so, then, with regard to all the pipes driblets, which the plaintiffs laid after they were incorporated, they laid them under the Act, and the owner of the minerals is in respect of (a) (1882), 52 L. J. Q. B. 629 ; 32 W. E. 134. (b) (1881), 8 Q. B. D. 86; 51 L. J. Q. B. 121 ; 45 L. T. 733; 46 J. P. 340. L.c. 30 466 Code of the Law of Compensation. Sect. 10. those entitled to compeusatiou. The plaintiffs also are entitled to damages for an injury caused to these pipes by subsidence caused by working the minerals, and that, in a fresh action, as often as the injury is caused. The damages thus accruing are not neces- sarily commensurate with the compensation to be received by the owner of the minerals. The one is not a condition precedent to the recovery of the other; they are independent rights and independent remedies." 467 THE ]^IETROPOLITAX PAVIXG ACT, 1817 {bl Geo. III. c. XXIX.). An Act for better pdvin;], improcing, and regulatimj the Streets of the Metropolis, ond removing and preventing Xiiisances and Obstructions therein. ri6tli June, 1817. This Act is commonl}- known as Michael Augelo Taylor's Act. Some sections of the Act have been held to be impliedly repealed by the Metropolitan Management Acts (c). The sections here discussed, and which deal with the taking of land, are still in force. 80. And be it further enacted, that for the improvement sect. so. of the streets and public places in the parochial or other stree'tT^ay districts within the jurisdiction of this Act, and for the be widened pul)lic advantage, it shall and may be lawful to and for wTth Smsent the commissioners or trustees, or other persons having the ^^ owners. control of the pavements of any parochial or other district, from time to time, and at all times hereafter, to alter, widen, turn, or extend any of the streets or other public places within any such parochial or other district (except turnpike roads), and to lengthen and continue or open the same from the sides or ends of any streets or puljlic places within any parochial or other district, into any other street or public place within such or any other parochial or other district, and to raise, level, lower, drain, ballast, gravel, or pave such new part or parts of any such streets or public places so altered, widened, extended, opened, or lengthened as aforesaid ; and that if any houses, walls, buildings, land.s, tenements, and hereditaments, or any part thereof, shall l3e adjudged by the said commissioners or trustees, or other persons as aforesaid, to project into, obstruct, or prevent them from so altering, turning, widening, extending, lengthening, continuing, or opening the said streets or (r) FortescAie v. .S7. Matthex-, Bdh„(d Green [1891], 2 Q. B. 170 ; 60 L. J. M. C. 172 ; 65 L. T. 256 ; 55 J. P. 758; Summers v. HoJhorn Board of Worls [1893], 1 Q. B. 612; 62 L. J. M. C. 81 ; 68 L. T. 226; 41 W. E. 445 ; 5 E. 284 ; 57 J. P. 326 ; Wyatt v. Genu [1893]. 2 Q. B. 225 ; 62 L. J. M. C. 158 ; 69 L. T. 456; 42 W. E. 28; 5 E. 507 ; 57 J. P. 665 ; Keep v. St. Martin's, Neicinyton [1894], 2 Q. B. 524; 63 L. J. Q. B. 369 ; 70 L. T. 509 ; oS J. P. 748. 30—2 468 Code of the Law of Compensation. Sect. 80. public places within the sairl parochial or other district, and that the possession, occupation, and purchase of such houses, walls, buildings, lands, tenements, or hereditaments will be necessary for that purpose, it shall and may be lawful to and for the said commissioners or trustees, or other persons as aforesaid, and they shall have full power and autliority to treat, contract, and agree, or to employ any person or persons to treat, contract, and agree with the several owner or o^vners, occupier or occupiers of all such houses, walls, buildings, land.s, and hereditaments, of whatsoever nature, tenure, kind, or quality, for the purposes aforesaid, and to pay for the same such sum and sums of money as shall be agreed upon by the said commissioners or trustees, or other persons as aforesaid, and the owner or owners, occupier or occupiers thereof, out of the money to arise and be raised and to be received by them, either by virtue of any local Act or Acts of Parliament relating to such parochial or other district, or of this Act, and to pull down, use, sell, or dispose of such houses, walls, and build- ings, and the materials thereof, and lay the sites thereof, and also such other lands, tenements, or hereditaments, or so much thereof as they the said commissioners or trustees, or other persons as aforesaid, shall think proper, into the said streets or other public places ; and all such new parts of such streets or public places, and the owners and occu- piers of houses and buildings, messuages, and other here- ditaments therein and adjoining thereto, shall be subject and liable to all the rates, assessments, powers, provisions, orders, clauses, and things to be made by virtue of or con- tained in any local Act or Acts of Parliament relating to such parochial or other district, or by virtue of or contained in this Act, in the same manner as the present streets and public places included in any such local Act or Acts, or within the jurisdiction of this Act, and the owners and occupiers of houses or buildings and messuages or other hereditaments therein and adjoining thereto. Corporation ARTICLE 1. — The local authority cannot adjudge the whole of a cannot take piece of land or the whole of a house necessary when thev only the whole of a . j j j piece of land requu'e a part for the intended improvement. if onlv Djirt is required. Iii anneiiinga said commissioners or trustees or other persons having the ^"^"''' control of the pavements of any streets or public places in any parochial or other district Avithin the jurisdiction of this Act, or with any person or persons authorised i)y them, for the sale and conveyance of their respective estates and interests therein, or cannot be found or known, or shall not produce and evince a clear title to the premises they are in po.ssession of, or to the interest they claim tlierein, to the satisfaction of the said commissioners or trustees or other persons as aforesaid, or of the person or persons so authorised by them, then and in every such case it shall be lawful for the said commissioners or trustees or other persons as aforesaid, and they are hereby required, to issue a warrant or warrants, precept or precepts, directed to the sheriff or sheriffs, or bailiff or other proper officer of the city, borough, or county wherein the premises shall respectively lie or be, who is hereby authorised, directed, and required accordingly to impannel, summon, and return a competent number of substantial 472 Code of the Law of Compensation. Sect, 82. and disinterested persons qualified to serve on juries, not less tlian forty-eight nor more than seventy-two ; and out of such persons so to be impannelled, summoned, and returned, a jury of twelve men shall be drawn by some indifferent person to be by the said commissioners or trustees or other persons as aforesaid appointed, in such manner as juries for the trial of issues joined in His Majesty's Courts at Westminster are by an Act made in the third year of the reign of His late Majesty King George the Second, intituled An Act for the better Regu- wbo are to be lation of Juries, are directed to be drawn ; which persons ?Geo!ii. so to be impannelled, summoned, and returned as afore- c. 25, directs, f^aid, are hereby required to come and appear before the justices of the peace for the city, borough, or county wherein the premises shall lie or be, at some Court of general or quarter sessions of the peace to be holden in and for the same city, borough, or county, or at some adjourn- ment tliereof, as in such warrant or warrants, precept or precepts, shall be directed and appointed, and to attend such Court of oeneral or quarter sessions from day to day Jurymen may Until discharged by the said Court ; and all parties be challenged. cQi^eerned shall and may have their lawful challenges against any of the said jurymen, but shall not be at liberty to challenge the array ; and the said justices are herel)y authorised and empowered, by precept or precepts, from time to time as occasion shall require, to call before them all and every person and persons whomsoever who shall be thought proper and necessary to be examined as a witness or witnesses on his, her, or their oath or oaths. Justices, on touching or concerning the premises ; and the said uon?/either justices, if they think fit, shall and may, on the application party, may of either iDartv, likewise authorise the said jury to view the direct Ji view x*/-^ ^ ^ ••! of the place or places or premises m question, m such manner as premises. ^^^qj g\^^\i ^bi^ect ; and the said justices shall have power to adjourn such Court from day to day as occasion shall require, and to command such jury, witnesses, and parties to attend until all such affairs for which they were Jury to assess summoned shall be concluded; and the said jury upon oath!^^"*^ ^"^ tlieir oaths (which oaths, as also the oaths of such person or persons as shall be called upon to give evidence, the said justices are hereby empowered and required to administer) shall inquire of the value of such houses, buildings, lands, tenements, or hereditaments, and of the proportionable value of the respective estates and interests of all and every person and persons seized or possessed The Metropolitan Var'unj Act, 1817. 473 tlipreof, or interested therein, or of or in any part or parts Sect. 82. tliereof, and shall assess and award the sum or sums of money to he paid to such person or persons, party or parties respectively, for the purchase of such houses, buildings, lands, tenements, or hereditaments, and of such respective estates and interests therein, and also fur good- will, improvements, or any injury or damage what- soever that may affect an}' such person or persons, party or parties, either as leaseholders or tenants at will, pro- vided that such good-will shall be estimated by what, in the opinion of such jury, the same would have been worth in case the improvements intended by this Act had not l:)een in contemplation ; and the said justices shall and may give judgment for such sum or sums of money so to be assessed ; which verdict or verdicts, and the Verciic^uf die judgment or judgments, determination and determinations be final,'' thereupon, (notice in writing being given to the person or P|^^J^g"^^^gj^„ persons interested or claiming so to be, at least fourteen given to the days before the time of the meeting of the said justices P^^;^'^^^ as aforesaid and jury, by leaving such notice at the dwelling house of sucli person and persons, or at his, her, or their last usual place or places of abode, or with some tenant or occupier of the premises respectively intended to 1:)e valued), shall be binding and conclusive to all intents and purposes whatsoever against all bodies politic, cor- porate, and collegiate, and all and every person and persons claiming any estate, right, title, trust, use, or interest in, to, or out of such houses, buildings, lands, tenements, or hereditaments and premises in possession, reversion, remainder, or expectancy, as well infants and issue un1)orn, lunaticvS, idiots, and femes covert, and. persons under any other legal incapacity or disal)ility, as all other cestuique trusts, their, his, and her heirs, successors, executors, and administrators, and against all other persons whomsoever ; and the said verdicts, judgments, and determinations, and all other proceedings of the said justices and juries, so to Ije made, given, and pronounced as aforesaid, shall be fairly written on parchment, and signed by the clerk of the peace for the time being of the city, borough, or county wherein the premises shall respectively Jie or be ; and in case it shall so happen that if the sum the sum or sums of money so to be assessed and awarded ^Jt'^eSmithe in consequence of such refusal to treat and agree as sum offered, aforesaid, as the value of such houses, buildings, lands, tenements, or hereditaments, or as such proportional value 474 Code of tlic Lmv of Compensation. S3Ct, 82. the costs of such assess- ment, kc. , to be paid by such body politic, &.C., and the com- missioners, kc, may retain the same out of the sum so assessed. Claimant not entitled to his costs of trial. as aforesaid, and as the recom})ense and satisfaction to be made for the injury or damage sustained as Ijefore mentioned respectively, shall not exceed the sum or sums of money which the said commissioners or trustees, or other persons aforesaid, or any person or persons autho- rised by them, shall have previously offered to pay as and for such value, recompense, and satisfaction ; then and in every such case all the reasonable costs, charges, and expenses of causing and procuring such value and recom- pense to be assessed and awarded as aforesaid, and also assessing and awarding the same, shall be borne and paid by the body or bodies politic, corporate, or collegiate, or other person or persons so seized or possessed of or interested in such houses, buildings, lands, tenements, or hereditaments, and so refusing to treat and agree as before mentioned respectively ; and the said commissioners or trustees, or other persons as aforesaid, are hereby authorised and empowered to deduct and retain the said costs, charges, and expenses out of the sum or sums of money so to be assessed or awarded as aforesaid, or out of any part thereof: Provided always, that in all cases where any person or 2)ersons shall by reason of absence have been prevented from treating about such recompense or satisfaction as aforesaid, such costs and charges shall be borne and paid by the said commissioners or trustees, or other persons as aforesaid, in manner aforesaid. ARTICLE 1. — Under this Act a claimant is not entitled to Ms costs where compensation has been assessed by a jury. This was decided in lieg. v. London Justices {in). It is another instance of a casus omissus and is a great hardship on a claimant. Wright, J., in the case cited said that the Act ought to be amended in this respect. As it stands, the landowner has to pay the costs of the assessment if the jury do not award more than the amount oifered ; whereas if no amount is offered he is not entitled to any costs. Sect. 83. .Justices cm- powered to impose fines for non- attendance. 83. And be it further enacted, that the said justices sliall liave power from time to time to impose any reason- al)h' fine, not exceeding the sum of twenty pounds, on such sheriff or bailiff, or his deputy or deputies, bailiffs or agents respectively, making default in the premises, and on any of the persons who shall be summoned and returned on any such jury or juries, and shall not appear, without sutiicient excuse, or appearing shall refuse to be sworn on the (/n) [1895], 1 Q. B. 881 ; 64 L. J. M. C. 186; 72 L. T. 564 ; 43 W. E. 590. The Metropolitan raving Act, 1817. 475 said jury or juries, or being so sworn sluill not give Lis or their sect^s. verdict ; and also on any person or persons who shall ha summoned to give evidence touching any of the matters ai,ij v. I'oi'e <1882), 52 L. J. U. B. 629; 32 W. E. 134. 490 Code of the Law of Compensation. Sect. 135. because the access to his premises is thereby rendered less ■ — convenient. So held in Jlcrr'vvj v. MctropoUtaii Board of fJ'ovLs (s). Tower to erect ARTICLE 4.— The County Council may, with the consent of the h^t^\ ti ^'"^ Admiralty, erect works in the soil or bed of the river Thames. Thames. This power was not conferred by sect. 135, but by sect. 2 of the Main Drainage A.ct (21 & 22 Vict. c. 104), subject to the consent of the Admiralty, as required by sect. 27 {t). The County Council have now the powers of the Metropolitan Board of Works, upon whom the power was originally conferred. # # # # # sect^5o. ;^5Q j^ ^i^^iy y^^ j.^^^.f^^^ f^^, ^j^^ j\retropolitan Board of Power to AYorks and every district board and vestry to ^^urchase, or vestries^to ^^ take on Icase for sucli term as they may think fit, any purchase hmd, or any right or easement in or over any Liud which thepurpose.r t^^cy may deem necessary or expedient for the formation of this Act. Qj. protection of any \Yorks which tliey are authorised to execute under this Act, also any offices and other buildings, yards, stations, or places for deposit of refuse, materials, and thino-s, or anv land for the erection and formation of such offices and other 1)uildings, yards, stations, or places for deposit ; and also to contract for the purchase, removal, or abatement of any milldam, pound, weir, bank, wall, lock, or other o1)struction to the flow of water, whereby sewer- age or drainage is interrupted or impeded, and for the purchase of any land, or any right or easement in or over any land, which it may l^c necessary or expedient to pur- chase to prevent the oljstruction of sewerage or drainage ; and also to purchase or take on lease as aforesaid the whole or any part of any streams or springs of water, or any rights therein, which it appears to them necessary to acquire and use for the purposes of cleansing sewers and drains and the other purposes of this Act, or any land which is deemed by them advisable to purchase or take on lease for the purpose of drawing or obtaining water from s})rings, or by sinking of wells, and for making and pro- viding reservoirs, tanks, aqueducts, watercourses, and other works, or for any other purpose connected with the works for obtaining such supply of water as aforesaid : Provided always, tliat nothing herein contained shall authorise the said Metropolitan Board, or any district board or vestry^ («) (1865), 19 C. B. N. S. 510 ; 34 L. J. M. C. 224 ; ante. p. 166. (t) Jlroiruloir V. Miirup„i;ta)t Ih.aH <>f Wurls (1864), ;}3 L.J. C. P. 233; 12 W. E. 871. The Metropolis MaiKvieweiit Act, 1855. 491 to use or permit to be used any siicli works for the purpose sect.iso. of carrying water by supply pipes into any house or factory for domestic, manufacturing, or commercial purposes. 151. For the purpose of enabling the said Metropolitan sect. isi. Board, and every district l)oard and vestry, to obtain any certainpro- land, or any right or easement in or over any land, which l¥*^„"y?* they respectively may recjuire for the purposes of this Act, c. is, incor- "The Lands Clauses Consolidation Act, 1845," except the popted^th provisions of that Act with respect to the recovery of for- feitures, penalties, and costs, shall, subject to the provisions herein contained, be incorporated with this Act ; and the provisions of the said Act so incorporated with this Act which would be applicable in the case of a purchase of any land shall be applicable in the case of the purchase of a right or easement in or over any land ; and for the pur- poses of this Act the expression "the promoters of the undertaking," wherever used in the said Lands Clauses Consolidation Act, shall mean the Metropolitan Board, or the district board, or vestry, acting under the provisions of the said Act and this Act, as the case may be. 152. Provided always, that the provisions of the said ^^'^^- ^5^- Lands Clauses Consolidation Act "with respect to the Lands not to purchase and takinor of lands, otherwise than by ao-ree- be taken com- ment" shall not be incorporated with this Act, save for except by enabling the Metropolitan Board of Works to take land, BoaJd wiih" or any right or easement in or over land, for the purpose consent of of making any sewers or works for preventing the sewage state!'^^^^ or any part of the sewage within the metropolis from passing into the Thames in or near the metrojDolis, or otherwise for the purpose of the sewerage or drainage of the metropolis : Provided also, that no land, or right or easement in or over land, for the purposes aforesaid, shall be taken compulsorily 1)y the said Board, without the previous consent in writing of one of Her Majesty's Principal Secretaries of State. 153. The Metropolitan Board of Works, before applying sect. 153. for the consent of the Secretary of State for taking land, previous or any right or easement in or over land compulsorily, as ^9^}^^ *^ ^^ aforesaid, shall publish, once at the least in each of four consecutive weeks, in one of the daily newspapers puljli.shed in the metropolis, an advertisement describing the nature of the works in respect of which the land, right, or easement 492 Code of tlw Lair of Compensation. Sect. 153. is proposed to be taken, naming a place where a plan of the proposed works is open for inspection at all reason- able hours, and stating the (quantity of land or the particu- lars of the right or easement that they require for the purpose of such works, and shall serve a notice on the owners or reputed owners, lessees or reputed lessees, and occupiers of the land intended to be taken, or of the land in or over which fcuch right or easement is intended to be taken, such service to be made four weeks previously to the application to such Secretary of State, and such notice shall state the particulars of the land, right, or easement so required, and that the ^letropolitan Board are willing to treat for the purchase thereof, and as to the compensation to be made for the damage that may be sustained Ijy reason of the proposed works. Sect. 154. 154. The Metropolitan Board of Works, and any district Powe7to"cii^- ^^oard or vestry, may sell and dispose of any land pur- pose of lands chased by them under this Act, and any property whatso- nofwanlea. ^vcr vestcd in them under this xVct, which it may appear to them may be properly sold or disposed of ; and for completing and carrying any such sale of any laud into effect such board may make and execute a conveyance of the land sold and disposed of as aforesaid unto the pur- chaser, or as he shall direct, and such conveyance shall be under the seal of the said board or vestry ; and the word " grant " in such conveyance shall have the same operation as Ijy the said Lands Clauses Consolidation Act, IS 45, is given to the same word in a conveyance of lands made by the promoters of the undertaking ; and a receipt under the seal of the said board or vestry shall be a sufficient dis- charge to the purchaser of any such land or any other such property as aforesaid for the purchase- money in such recei})t expressed to be received ; and the money arising from such sale of any land purchased und(n- this Act, and (except as herein-after otherwise provided) of any such ])roperty, shall be ap})lied in aid of the rate out of which the expenses of the purchase of such land or providing such property have been or are authorised to l)e defrayed under this Act; and tlic money arising from the sale of any property vested in any such board or vestry under this Act, and which, before becoming so vested, was vested in any connnissioners or other body, or in any officer of any commissioners or other body, or in any surveyor of high- ways, shall be applied in or towards the discharge of any The J\[etwpoIis Manacjcment Act, 1855. 493 debts or liaLilities for the discharge whereof rates are l»y sect. 154. this Act authorised to be raised in the parish, or part, to the commissioners or other body for the management of the paving, lighting, or cleansing whereof such property may have belonged before the commencement of tliis Act, and, suljject as aforesaid, shall be applied in aid of such rate to be raised under this Act in such parish or part as to the board or vestry disposing of such property may seem just ; and any such l)oard or vestry may let any land purchased by or vested in them under this Act, and which for the time being is not required for the purposes thereof, in such manner and on such terms as such board or vestry may see fit. 155. Provided always, that where any land or any right Sect. 155. or easement in or overland is purchased by the said Metro- o\vneisof politau Board, or anv district board or vestry, under this ifindmayon X ^ •■ . . sulc reserve n. Act, it shall be lawful for the owners of or parties entitled right of to sell or convey such land, right, or easement to reserve pre-emption. upon the sale thereof to such board or vestry in and by the conveyance such right of pre-emption to the person for the time being entitled to the land (if any) from which the land so purchased was severed, or in or over which such right or easement is granted, as is provided by sections 128, 129, and 1 30 of the said Lands Clauses Consolidation Act ; but, except where such right of pre-emption is so reserved, there shall be no such right, notwithstanding the incorporation of the said Lands Clauses Consolidation Act with this Act. Appeals. 211. Any person who deems himself aggrieved Ijy any Sect. 211. order of any vestry or district board in relation to the level roweTTo of any building, or any order or act of any vestry or appeal a?ains district board in relation to the construction, repair, altera- acts of' tion, stopping or filling up, or demolition of any Iniilding, ^^^estms nnd sewer, drain, watercloset, privy, ashpit, or cesspool, may, boards in within seven days after notice of any such order to the construction occupier of the premises affected thereby, or after such act, of works. appeal to the Metropolitan Board of Works against the same : and all such appeals shall stand referred to the committee appointed by such board for hearing appeals as herein provided ; and such committee shall hear and determine all such appeals, and may order any costs of such a})peals to be paid to or l)y the vestry or district 494 Code of the Ldic of Compensation. Sect. 211. Sect. 225. Coinjiensa- tion, damage, and expenses — how to be ascertained and recovered. Sect. 226. Method of proceedini,' before ju.stices in questions of damaucs, ice. Ijoard Ijy or to the party appealing, and may, where they see fit, award any compensation in respect of any act done by any such vestry or district board in relation to the matters aforesaid ; Provided that no such compensation shall be awarded in respect of any such act which may have been done under any of the provisions of this Act on any default to comply with any such order as aforesaid, unless the appeal be lodged within seven days after notice of such order has been given to the occupier of the premises to which the same relates. ^/^ ^ ^ *?? -y? 225. In every case where the amount of any damage, co.sts, or expenses is by this Act directed to be ascertained or recovered in a summary manner, or the amount of any damage, costs, or expenses is by this Act directed to be paid, and the method of ascertaining the amount or enforcing the payment thereof is not provided for, such amount shall, in case of dispute, be ascertained and deter- mined by and shall be recovered before two justices; and the amount of any compensation to be made under this Act by the said Metropolitan Board, or any vestry or district board, shall, unless herein otherwise provided, be settled, in case of dispute, by and shall be recovered before two justices, unless the amount of compensation claimed exceed fifty pounds, in which case the amount thereof shall be settled by arbitration, according to the provisions contained in the Lands Clauses Consolidation Act, 1845, which are applicable where questions of dis- puted compensation are authorised or required to be settled by arbitration. 226. Where the amount of any compensation, or of any damage, costs, or expenses, is to be determined by or to be recovered before two justices, it shall be lawful for any justice, upon the application of either party, to summon the other party to appear before two justices, at a time and place to be named in such summons ; and upon the appearance of such parties, or, in the absence of either of them, upon proof of due service of the summons, it shall be lawfid for such two justices to hear and deter- mine the matter, and for that purpose to examine such parties, or any of them, and their witnesses, on oath, and make such order, as well as to costs as otherwise, as to them may seem just. ^ ^ ^ TP ^ 405 THE METROPOLIS ]\IANAGEMENT ACT, 18G2 (25 & 26 Vict. c. 102). An Act to aiiuntd tJte Metropolis Local 2Iana(jcincnt Acts. [7tli August, 1862. ^^ # # # # 22. Tlie compulsory powers of taking land given to the sect. 22. said Metropolitan Board bv the firstly recited Act, and the ^ " Lands Clauses Consolidation Act, 1845," shall, subject to Metropolitan the conditions and restrictions in the firstly recited Act f'0=i[^'/o ^'"^'^e 1 , ,, Til i""!- laiKls tor contanied, extend and be applicable to tiie taking of any roads, \:c. lands which they may require fur the purpose of makiuo- convenient roads or ways to or in connexion with any sewers or works vested or hereafter to be vested in the said Board, or which they may recjuire for making roads or ways during the construction of any sewerage works, or for spoil Ijanks or places of deposit of surplus earth or other materials in the execution of any such works. 25. It shall be lawful for the said Metropolitan Board to sect. 25. make and maintain any bridges, arches, culverts, passages, ^^ ~~' -. , 1 ?i • 1 o 1 T , ° Formation or roads over, under, or by the sides 01 or leading to or and mainten- froiii any sewerao-e works constructed or to be constructed f".^f °^ by them, which they may deem necessary and convenient arches, cui- for jDreserving the communications between lands through ^^^''^' '■^^' which the said works may have been or may be made or carried ; Provided that it shall be lawful for the said board to contract and agree with the owners and occupiers of lands to pay them or any of them compensation in lieu of making or maintainino; such bridu-es or other works. * # # # # 32. " Whereas it is in and by the firstly recited Act sect. 32. provided that the Metropolitan Board of Works shall from ^ — . ;:. . . -, ^ 1 /i> • • Coniimiiuci- time to time, in order to secure the emcient maintenance tions between of the main and general sewerage of the metropolis, make j^jg^J^i^nJ;^ such general or special orders as to them may seem proper parishes or for the guidance, direction, and control of the vestries of p.Jfvaient of'^ parishes and district boards in the levels, construction, compensa- alteration, maintenance, and cleansing of sewers in their co:l&ide*iat\on respective parishes or districts, and for securing the proper thereof. 496 . Code of tlie Law of Compensation. Sect. 32. connexion and intercommunication of the sewers of the several parishes and districts, and their communications with the main sewers vested in the said Metropolitan Board, and generally for the guidance, direction, and control of vestries and district boards in the exercise of their powers and duties in relation to sewerage, and all such orders shall be binding upon such vestries and boards : " Be it enacted, that whenever the said Metropolitan Board shall, in exercise of the said power, have ordered that any sewer or sewers vested in the vestry, district Ijoard, or other body acting for any parish or place comprised in the schedules of the firstly recited Act, having control over the sewers in one parish, district, or part, shall, for the purpose of outfall or otherwise, be connected with any sewer or sewers vested in the vestry or district board of another parish, district, or part, or other body having control over the sewers in such l)arish, district, or part, it shall be lawful for the vestry, district board, or other body, for the drainage of whose parish, district, or part such connexion shall be required, and at whose instance and request such order shall have been made to execute all necessary works as well within their own parish, district, or part as within any other parish, district, or part which shall be specified in the said order of the Metropolitan Board for effecting such con- nexion : Provided that every communication to be made by any vestry, district board, or other body with any sewer out of their own parish, district, or part shall be made under the supervision and to the satisfaction of the board, vestry, or other body having control over such last-mentioned sewer ; and where it shall appear to the said Metropolitan Board to be equitable and just, under the circumstances of the case, that any vestry, board, or other body so connect- ing their sewers with the sewers vested in another vestry, district board, or other body should pay such last-mentioned vestry, board, or body any compensation or remuneration, cither in one sum or l)y yearly or other payments, for the use of their sewer, it sliall l)e lawful for the said Metro- poUtan Board to order and direct paj'ment of such com- ])ensation or remuneration accordingly, and the vestry, board, or other l)0(ly to whom any such payment shall be directed to Ix' made may recover the same from the vestry, board, or body directed l)y such order to make such pay- ment, either by action at law or before a justice of the peace in a sunnnary manner. be submitted to companies. Tlic Mrtropolis ManatjcDwnt Act, 1802. 497 34. Where any works authorised by this or the recited sect. 34. Acts will interfere with any railway or cancal, the board or pian7&^,of vestry proposing to construct such works shall before com- JI'^'J^^J^J^^^*' mencing the same give notice in writing of their intention orWnaisto so to do to the company owning such railway or canal, and shall, together with such notice, deliver a plan and section showing the nature of such interference ; and if within seven days after the receipt of such notice the company shall by writing, addressed to the board or vestry, ol)ject to the manner in which it is intended to interfere with such railway or canal respectively, on account of the probal)le interruption or endangering of the traftic thereon, the same works shall not be commenced ; and it shall thereupon be referred to an engineer, to be appointed by the Board of Trade, on the application of either party, to determine the manner of executing the said works, and the determination come to by such engineer shall be binding on both parties. 35. Provided always, that it shall not be lawful for any sect. 35. board or vestry to alter the level of any railway or canal, Lineof raii- unless with the consent of the company owning the same ^^^^^^^ *° ^® respectively, or, if that be refused, with the consent of the Board of Trade ; and provided also, that nothing in this Act contained shall take away or aftect the right of any railway or canal company to compensation for the taking or injuriously affecting of any land or property of such company, or for or by reason of the interruption of any traffic on their railway or canal, or for any damages, costs, or expenses with such company may be required to pay in consequence of such interruption. L.C. 32 498 THE METROPOLIS MANAGEMENT (THAMES RIVER PREVENTION OF FLOODS) AMENDMENT ACT, 1879 (42 & 43 Vict. c. cxcyiil). An Act to amcntJ tlic Mctrojiolis JldUdneiiuiit Act, 1855, and the Acts (unendiufi the same, so far as relates to the Pro- tection of the Metropolis from Floods and Inundations caused hij the Ocerdow of the Biver Thames ; and for other Purposes. " ' [Utli August, 1879. # # 4^ # # I'reliminarij. Sect. 1. 1. This Act may for all purposes be cited as the Metro- Shoruitie polis ^laiiagement (Thames River Prevention of Floods) Amendment Act, 1879. Sect. 2. 2. In the construction of this Act the following words inteipreta- and cxprcssions have the following meanings, unless tion of terms, excluded by the subject or context; (that is to say,) The expression " the principal Act " means the Metro- polis Management Act, 1855, as amended by the i9&^20Vict. Metropolis Management Amendment Act, 1856, and 25&"26 Vict. the Metropolis Management Amendment Act, 1862 : c- 102. i;iie expression " the Secretary of State " means one of Her Majesty's Principal Secretaries of State : The expression " the Board " means the Metropolitan Board of Works : The expression "person" includes any corporation, whether ao-crresjate or sole : The expression " river Thames " includes the rivers, streams, and watercourses within the flow and re-flow of the tides of the said river within the limits of this Act : The expression " bank " and the expression " dam " includes any bank, wall, fence, wharf, dock, lock, gate, sluice, dam, or defence, or ap[)liance, whether of a moveable, temporary, fixed, or permanent character, for the protection of lands within the limits of this Act from floods or inundations caused by the overflow of the river Thames : The expression "flood works" means the entire or })artial The Metropolis Management {Prevention of Floods) Act, 1879. 499 construction, alteration, reconstruction in the same or Sect. 2. any altered position of any bank, and the repairing-, raising, strengthening, improvement, or removal of any bank, and the enlargement, contraction, raising, lowering, arching over, improvement, or alteration of any sewer, channel, or watercourse, and the discon- tinuance, closing up, or destruction of any such sewer, channel, or watercourse necessary for the protection of lands within the limits of this Act from floods or inundations caused by the overflow of the river Thames : The expression " lands " includes messuages, buildings, erections, banks, lands, tenements, and hereditaments of any tenure, and rights and easements in, over, under, or in respect of the same : The expression "street," in addition to the meaning assigned to the same term by the principal Act, includes the carriageway of any turnpike road and any county bridge and any place laid out as a street: The expression " premises " includes lands and streets : The expression "owner" means (except where otherwise expressly provided) the person for the time being receiving the rackrent of the lands or premises in connexion with which the word is used, whether on his own account or as agent or trustee for any other person, or would so receive the same if such lands or premises were let at a rackrent, and includes any commissioners, trustees, or other persons or person in whom the premises in connexion with which the said word is used are vested, or who are charged with the control or management of the same. 3. The limits of this Act shall extend to the metropolis sect. 3. as defined by the principal Act. Limits of Act. 4. The principal Act, as amended by this Act, and this sect. 4. Act shall be read and construed together as one Act. consto^tion of Acts. :i4= # * * * 14. The Board, the Commissioners of Sewers of the sect. 14. City of London, the vestry of any parish, the board of powers for works for any district, or any owner of premises, in the execution of _ •/ „ -, 1 • 1 -.A j.\ nood works. execution of any flood works, m accordance with the pro- \dsion3 of this Act, may carry the same through, along, 32—2 600 Code of the Laic of Compensation. Sect. 14. across, or under any street, or through, along, across, or under any celhir or vault which may be under the pave- ment of any street, and into, through, along, across, upon, or under any lands, and may for such purpose enter upon any such cellar, vault, and lands, and any premises in the vicinity of or adjoining the same or connected therewith, compensation being made for any damage done thereby in manner provided by this Act. Sect. 15. 15. Where for the purpose of executing any flood works T, , in accordance with the provisions of this Act it is in the JrOWGrs or -1 Board to take opinion of the Boaixl necessary that the Commissioners of lands. Sewers of the City of London, the vestry of any parish, the l)oard of works for any district, or any owner of premises liable under this Act to provide for the execution of such works, should take and use any premises not vested in them or subject to their control or management, or of which they or he are or is not the owner, or that the Board for the purpose of executing such works in place of them or him should take and use such last- mentioned premises, then and in every such case the Board may take and use any such last-mentioned premises which may be required for the purpose of executing such works, and the Board shall for such purpose have and may exercise all the powers of taking land conferred upon the Board by the principal Act in relation to the taking of lands for works for the purpose of the sewerage or drainage of the metropolis. For the purposes of notices required by the principal Act to be served upon owners or reputed owners of lands before applying for the consent of the Secretary of State to the taking of lands compulsorily, the term " owner " shall, in I'elation to premises to be taken for the purposes of this Act, have the same meaning as in the Lands Clauses 8&9Vict. Consolidation Act, 1845. ^' ^^' When the Board have taken any premises under the authority of this Act, they may by writing under their seal authorise the commissioners of sewers, the vestry of any parish, the board of works for any district, and any owner to take or use the same for the execution of any flood Avorks in accordance with the provisions of this Act, and thereupon such commissioners, vestry, district board, or owner may for such purpose take and use such premises or any of them, and shall in respect of the same have all and the same powers as though they or he were or was the Board. The Metropolis Management {Prevention of Floods) Aet, 1879. 501 16. For the puqDose of executing any works under the Sect. le. authority of this Act, the Board, the Commissioners of pow^^ con- Sewers of the City of London, the vestry of any parish, struct flood the board of works for any district, and any owner of shores and bed premises liable to execute flood works, may, subject to the of the river provisions of this Act, construct any such works througli, along, over, or under the bed andi5oil and banks and shores of the river Thames : Provided always, that no such work shall be constructed in or upon the bed or shore of the river Thames as defined by the Thames Conservancy Act, 20&2ivict. 1857, except with the permission of the conservators of the ^•^^^™- said river, and under a license to be granted by the said conservators in accordance with the provisions of the said last-mentioned Act. ^ w tP tP tP 18. For the purpose of giving effect to the ^^rovisions of sect. is. this Act, any engineer, surveyor, district surveyor, or other p^^-^T^in person duly authorised in writing by the Board or l)y the spect lands. Commissioners of Sewers of the City of London, or by the vestry of any parish, or by the board of works for any district, or by any owner of premises liable to execute flood works, or tlie owner of such premises, may enter upon any premises upon which any works executed or to be executed by them or him in pursuance of this Act are or will be situate, for the purpose of inspecting or taking surveys of the same, at any time l)et\veen the hours of nine o'clock in the forenoon and four o'clock in the afternoon ; and if any person during such hours refuses to allow such engineer, surveyor, district surveyor, or other officer or person, or any such owner, to enter upon any such premises, or obstructs him in the making of such inspection or survey, such person shall be liable to a penalty not exceeding ten pounds, and to a further penalty not exceeding five pounds for every day after the first day during which he so continues to act in contravention of this Act. Compensation. 25. Any person or body who claims compensation for Sect. 25. any damage caused by the execution of any flood works ^jode"©^ under the authority of this Act, or in respect of any lands ascertaining or any interest in lands taken or used for the purposes of or compensation 502 Code of the Law of Compensation. Sect. 25. for damages caused by execution of flood works, &c. injuriously affected by the execution of flood works under the authority of this Act, may claim such compensation from the Board ; and if such person or body and the Board do not agree with respect to such claim, then and in every such case the validity of such claim and the amount of compensation (if any) payable in respect thereof shall, on the application of either party, be determined by arbitration by the standing arbitrator herein- after referred to, subject to and in accordance with the provisions of this Act, and such provisions shall be in substitution for the provisions with respect to the tribunal for determining the settlement of questions of disputed compensation contained in the principal Act or any Act incorporated therewith, and the amount of compensation payable in respect of any such claim, wlien agreed upon or determined as aforesaid, shall be paid by the Board as though the same were compensa- tion payable in respect of lands taken under the authority of the principal Act : Provided always, that the owner or occupier of any lands shall not be entitled to any compen- sation on account of the execution by himself or by any other person or body of any flood works for which such owner is in pursuance of this Act liable to provide upon any lands of which he is the owner or occupier unless after the execution of such works such lands are permanently injuriously affected thereby, and then only to the extent of such permanent injury. Sect. 26. 26. When any claim is made for compensation under the T>.,v.T7^f authority of this Act the standing arbitrator shall have standing power to dccidc upon the validity oi such claim, and to to^amoun^of determine what (if any) compensation shall be made to the compensation, persou or l)ody making such claim, and in adjudicating upon such claim the standing arl)itrator shall have regard to the nature of the flood works with respect to which the claim has arisen, the manner in which the same have been executed, the benefit (if any) which has accrued or which may reasonably be expected to accrue to the person or body making such claim by reason of the execution of such works, and generally to all the cir- cumstances of the case ; and the standing arbitrator may, in determining the compensation to ])e paid for any lands or interest in lands taken or injuriously affected under the authority of this Act, according as he shall think fit, include in or exclude from such compensation an allowance in respect of the com}»ulsory powers of this Act, and he may make The Mdropolis Mamnjeincnt {Vrci-cntion of Floods) Act, 1879. 503 such order as to the payment of the costs of such arl)itra- Sect. 26. tiou wholly or in part l>y the Board or the claimaut, as he shall think just. 27. For the purpose of determining the validity of sect27. claims for compensation and the amount of compensation Appointment payable in respect of any claim declared to be valid by "^i.^tfrator.^ this Act directed to be settled by arbitration, there shall be an arlntrator, in this Act called the " standing arbitrator," appointed and acting as follows ; (that is to say,) (1.) The Secretary of State shall before the 31st day of December in the year 1879, and before the same day of December in every third succeeding year, by writing under his hand appoint a standing arbitrator and fix the remuneration to be paid to him, and every person so appointed shall continue in ofhce for three years from such 31st day of December in such years respectively : (2.) Any standing arbitrator may be removed from his ofhce by the Secretary of State l)y writing under his hand : (3.) If any standing arbitrator during his term of office dies or resigns or is removed from office, the Secretary of State shall in manner aforesaid, within one month after notice of his death or resignation or removal, appoint another person to be a standing arbitrator in his place, and the person so appointed shall continue in office as long only as the person in whose place he is appointed would have been entitled to continue in office : (4.) The remuneration of the standing arbitrator shall be paid l)y the Board : Before any standing arbitrator enters upon the duties of his ofiice he shall in the presence of a justice make and subscribe the following declaration ; (that is to say,) " I, A.B., do solemnly and sincerely declare that I will faithfully and honestly, and to the best of my skill and ability, hear and determine all matters which may from time to time be referred to me under the provisions of the Metropohs Management (Thames River Prevention of Floods) Amendment Act, 1879. And if the standing arbitrator having made such declara- tion vv'ilfuUy acts contrary thereto, he shall be guilty of a misdemeanor. )04 Codr of tlie Lair of Compensation. Sect, 27. If any reference is pending before a standing arbitrator at the time when he resigns or goes out of office by effluxion of time, it shall nevertheless be proceeded with by him, and his decision shall have the like effect as if he had not resigned or o'one out of office. Sect. 28. 28. The standing arbitrator shall appoint a place and Proceeding's ^^^^^ ^^^' ^^^ hearing of any matter coming before him, and before stand- shall causc six days' previous notice thereof to l)e given in mg arbitrator, ^^^^j^ manner as he shall think proper, and at such place and time shall consider such matter and hear the parties appear- ing by themselves, their counsel, solicitors, or agents, and take evidence, and the standing arlntrator may administer an oath or an affirmation (where an affirmation in lieu of an oath would be admitted in a Court of justice) to any person before hearing any evidence from him, and may admit the affidavit or declaration of any person. The standing arbitrator, on the application of any party, may by summons require the attendance before him of any person to be examined as a witness before him, and may, on the like application, by summons require any person to bring before him all books, papers, and writings in his possession, custody or control relating to any matter to ])& inquired into l)y the standing arbitrator. Every person so summoned shall attend the standing arbitrator and answer all questions touching the matter to be infjuired into, and bring and produce all papers, books, and writings required accordmg to the tenor of the summons ; and every such person not attending in ol)edience to such summons, or refusing to answer such questions, or failing to bring or produce such papers, books, and writings as aforesaid, shall be lialtle, if the standing arbitrator shall so order, to a penalty not exceeding fifty pounds : Provided that any person so summoned shall not be bound to obey the summons unless a reasonable sum is first paid or tendered to him for his expenses. If any person on examination on oath or affirmation before the standing arbitrator, or in any affidavit or declaration used before the standing arbitrator, wilfully gives false evidence, he shall be deemed guilty of perjury. In case any party fail to appear at the time and place ap})ointed for the hearing of any matter by the standing arbitrator, the standing arl)itrator may proceed with the hearing of sufh matter in the absence of such [)arty. 505 The Metropolis Management {rrcventhn of Floods) Act, 1879. The decision of the standing arbitrator in any arbitration sect^s. under this Act shall be final and binding upon the parties to such arbitration. No award made by the standing arbitrator m accordance with this Act shall be set aside for any irregularity or informality. 506 THE LOCAL GOVERNMENT ACT, 1888 (51 & 52 Vict. c. 41). An Ad to amend the Laws relating to Local Government in England and Wales and for other purposes connected therewith. [I3tli August, 1888. '.C # # # # Sect. 65. 65. — (1.) A county council may, from time to time, PoweTto fo^' t^® purpose of any of their powers and duties, including acquire lands, tliosc wliicli are to be cxccutcd tbrough the standing joint committee, acquire, purchase, or take on lease, or exchange any lands or any easements or rights over or in land, whether situate within or without the county, and may acquiie, hire, erect, and furnish such halls, buildings, and offices as they may from time to time require, whether within or without their county. (2.) For the purpose of the purchase, taking on lease or exchange of such lands, sections one hundred and seventy- six, one hundred and seventy-seven, and one hundred and seventy-eight of the Public Health Act, 1875, shall apply as if they were herein re-enacted, and in terms made applicable to the county council. (3.) AVliere the county council, with the consent of the Local Government Board, sell any land, the proceeds of such sale shall be applied in such manner as the said Board sanction towards the discharge of any loan of the council, or otherwise for any purpose for which capital may be applied by the council. '3^ w 'iv W 'T? 507 THE LOCAL GOVERNMENT ACT, 1894 {oG & 57 XiCT. c. 73). An Act to malr furtlwr pwrision for Local (lovernmcnt in England and W(dcs. ' [5th Mtireli, 1894. 9. — (1.) For the purpose of the acquisition of Luid by a sect. 9. parish council the Lands Chauses Acts shall 1)e incorporated po^grsTor Avith this Act, except the provisions of those Acts with acquisition of respect to the purchase and taking of land otherwise than ^'^'^*^^' by agreement, and section one hundred and seventy-eight of the Public Health Act, 1875, shall apply as if the parish 38 & soviet, council were referred to therein . ^" ■'■^' (2.) If a parish council are unable to acquire l)y agree- ment and on reasonable terms suitable land for any purpose for which they ai-e authorised to acquire it, they may represent the case to the county council, and the county council shall inquire into the representation. (3.) If on any such re})resentation, or on any proceeding under the Allotments Acts, 1887 and 1890, a county r.o&oivict. council are satisfied that suitable land for the said purpose ss^l'^^yict of the parish council or for the purpose of allotments (as c. 65. the case may be), cannot be acquired on reasonable terms by voluntary agreement, and that the circumstances are such as to justify the county council in proceeding under this section, they shall cause such public inquiry to 1)6 made in the parish, and such notice to be given both in the |)arish and to the owners, lessees, and occupiers of the land proposed to be taken as may be prescribed, and all persons interested shall be permitted to attend at the inquir}', and to support or oppose the taking of the land. (4.) After the completion of the inquiry, and considering all objections made by any persons interested, the county council may make an order for putting in force, as respects the said land or any part thereof, the provisions of the Lands Clauses Acts with respect to the purchase and taking of land otherwise than by agreement. (5.) If the county council refuse to make any such order, the parish council, or, if the proceeding is taken on the petition of the district council, then the district council, 508 Code of the Law of Compensation. Sect. 9. may petition the Local Government Board, and that Board after local inquiry may, if they think proper, make the order, and this section shall apply as if the order had been made bv the county council. Any order made under this sub-section overrulino; the decision of the county council sliall be laid before Parliament by the Local Government Board. (6.) A copy of any order made under this section shall be served in the prescribed manner, together with a state- ment that the order will become final and have the effect of an xA.ct of Parliament, unless wdthin the prescribed period a memorial by some person interested is presented to the Local Government Board praying that the order sliall not become law without further inquiry. (7.) The order shall l)e deposited with the Local Govern- ment Board, who shall inquire whether the provisions of this section and the prescribed regulations have been in all respects complied with ; and if the Board are satisfied that this has been done, then, after the prescribed period — (a) If no memorial has been presented, or if every such memorial has been withdrawn, the Board shall, without further inquiry, confirm the order : (b) If a memorial has been presented, the Local Govern- ment Board shall proceed to hold a local inquiry, and shall, after such inc_[uiry, either confirm, with or with- out amendment, or disallow the order : (c) Upon any such confirmation the order, and if amended as so amended, shall become final and have the effect of an Act of Parliament, and the confirmation by the Local Government Board shall be conclusive evidence that the requirements of this Act have been complied with, and that the order has been duly made, and is within the powers of this Act. (8.) Sections two hundred and ninety-three to two hundred and ninety-six, and sub-sections (1) and (2) of section two hundred and ninety-seven of the Public Health Act, 1875, shall apply to a local inc[uiry held by the Local Government Board for the purposes of this section, as if those sections and sub-sections were herein re-enacted, and in terms made applicable to such inc[uiry, (9.) The order shall be carried into effect, when made on the petition of a district council, by that council, and in any other case by the county council. (10.) Any order made under this section for the purpose of the purchase of land othcrwi.se than l)y agreement shall The Local GovcrninnU Act, 1894. 509 incorporate the Lands Clauses Acts and sections seventy- Sect. 9. seven to eiolity-five of the Eailways Chiuses Consolidation 8 & o vict. Act, 1845, with the necessary adaptations, but any question c. :^o. of disputed compensation shall l»e dealt with in the manner provided by section three of the Allotments Act, 1887, and provisoes (a), (1)), and (c) of sub-section (4) of that section are incorporated with this section and shall apply accord- ingly : Provided that in determining the amount of disputed compensation, the arljitrator shall not make any additional allowance in respect of the purchase being compulsory. (II.) At any in(|uiry ur arbitration held under this section the person or persons holding the inquiry or arbi- tration shall liear any authorities or parties interested by themselves or their agents, and shall hear witnesses, but sliall not, except in such cases as may be prescriljed, hear counsel or expert witnesses. (12.) The person or persons holding a puljlic inquiry for the purposes of this section on behalf of a county council shall have the same powers as an inspector or inspectors of the Local Government Board when holding a local inquiry ; and section two hundred and ninety-four of the Public Health Act, 1875, shall apply to the costs of inquiries held by the county council for the purpose of this section as if the county council weve substituted for the Local Government Board. (13.) Sub-section (2) of section two, if the land is taken for allotments, and, whether it is or is not so taken, sub- sections (5), (6), (7), and (8) of section three of the Allot- so & si vict. ments xlct, 1887, and section eleven of that Act, and ^''^^' section three of the Allotments Act, 1890, are incorporated 53&54Vict. with this section and sJiall, with the prescribed adaptations, ^' ^''' apply accordingly. (14.) Where the land is acquired otherwise than for allotments, it shall Ije assured to the parish council ; and any land purchased by a county council for allotments under the Allotments Acts, 1887 and 1890, and this Act, or any of them, shall be assured to the jjarish council, and in that case sections five to eight of the Allotments Act, 1887, sliall apply as if the parish council were the sanitary authority. (15.) Nothing hi this section shall authorise the parish council to acquire otherwise than by agreement any land for the purpose of any supply of water, or of any right of w^ay. (l6.) Li this section the expression "allotments" allotments. 610 Code of the Law of Compensation. Sect. 9. includes common pasture where authorised to be acquired under the Allotments Act, 1887. (17.) Where, under the Allotments Act, 1890, the Allot- ments Act, 1887, applies to the purchase of land by the county council, that Act shall apply as amended by this section, and the parish council shall have the like power of petitioning the county council as is given to six parliamen- tary electors by section two of the Allotments Act, 1890. (18.) This section shall apply to a county borough with the necessary modifications, and in particular with the modification that the order shall be both made and con- firmed Ijy the Local Government Board and shall be carried into effect by the council of the county borough. (19.) The expenses of a county council incurred under this section shall be defrayed in like manner as in the case of a local inquiry by a county council under this Act. Sect. 10. 10. — (1.) The parish council shall have power to hire Hiring~of ^^i^^ for allotments, and if they are satisfied that allotments land for are recjuircd, and are unable to hire by agreement on reasonable terms suitable land for allotments, they shall represent the case to the county council, and the county council may make an order authorising the parish council to hire compulsorily for allotments, for a period not less than fourteen years nor more than thirty-five years, such land in or near the parish as is specified in the order, and the order shall, as respects confirmation and otherwise, be subject to the like provisions as if it were an order of the county council made under the last preceding section of this Act, and that section shall apply as if it were herein re-enacted with the substitution of " hiring " for "purchase " and with the other necessary modifications. (2.) A single arbitrator, who shall be appointed in ac- cordance with the provisions of section three of the Allot- ments Act, 1887, and to whom the provisions of that section shall apply, shall have power to determine any question — (a) as to the terms and conditions of the hiring ; or (b) as to the amount of compensation for severance ; or (c) as to the compensation to any tenant upon the determination of his tenancy ; or (d) as to the apportionment of the rent between the land taken l)y the parish council and the land not taken from the tenant ; or (e) as to any other matter incidental to the hiring of the The Load Govcrunwut Art, 1894. 511 laud Ijy the council, or tlie surreuder thereof at the sect, lo. end of their tenancy ; but the arbitrator in fixing the rent shall not make any addition in respect of compulsory hiring. (3.) The arbitrator, in fixing rent or other compensation, shall take into consideration all the circumstances connected with the land, and the use to which it might otherwise be put by the owner during the term of hiring, and any depreciation of the value to the tenant of the residue of his holding caused by the withdrawal from the holding of the land hired by the parish council. (4.) Any compensation awarded to a tenant in respect of any depreciation of the value to him of the residue of his holding caused by the withdrawal from the holding of the land hired by the parish council shall as far as possil)le be provided for by taking such compensation into account in fixing, as the case may require, the rent to l^e paid by the parish council for the land hired by them, and the appor- tioned rent, if any, to be paid by the tenant for that portion of the holding which is not hired by the parish council. (5.) The award of the arbitrator, or a copy thereof, together with a report signed by him as to the condition of the land taken by the parish council, shall be deposited and preserved with the public books, writings, and papers of the parish, and the owner for the time being of the land shall at all reasonable times be at liberty to inspect the same and to take copies thereof. (6.) Save as hereinafter mentioned, sections five to eight of the Allotments Act, 1887, shall npply to any allot- ment hired by a parish council in like manner as if that council were the sanitary authority and also the allotment managers : Provided that the parish council — (a) may let to one person an allotment or allot- ments exceeding one acre, but, if the land is hired compulsorily, not exceeding in the whole four acres of pasture or one acre of arable and three acres of pasture ; and (b) may permit to be erected on the allotment any stable, cowhouse, or barn ; and (c) shall not break up, or permit to be broken up, any permanent pasture, without the assent in writing of the landlord. (7.) On the determination of any tenancy created by compulsory hiring a single arbitrator, who shall be appointed 612 Code of tlie Law of Compensation. -Sect. 10. ill accordance with the provisions of section three of the Allotments Acts, 1887, shall have power to determine as to the amount due by the landlord for compensation for im- provements, or by the parish council for depreciation, but such compensation shall be assessed in accordance with the 46 & 47 Vict, provisions of the Agricultural Holdings (Englaiid) Act, 1883. c. 61. (^8.) The order for compulsory hiring may apply, with the prescribed adaptations, such of the provisions of the Lands Clauses Acts (including those relating to the acquisition of land otherwise than by agreement) as appear to the county council or Local Government Board sufficient for carrying into efiect the order, and for the protection of the persons interested in the land, and of the parish council. (9.) Nothing in this section shall authorise the com- pulsory hiring of any mines or minerals, or confer any right to take, sell, or carry away any gravel, sand, or clay, or authorise the hiring of any land which is already owned or occupied as a small holding within the meaning of the 55 & 56 Vict. Small Holdings Act, 1892. <=-3i- (10.) If the land hired under this section shall at any time during the tenancy thereof by the parish council be shown to the satisfaction of the county council to be required l)y the landlord for the purpose of working and getting the mines, minerals, or surface minerals thereunder, or for any road or work to be used in connection with such working or getting, it shall be lawful for the landlord of such land to resume possession thereof upon giving to the parish council twelve calendar months' previous notice in writing of his intention so to do, and upon such resumption the landlord shall pay to the parish council and to the allotment holders of the land for the time being such sum by way of compensation for the loss of such land for the purposes of allotments as may l)e agreed upon by the landlord and the parish council, or in default of such ao-reement as may be awarded by a single arbitrator to be appointed in accordance with the provisions of section three of the Allotments Act, 1887, and the provisions of that section shall a})[)ly to such arbitrator. The word "landlord" in this sub-section means the ])erson for the time being entitled to receive the rent of the land hired l)y the parish council. (11.) The Local Government Board shall annually lay before Parliament a report of any proceedings under this and the preceding section. * # * * * 513 THE PUBLIC HEALTH ACT, 1875 (38 & 39 YiCT. c. 55). An Ad for consoUdafiiKj (lud amcnd'uKj the Acta rdatimj to FuhJic Hccdth in Ennland. [lltli August, 1875. Purchase of Lands. 175. Any local authority may for the purposes and sect. i75. subject to the provisions of this Act purchase or take on poweTTo pur- lease sell or exchange any lands, whether situated Avithin chase lands. or without their district ; they may also buy up any water- mill dam or w^eir which interferes with the proper drainage of or the supply of water to their district. iVny lands acquired 1)y a local authority in pursuance of any powers in this Act contained and not required for the purpose for which they were acquired shall (unless the Local Government Board otherwise direct) be sold at the best price that can be gotten for the same, and the proceeds of such sale shall be applied towards discharge, by means of a sinking fund or otherwise, of any principal moneys which have been borrowed l)y such authority on the security of the fund or rate a])plicaljle by them for the general purposes of this Act, or if no such principal moneys are outstandino; shall be carried to the account of such fund or rate. ARTICLE 1. — Section 175 does not empower the Local Government Local Govern- Board to du-ect that lands acquired by a local authority and not ^^.^^^^ pmver required shall be applied permanently to any purpose inconsistent to direct land with that for which it was originally acquired. ^'^j. pumose^'^ So held in Attorney - General v. llanwell Urban District ^^^^^^^ Council (it). purpose. ARTICLE 2.— Where only part of land acquired by a local authority where only is immediately required for the purpose for which it was acquired, ^cq^ired^^s' while the remaining part will be ultimately required, the local immediately authority may not sell the vacant land under sect. 175. authority can- But they may retain the same, and use it for some other lawful remainder. purpose, such as a recreation ground or the like, provided care is in) [1900], 2 Ch. 377 ; 69 L. J. Ch. 626 ; 82 L. T. 778 ; 48 W. K. 690. L.c. 33 ■514 Code of the Law of Compensation. Sect. 175. taken to prevent any rights being acquired over it by the public or otherwise which would prevent or interfere with its use whenever required for the ultimate purpose for which it was acquired (x). When land ARTICLE 3. — A local authority are not entitled to the subsoil of a the pllbTic!^ street, where the surface of the land has been dedicated to the public for a street. So held in Tunhridgc Wells {Mayor of) v. Baird (//), where the local authority required the subsoil for the construction of an underground urinal. Public Health ARTICLE 4. — With regard to mines, the Public Health Amend- ^'J'orates the ^^^^ '^^^' •^^^^' ii^corporates the mine clauses (sects. 18 to 27) of the mine clauses Waterworks Clauses Act, 1847. of the Water- works Clauses The Public Health Amendment Act, 1833 (z), which incorporates ' '■ the mine clauses of the Waterworks Clauses Act, 1847, was passed after the decision of the Court of Appeal in In re Corporation of Dudley (a), which decided that the Public Health Act, 1875, imposed on landowners, through whose land a sewer runs under the Act, an obligation to preserve support to such seAver, and that the mine owner was entitled to immediate compensation for being deprived of free power to work subjacent mines. Sect. .334 Section 334 of the Public Health Act, 1875, does not apply to to nuisances. ^^^^ working of mines, but only to nuisances (h). The exception ARTICLE 5. — A voluntary purchase by a local authority under the contained in p^^^j^ Health Act, 1875, is within rule 11 of Schedule I., Part I., of rule 11 of ' ' Schedule I., the general order under the Solicitors Remuneration Act, 1881. I'ai-t I., of the •leneral order A voluntary purchase by a local autliority is within this rule, Solici'tors^ Ke- ''ilthough the vendor is absolute owner, and although the agreement numeration contains a special clause stipulating that the purchasers shall bear .ni)])iics tn all the vendor's costs as between solicitor and client (r). voluntary Ptule 11 provides as follows : "In case of sales under the Lands purchases by ,^ • • i local Clauses Consolidation Act, or any other private or public Act under authority. which the vendor's charges are paid by the purchaser, the scale shall not apply." (x) Attornei/-(re)U'raI v. 7\(ldi))(/fon Urban District (^oniicU [189cS], 1 Ch. 66; 67 L. J. Ch. 23 ; 77 L. T. 426 ; 46 W. R. 88 ; 61 J. P. 825. 8ee also Attornnj- d'etieral v. Htn»lerlaml Corporation (1858), 1 Giff. 363 ; 29 L. J. Ch. 2S2 ;" 1 L. T. 155; 6 Jur. N. S. 46. (//) [1896], A. C. 4.34 ; 65 L. J. Q. B. 451 ; 74 L. T. 385 ; 60 J. P. 788. See also St.' Mary, Jiatfcrsca, v. LoniJoaand Jiru>^]i Proiv'iirial Electric Lirjltthaj Company [1899], 1 Ch. 474 ; 68 L. J. Ch. 238; 80 L. T. 31. (z) Post, p. 527. (a' (1882), 8 Q. B. D. 86 ; 51 L. J. Q. B. 121 ; 45 L. T. 733 ; 46 J. P. 340. (b) In re Cor/ioratlon of Dmllii/, sujtra, (v) Ju re Iinr. 181 ; 58 L. T. 522; 36 W. R. 468; 52 J. 1". 11!). If provisions of sect. 180 are not com- plied with award will be invalid. The I'uhlic Health Act, 1875. 521 and does not affect the jurisdiction of the Court under sect. 9 of the sect. 180. Arbitration Act, 1889. timeT^ond So held by the Court of Appeal in Kuoidcs and Sons v. Bolton J,'^;;] ^^i;^^'' Cornoration (i), overruling In re Mackenzie and A seat Gas Com- Aibitmtion \f1 COO '' o pany {k). It was decided in In re Yeadon Local Board and Yeadon "^ ' ' '^- • • WatcrnorLs Company (l) that an umpire cannot extend the time for making bis award beyond tbe two montbs fixed by sub- sect. 9 of sect. 180. Altbougb no original limit is specially mentioned in sect. 180 witbin wbicb an umpire must make bis award, yet by analogy to tbe original limit fixed in tbe case of arbitrators, an original limit of twenty-one days from tbe date of tbe reference to bim must be inferred to bave been fixed in tbe case of an umpire (;/0. ARTICLE 4.— If the arbitrator or umpire makes no order as to where arbi- costs, the Court will remit the award to him so that he may deal 1^''^^)'^°'' with them. neglect to (leal with the So beld in Peale v. Finchley Iah-cU hoard {n). costs. 181. All questions referable to arljitration under tliis Sect. 181. Act may, when tlie amount in dispute is less than twenty claims under pomids, be determined at the option of either party before J^^'JJJJy ^^^ a Court of summary jurisdiction, but the Court may, if it he referred to thinks fit, require that any work in respect of ^^■llicll the ^^^^^^ claim of the local authority is made and the particulars jurisdiction. of the claim be reported on to them ))y any competent surveyor, not being the surveyor of the local authority; mid the Court may determine the amount of costs incurred in that behalf, and by whom such costs or any part of them shall be paid. Part X. — Miscellaneous and Temporary Provisions. Miscelhoieou.s. 305. Whenever it becomes necessary for a local authority sect.^05. or any of their officers to enter examine or lay open any ^^try ou lands for pur- ,Tr -n. . . ^ poses of Act. (0 [19001, 2 Q. B. 253; 69 L. J. Q. B. 481 ; 82 L. T. 229; 48 W. E. 433 ; approving M'urlnirton v. llaslimjdvn Load Board (1879), 48 L. J. Q. K 451, in whicli ca.se Kellctt v. Tranmere Local Board (1804), 34 L. J. Q. B. 87 ; 14 L. T. 457, was dissented from. See also Lord. v. Lre (1868), L. E. 3 Q. B. 404 ; 9 B. & S. 269 ; 37 L. J. Q. B. 121 ; 16 AV. E. 856. (A) (1886), 17 Q. B. D. 114 ; 55 L. J. Q. B. 309 ; 34 W. E. 487. (/) (1889), 41 Ch. D. 52 ; 58 L. J. Ch. 563 ; 60 L. T. 550 ; 37 W. E. 360. (Hi) In re Ymdon Local Board and Yeadon Watcnvorks Company, trnpra. {>,) (1887), W. N. 203 ; 57 L. T. 882. 522 Code of the Jaiw of Comix'umt'ion. Sect. 305. lands or premises fortlie purpose of making plans sni'veyiug measuring taking levels making keeping in repair or examinino- works, ascertaining; the course of sewers or drains, or ascertaining; or fixino- boundaries, and the owner or occupier of such lands or premises refuses to permit tlie same to be entered upon examined or laid open for the purposes aforesaid or any of them, the local authority may, after written iiotice to such owner or occupier, apply to a Court of summary jurisdiction for an order authorising the local authority to enter examine and lay open the said lands and premises for the purposes aforesaid or any of them. If no sufficient cause is shown against tlie application the Court may make an order accordingly, and on such order being made the local authority or any of their officer^i may, at all reasonable times between the hours of nine in the forenoon and six in the afternoon, enter examine or lay open the lands or premises mentioned in such order, for such of the said purposes as are therein specified, without Ijeing su])ject to any action or molestation for so doing : Provided that, except in case of emergency, no entry shall be made or works commenced under tlii.s section unless at least twenty-four hours' notice of the intended entry, and of the object thereof, be given to the occupier of the premises intended to be entered. Justices are ARTICLE 1. -Upon an application by a local authority under this not entitled to section, the justices are not entitled, at the hearing, to review the review the . ... notice or to notice, nor to receive evidence on the part of the owner as to the receive sufficiency of the existing sanitary arrangements. existing saiii- gQ ijg]j jj^ HdhinsoH V. Sioiderhnid Corporation (o). tary arrange- '''.■. ARTICLE 2. — Section 305 does not enable a local authority to does not obtain an order where the owner refuses to permit an entry for the purpose of laying a sewer. enable a local authority to obtain entry jt y^as held ill Laiiiarroft V. St. Thomas Rural Sanitant for laying sewer. AiitJtoritij (ji) that sect. 305 does not apply to proceedings by a local authority under sect. 16 for the purpose of laying a sewer. Justices have ARTICLE 3. — Justices have no power to state a case on refusing l^t".,'™.!' on to make an order under sect. 305. mti-fi^*^ ^o held in Diss Vrtian Sauitani Author! ft/ v. Ahlrirh ((i), on the order. {») [1S99], 1 Q. B. 751 ; 68 L. J. Q. B. 3S0; SO L. T. 202; G3 J. P. 341. Ip) (1880), 42 L. T. ;5().i ; 44 J. P. 441. (7) llMT), 2 Q. B. D. 179; 40 L. J. M. C. 183; 30 L. T. 003; 41 J. P. u49. The Piihlic Health Act, 1875. 523 ground that the decision of the justices is not the determination of Sect. 305. a complaint within 20 & 21 Vict. c. 43, s. 2. 308. AVhere any person sustains any damage Ijy reason sect. 308. of the exercise of any of the powers of this Act, in rehition comi^ation to any matter as to which he is not himself in default, full J'l case of compensation shall be made to such person by tlie local ii':T^'*^ ^^"^ authority exercising such powers ; and any dispute as to '^"tiioiify. the fact of damage or amount of compensation shall be settled by arbitration in manner provided by this Act, or if the compensation claimed does not exceed the sum of twenty pounds, the same may at the option of either party be ascertained by and recovered before a Court of summary jurisdiction. ARTICLE 1. — Damages camiot be recovered under sect. 308 where, Damage can- apart from the Act, the claimant would have had no legal right "ovemMf to them. apart from the Act, claimant This is the same principle that apphes to the recovery of com- would have pensation under sect, 68 of the Lands Clauses Consolidation Act, t'o them""'^'^ 1845 (r). An arbitrator may take into consideration in making an award Damages iu the impossibility of building over a sewer, the defective construe- SthconXuc- tion of the sewer, and the fact that stenches will proceed there- ^^''^"^ '^^ ^ n , V sewer. n-om \ii). Prospective as well as actual damage must be taken into consideration (0 . ARTICLE 2. — An owner may recover compensation under sect. 308 Damages for for injiu-y caused by altering the level of the street. alt enug level So held iu lU'ij. v. IJ^iUase/j Local Board (u), under the corre- sponding section of the Public Health Act, 1848. But the words "by the exercise of any of the powers of the -'Powers of Act" do not apply to powers transferred by sect. 144 from the f^^V'to^*^*^ surveyor of highways to the board. So that where the level of the powers trans- (r) Hall V. 3laijo)- of Bristol (1867), L. E. 2 C. P. 322 ; 36 L. J. C. P. 110 ; 15 L. T. 572 ; 15 W. "E. 404 ; 31 J. P. 376 ; ILrrax/ v. Mdroi>olita)i Board of Works (1865), 19 C. B. N. S. 510; 34 L. J. M. C. 224 ; a),U, p. 166. {s) rtthijx. Todmordfu Local lloanl (1S74), 44 L. J. C. P. 19; 31 L. T. 445 ; 39 J. P. 56. it) Cnlac v. SnmmerfleJd [1893], A. C. 187; 62 L. J. P. C. 64; 68 L. T. 769. {k) (1869), L. E. 4 Q. 13. 351 ; 38 L. J. Q. B. 217 ; 21 L. T. 90 ; 17 W. E. 766. See also Xnttcr v. Acai/H/ton Local Board (1878), 4 Q. B. D. 375; 48 L. J. Q. B. 487; 40 L. T. 802; S,-llors v. Matlock Bath Local Board (1885), 14 Q. B. D. 928 ; 52 L. T. 762. ferred by sect. 144. 524 Code of tJw L((w of Compensation. Sect. 308. Where sewers bring down sand and silt into natural stream. Sect. 308 does not apply where local authority do an act causing a nuisance. Sewers nia^^ be carried above ground. road is altered by the board in pursuance of their duty as surveyors of highways, the owners of houses are not entitled to compensation {x). But where the sewers constructed by a local authority discharged into a natural stream belonging to a private person, and such sewers brought down great quantities of sand and silt into the stream, it was assumed they were liable to make compensation under sect. 308 {ij). ARTICLE 3.— Where the local authority do any act which amounts to a nuisance, the remedy of a landowner injured thereby is by action and not for compensation under sect. 308. In Sellors v. Matlock Bath Local Board {z) the defendants erected a i^ublic urinal partly upon a higliAvay and partly upon a strip of land belonging to the plaintiff, and so near to other adjoining land of the plaintiff as to be a nuisance to her and her tenants and to depreciate the value of her property. It was held that the plaintiff was entitled to a mandatory injunction to restrain the board from continuing the urinal upon her land or so near thereto as to cause injury or annoyance to her or her tenants. ARTICLE 4.— Sewers may be carried above ground on payment of compensation for the land taken. In llodcncli V. Aston Loccd Board (a) the local authority proceeded to carry their sewers through pleasure grounds belonging to the plaintiff, and on such a level that the bottom of the sewer would be only slightly below the surface, and a permanent embank- ment about six feet high would be made. It was held that they were authorised to do this, as the Act did not confine them to carrying a sewer underground. Jessel, M.E., said: " If what is done is equivalent to taking the whole of the land, the plaintiffs will get compensation for the whole of the land. If what is left is worth nothing, then the plaintiffs will get the full value. If what is left is worth anything, then they will get paid so much less, and may sell what is left, and so get the full value if they do not like to keep it. In what way the plaintiffs are injured I cannot see. They are only entitled to be paid for what they lose, that is, to be paid for the value of the whole of the lands minus the value of what they keep, and they can sell the remainder." (.r) Jliirgcss v. North inrli Load Board {\Sm), 6 Q. B. I). 2(i4 ; oO L. J. Q. B. 219 ; 44 L. T. 154 ; 29 AV. E. 931 ; 45 J. V. 25G. (//) Dnrront v. Jlra)d,:so)iv Urhnu Coioicil [1.S97], 2 Ch. 291 ; 66 L. J. Ch. ;'^^°';i^°'''^^^^i by Parliament and authorising the purchase of lands other- wise than by agreement under this Act ; the term " the limits of the Special Act " means the limits of the district ; and the urban or rural authority shall be deemed to be " the promoters of the undertaking," " the commissioners," or the " undertakers," as the case may be. All penalties incurred under the provisions of any Act incorporated with this Act shall be recovered and applied in the same way as penalties incurred under this Act. {b) Sivaiisfon v. Twickenham Local Board (1ST9), 11 Ch, D. 838; 48 L. J. Ch. 623 ; 40 L. T. 734 ; 37 W. E. 924. See also North London Uailwaii Compariii v. MetropoJifau Board of Works (1859), 28 L. J. Ch. 909; John. 405 ; 7 AV. R. 640; 5 Jur. N. S. 1121. ((■) (1884), 9 A. 0. 595 ; 54 L. J. Q. B. 25; 51 L. T. 577 ; 33 W. E. 56. See also East and West India Dock Company v. Gattke (1851), 3 M. & G. 155; 20 L. J. Ch. 217; 6 E. C. 371; 15 Jm\ 261; ante, p. 188; Beg. v. Bnrslem Local Board (1859), 1 E. & E. 1077; 28 L. J. Q. B. 345; 8 W. E. 584; 6 Jm\ N. S. 696; Bty. v. Coinmissioners of Hewers (1853), 1 E. & B. 391 ; 22 L. J. Q. B. 234 ; 17 Jiiv. 787 ; Bradhii v. Houthampton Local Board (1855), 4 E. & B. 1014 ; 24 L. J. Q. B. 239; 3 W. E. 413; 1 Jur N. S. 778; In re Walker and the Beckenham Local Board (1884), 50 L, T. 206 ; 48 J. P. 264. 526 THE PUBLIC HEALTH ACT, 1875 (SUPPORT OF SEWERS), AMENDMENT ACT, 1883 (4G & 47 YiCT. c. 37). An Act to amend the Fuhlic HeuJth Act, 1875, (nul to mole provision vitli respect to the Support of Piihlic Sewers and Sen-dfie D'orls in Mininu Districts. [25tli August, 1883. Be it enacted by the Queen's most Excellent ^lajesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Sect. 1. 1. This Act may be cited as the Public Health Act, shoi-rtit^ie 1875, (Support of Sewers,) Amendment Act, 1883, and and construe- shall he coustrued as one with the Public Health Act, tion. 1875, (in this Act called the jDrincipal Act,) as amended by the Acts for the time being in force amending the same. Sect. 2. 2. In this Act : Tlie expression " sanitary work " means any existino* or liitcri>rctci- X •/ v ,^ tion. future building or work constructed by or vested in or under the conti'ol of a local authority under the powers or for the purposes of so much of the principal Act or of any general or local Act or provisional order as relates to the construction or maintenance of any Avorks of sewerage, drainage, sewage disposal, light- ing, or water supply, and includes any fixtures, pipes, fittings, or apparatus connected with any such work, and belonging to or used by the local authority : The expression "support" includes vertical and lateral support : The expression " Sanitary Act " means the Act or pro- visional order under the authority of which a sanitary work has been or is constructed or is maintained, whether sucli Act or order was passed and confirmed l)efore or after the commencement of this Act : The expression " person " includes a body corporate. It will l)e observed from the definition of " sanitary work " in this section that the Act applies to other works besides sewers. It has a much more extended application than the title of the Act would indicate. The riihUc Health Art Amnuhneut Act, 1883. 527 3. The provisions of the Waterworks Clauses Act, 1847, sect. 3. sections eighteen to twenty-seven (both inclusive), with Appii^ion respect to mines, shall, in relation to any sanitar}^ work of |'f ''^'^'{^-^"^1. a local authority, be deemed to be incorporated with this works Clauses Act and with the Sanitary Act under the authority of f'y^^\^/Yict which such sanitary work has been or is constructed or c. i7, with is maintained, with the following modifications (that is '^iJef to*' to say) : sanitary (1.) For the purposes of such incorporation the said ^TneV''^^ provisions of the Waterworks Clauses Act, 1847, shall 1)6 construed as if the expression " the under- takers" referred to the local authority, and as if the expression '•' the Special Act" referred to such Sanitary Act and this Act, and as if expressions relating to pipes, conduits, or other works referred to the sanitary work : (2.) The local autliority, by or witli any notice under the Waterworks Clauses Act, 1847, of willingness to treat or make compensation, or of intention to prevent or interfere with the working of any mines, may specify and define the nature and extent of support which they recjuire to l)e left, and any such notice may extend to minerals beyond the distance of forty yards mentioned in the said Act or to such less distance as the local authority think fit : (3.) As regards sanitary works existing at the passing of this Act the local authority shall cause the survey and map referred to in section nineteen of the AYaterworks Clauses Act, 1847, to be made within twelve months after the passing of this Act : (4.) The amount of any compensation in respect of sup- port for a sanitary work payable by a local authority under the provisions of the Waterworks Clauses Act, 1847," as incorporated with this Act or the Sanitary Act, together with the costs of and incident to settling the same liy arbitration or otherwise, shall be paid, charged, and borne in the same manner, and subject to the same powers and provisions as to borrowing and otherwise, as is provided with respect to the expenses of the construction or maintenance of the sanitary work by the Sanitary Act : (5.) A local authority may from time to time make agreements with the owners, lessees, or occupiers of or the persons working any mine for compromising any claim made or to be made in respect of anything 528 ■ Code of the Law of Compensation. Sect. 3. clone or omitted before the passing of this Act in relation to the matters in this Act mentioned or otherwise for carrying into etiect the purposes of this Act in reh^tion to the past or future working of mines. The provisions of this Act shall apply to every sanitary work as defined in this Act, whether the land on, in, over, or under which such work is situate is or is not vested in or occupied by the local authority, and is or is not wholly or partially dedicated to the public as a street, highway, or public place. This Act was passed in consequence of the decision in In re Dtidh'ii Corjwndioii (d). This section places a local authority in the same position as regards mines and minerals as that of promoters under the Water- works Clauses Act, 1847 (e). Sewer above ARTICLE 1. — A sewei may be carried above ground. ground So held in Hod crick v. Aston Loccd Board (/'). Sect. 4. 4. Except as in this Act provided, a local authority shall X ■ TT" f not bv reason only of anythinoj contained in the Sanitary Limitation of J -, ' \ . r- -i ^ ^ • , i i i right to Act under the authority oi which a sanitary work has been samraiV*^^ or is Constructed or maintained be deemed to have acquired works over or to be entitled to or to be bound to acquire or make com- '"^°^^' pensation for any right of support for such sanitary work as against any person owning or working or being lessee or occupier of or entitled to work or otherwise interested in any mine ; and nothing in such Sanitary Act shall be deemed to have subjected or to sul)ject any such person to any liability to the local authority in respect of damage to a sanitary work caused in or consequent upon the working of any mines in a reasonal)le and proper manner. Sect. 5. 5. Nothing in this Act shall be construed to repeal. Saving invalidate, or affect any express enactment in a Sanitary or other Act with respect to rights of support for sanitary works, or any agreement made 1)efore the passing of this Act with respect to such rights, or to affect any action, (f/) (1882), 8 Q. B. D. 80; ^l L. J. Q. 15. 121 : 4.3 L. T. 733; -Hi J. V. 340; in}t(; pp. 405, 489. Jl4. (e) Ante, pp. 4<3() — 482. (/) (1877). o Ch. L). 32.S ; 40 L. J. Ch. 802 ; 30 L. T. 170, 328; 2j W. E. 40.3; aiiti-, p. .324. The PuhUc Health Ad Amendment Act, 1883. , 529 arbitration, or other legal proceedings concluded before or sect. 5. pending at the passing of this Act. Where any right of support has been acquired before the passing of this Act by a local authority in respect of any sanitary work, and no compensation is at the passing of this Act recoverable in respect of such right, nothing in this Act shall be construed to apply to the work in respect of which such right has been acquired, or operate to deprive the local authority of such right or to entitle any person to any com- pensation in respect thereof, to which such person would not have been entitled if this Act had not been passed. L.C. 34 530 THE ALLOTMENTS ACT, 1887 (50 & 51 Vict. c. 48). An Act to facilitate the Provision of Allotments for the Lahowiug Classes. [I6tli September, 1887. # * # # # Sect. 3. 3. — ( 1 . ) For the purposes of the purchase of land by agree- Acqi^i^onof Hieiit by a sanitary authority for allotments, section one land for pur- hundred and seventy-eight of the Public Health Act, 1875, 3r&39Vic't. •'^nd the Lands Clauses Consolidation Act, 1845, and the s'&l) vi ^^^^ amending the same, shall be incorporated with this c. 18. ' Act, except the provisions with respect to the purchase and taking of land otherwise than l3y agreement and with respect to the provision to be made for affording access to the Special Act. (2.) If a sanitary authority are unable by hiring or purchase by agreement to acquire suitable land sufficient for allotments under this Act for any district or parish at a reasonable price or rent and subject to reasonable con- ditions, such authority may petition the county authority of the county in w^hicli the district or parish is situate, and the county authority (after such inquiry and procedure as provided in the sections herein-after incorporated in this Act) may make a provisional order authorising the sanitary authority to put in force, as respects the land mentioned in the order, the provisions of the Lands Clauses Consoli- dation Act, 1845, and the Acts amending the same with respect to the purchase and taking of land otherwise than by agreement. (3.) The Local Government Board, on the application of any county authority, shall introduce into Parliament a bill confirming provisional orders made under this Act by such county authority, and the sanitary authority peti- tioning for the order shall be considered as the promoters of such order. (4.) For the purpo.se of the purchase of land under this section otherwise than by agreement, sections one hundred and seventy-six, two hundred and ninety-six, and two hundred and ninety-seven of the Public Health Act, 1875, shall, so far as consistent with the tenour of this Act, be incorporated Avith this Act, and aj^ply as if they were The Allotments Act, 1887. 531 herein re-enacted, with the substitution of " the county sect. 3. authority " for " the Local Government Board," and of " any officer of . the county authority appointed for the purpose of an inquiry" for "inspectors of the Local Government Board/' Provided that — (a) Any question of disputed compensation shall l)e referred to the arbitration of a single arbitrator appointed by the parties, or if the parties do not concur in the appointment of a single arbitrator, then, on the application of either of them by the Local Government Board, and the remuneration to be paid to the arbitrator appointed by the Local Government Board shall be fixed by that Board : (b) If an arbitrator appointed for the purposes of this Act dies or l)ecomes incapable to act before he has made his award, or fails to make his award within two months after he is appointed, his appointment shall determine, and tlie determination of the com- pensation shall be referred to another arbitrator appointed in like manner as if no arbitrator had been previously appointed : Provided always, that the same arbitrator may be re-appointed : (c) An arbitrator appointed under this section shall be deemed to be an arbitrator within the meaning of the Lands Clauses Consolidation Act, 1845, and the Acts amending the same, and the provisions of those Acts with respect to an arbitration shall apply accordingly ; and, further, the arbitrator, notwithstanding anything in the said Acts, shall determine the amount of the costs and shall have power to disallow as costs in the arbitration the costs of any witness whom he considers to have been called unnecessarily, and any other costs which he considers to have been incurred unnecessarily. (5.) In construing for the purposes of this section any section or Acts incorporated with this section, this Act, together with anv Act confirming a provisional order under this section, shall be deemed to be the Special Act, and the sanitary authority shall be deemed to be the local authority or the promoters of the undertaking, as the case requires, and the word "land" shall have the same meaning as in this Act. (6.) Where land is purchased by a sanitary authority under this Act otherwise than by agreement, the following- provisions shall apply : (a) The county authority shall not make a provisional 34—2 532 Code of the Law of Compensation. Sect. 3. order for purcliasing any park, garden, pleasure- ground, or other land required for the amenity or convenience of any dwelling-house, or any land the property of a railway or canal company which is or may be required for the purposes of their under- taking : (b) The county authority shall, in making a provisional order for purchasing land, have regard to the extent of land held in the neighbourhood by any owner and to the convenience of other property belonging to the same owner, and shall, so far as is practicable, avoid taking an undue or inconvenient quantity of land from any one owner. (7.) For the purpose of the hiring of land by a sanitary authority for allotments, any person or l)ody of persons or body corporate authorised to sell laud to the sanitary authority for the purposes of this Act may, without prejudice to any other power of leasing, lease land to the sanitary authority, without any fine or premium, for a term not exceeding thirty-five years. (8.) The county authority shall not make a provisional order for purchasing any right to coal or metalliferous ore. This Act must be read in conjunction with the Allotments Act, 1890, and the Local Government Act, 1894. This section is somewhat inconsistent with sect. 9 of the latter Act (g). •iU ■i/' Al' •it' 4£- ■7S" ^ •TS" TV "TV* Sect. 11. 11- — (!•) Where the sanitary authority are of opinion that — — any land acquired by them in pursuance of this Act or any fluous or"^'^"^' part thereof is no longer needed for the purpose of allot- unsuitabic ments, or that any other land more suitable for such purpose is available, they may, with the sanction of the county authority, sell or let such land or part, or exchange the same for other land more suitable for the said pur- pose, and may pay or receive money for equality of exchauG^e. (2.) The proceeds of a sale under this section and any money received by the sanitary authority on any such exchange as aforesaid by way of equality of exchange, shall be a])plied in discharging, either by way of a sinking- fund or otherwise, the debts and liabilities of the sanitary authority in respect of the land acquired under this Act, {;/) Aiitr. p. jOT. The AUntinriits Art, 1887. 583 or in acquiring, adapting, and improving other laud for sect. ii. allotments under this Act, and any surplus remaining may be applied for any jjurpose for which capital money may be applied, and which is approved by the Local Govern- ment Board ; and the interest thereon (if any) and any money received from the letting of the land may be applied in acquiring other land for allotments, or shall be applied in like manner as receipts from allotments under this Act are applicable : Provided that any such proceeds, surplus, interest, and money shall, in the case of a rural sanitary district, be credited to or applied for the benefit of the parish for which the land was purchased. (3.) Sections one hundred and twenty-eight to one hundred and thirty-two (both inclusive) of the Lands Clauses Consolidation Act, 1845 (relatino: to the rieht of pre-emption of superfluous lands), shall apply upon any sale by a sanitary authority in pursuance of this section of any land, whether because it is no longer needed for the purpose of allotments, or because other land more suit- able for the purpose is available, but save as aforesaid, the provisions of the Lands Clauses Consolidation Act, 1845, with respect to the sale of superfluous lands shall not be deemed to be incorporated in this Act, or in any provisional order made under this Act. 12. Where it appears to any sanitary authority that, sect. 12. as regards their district, if urban, or any parish in their pow^ district, if rural, land can be acquired for aflbrding common make scheme pasture at such price or rent that all expenses incurred by of commoT" the sanitary authority in acquiring the land and otherwise pasture, in relation to the land when acquired may reasonably be expected to be recouped out of the charges paid in respect thereof, and that the acquisition of such land is desirable in view of the wants and circumstances of the labourinof population, such sanitary authority may submit to the county authority for the county in which the district or parish is wholly or partly situate, a scheme for providing such common pasture, and the county authority, if satisfied of the expediency of such scheme, may by order authorise the sanitary authority to carry it into efl'ect, and upon such order being made this Act shall, with the necessary modifi- cations, apply in like manner as if " allotments " in this Act included common pasture, and "rent " included a charge for turning out an animal. Provided that the regulations made under this Act may 534 Code of the Laiv of Coinpeiisufion. Sect. 12, extend to reo-ulatiuo; the turiiino- out of animals on the common pasture, to defining the persons entitled to turn them out, the number to 1je turned out, and the conditions under which animals may be turned out, and fixing the charges to be made for each animal, and otherwise to regulating the common pasture. tP •«■ '35' ^'? w 535 THE ^[ARKETS AND FAIRS CLAUSES ACT, 1847 (10 & 11 YiCT. c. 14). An Act for consolidating in one Act certain Provisions usualhj contained in Acts for constructing or rer/ulating Marlcts and Fairs. ' " [2ar(l April, 1847. # # # # # And with respect to the construction of the market or fair, sect. 6. and the works connected thei'ewith, he it enacted as follows: construction 6. Where by the Special Act the undertakers shall be fairs to be" °^ empowered, for the purpose of constructino- the market or subject to the n ■ , I ^^ -, .1 . 1^ -11 provisions of tan-, to take or use any lands otherwise thau with the con- this Act and sent of the owners and occupiers thereof, they shall, in 2^^^,^^^ . . . ■'■ 11- 1 Lands Clauses exercising the power so given to them, be sur)ject to the Consolidation provisions and restrictions contained in this Act and in the ^^^^' ^^'^■^' Lands Clauses Consolidation xlct, 1845, when the Special Act relates to England or L'eland, and to the provisions and restrictions contained in this Act and the Lands Clauses Consolidation (Scotland) Act, 1845, when the Special Act relates to Scotland ; and the undertakers shall make to the owners and occupiers of and all otlier parties interested in any lands taken or used for the purposes of tlie Special Act, or injuriously aftected by the construction of the works thereby authorised, full compensation for the value of the lands so taken or used, and for all damao;e sustained by such owners, occupiers, and other f)ersons Ijy reason of the exercise, as to such lands, of the powers vested in the undertakers by this or the Special Act, or any Act incorporated therewith ; and, except where other- wise provided by this or the Special Act, the amount of such compensation shall be determined in the manner provided by the said Lands Clauses Consolidation Acts respectively for determining cjuestions of compensation with regard to lands purchased or taken under the pro- visions thereof; and all the provisions of the said last- mentioned Acts respectively shall be applicable to deter- mine the amount of any sucli compensation, and to enforce payment or other satisfaction thereof. 7. If any omission, mis-statement, or wrong description Sect^T. shall have been made of any lands, or of the owners, lessees, Enoi-s and omissions in 536 Cock of the Law of Compensation. Sect. 7. special Act, or schedules thereto, may be corrected by justices, &c.. who shall ceitify the same. Certificate to be deposited. or occupiers of any lauds, described or purporting to be described in the Special Act, or in the schedule thereto, the undertakers, after giving ten days' notice to the owners, lessees, and occupiers of the lands affected by such proposed correction, may apply in England or Ireland to two justices, and in Scotland to the sheriff, for the correction thereof; and if it appear to such justices or sheriff that such omis- sion, mis-statement, or wrong description arose from mistake, they or he shall certify the same accordingly, and shall in such certificate state the particulars of any such omission, mis-statement, or wrong description ; and such certificate shall be deposited in England or Ireland with the clerk of the peace, and in Scotland with the sherifi' clerk of the county in which the lands affected thereby shall be situated, or, where any such lands are situated in a royal burgh in Scotland, with the town clerk of such burgh ; and such certificate shall be kept by such clerk of the peace, sheriff clerk, or town clerk with the other documents to which they relate, and thereupon the Special Act or schedule shall be deemed to be corrected according to such certifi- cate ; and the undertakers may make the works in accord- ance with such certificate as if such omission, mis-statement, or wrong description had not been made. 8. Copies of any such alteration or correction thereof, or extracts therefrom, certified by any such clerk of the peace, sherift" clerk, or town clerk in whose custody the same may be, which certificate such clerk shall give to all parties interested when required, shall be received in all Courts of justice and elsewhere as evidence of the contents thereof. Sect. 9. 9. The undertakers, in addition to the lands authorised A.kiiu^ai ^^ ^^ taken compulsorily, or to be appropriated by them lands may be for tlic purposcs of the market or fair, under the powers of extmordinary ^^^^^ ^'^^'^^ the Special Act, may appropriate any lands vested purposes. iji them, or may contract with any person willing to sell the same for the purchase of any land within the limits of the Special Act, not exceeding in the whole the prescribed number of acres for extraordinary purposes; (that is to say), For providing slaughter-houses (if the undertakers shall l)e authorised by the Special Act to provide slaughter- houses), and houses and places for weighing carts : For making convenient roads and approaches to the market or fair : For any other purpose which may be necessary for the formation or convenient use of the market or fair. Sect. 8. Copies of alterations, &c., to be evidence. The Madets and Fairs Clauses Act, 1847. 537 10. Subject to the provisions in this and the Special Act sect, lo. and any Act incorporated therewith, the undertakers for the und^rt^ers, purpose of constructing^ a ijhace for hokling the market or ^^ubject to fan- may execute any of the lollowmg works ; (that is to say,) this and the Tliey may enter upon any hinds described in the Special ^^^y'^^^'^^fg Act, or the schedule thereto, and other lands purchased the works by them or belonging to them, and set out such parts ^^erem named, as they think necessary for the purposes of the market or fair, and thereupon from time to time build and maintain such market places or places for faii-s, and such stalls, sheds, pens, and other l)uildings or con- veniences for the use of the persons frequenting the market or foir, and for weighing and measuring goods sold in the market or fair, and for weighing carts, as they may think necessary : They may from time to time on such lands as aforesaid make and maintain all such roads and approaches as they may think necessary for the convenient use of the persons resorting to the market or fair. ARTICLE 1. — The undertakers are not restricted to land required All land de- fer a market-house, if the land taken is described in the schedule schedule may and plan. ^'"^ taken. So held in Richards v. Scarhorough Public Market Comimny (Ji), where the undertakers, the defendants, took the whole land of the plaintiff and erected a building in addition to the market-house authorised by the special Act. 11. Provided always, that in the exercise of the powers sect^ii. by this or the Special Act granted the undertakers shall do Undertakers as little damage as can be, and shall make full satisfaction, Jactio?fof^^" in manner herein and by the Special Act and any Act damage done, incorporated therewith provided, to all parties interested, for all damages sustained hj them by reason of the exercise of such powers. ^ * # * And with resi3ect to slaughter-houses, be it enacted as Skiuf/Jito-- f> T, houses. lollows : :5J: # * # :^ SeCt. 18. 18. Provided that nothing in this or the Special Act, or xothl^to any Act incorporated therewith, shall protect the under- protect under- / i . „ . ^ (. ,1 takers from an takers from an indictment lor nuisance, or irom any otner indictment legal proceeding, in respect of any such slaughter-house as ^^^ nmsance. aforesaid. ^ # # # =* {!>) (1853,1 23 L. J. Ch. llU. 538 THE HAKBOUES, DOCKS, AND PIERS CLAUSES ACT, 1847 (10 & 11 YiCT. c. 27). All Ad for consoUdating in one Ad certain Provisions usually contained in Acts authorisinq the maldrnj and irnprovimj of Harhours, Doclcs, and Piers. [lltii May, 1847. # Sect. 6. Constnictlon of Iiurhom; (locl{, or p'icr. Construction of harbour, dock, or pier to be subject to the provi- sions of this Act and one of the Lands Clauses Con- solidation Acts. And Avitli respect to the construction of the harbour, dock, or pier, be it enacted as follows : 6. Where by the Special Act the undertakers shall be empowered, for the purpose of constructing the harl)Our^ dock, or pier, to take or use any lands otherwise than with the consent of the owners and occupiers thereof, they shall, in exercising the power so given to them, be subject, if the harbour, dock, or pier be situate in England or Ireland, to the provisions and restrictions contained in this Act and in the Lands Clauses Consolidation Act, 1845, and if the harbour, dock, or pier be situated in Scotland to the pro- visions and restrictions contained in tliis and in the Lands- Clauses Consolidation (Scotland) Act, 1845; and the under- takers shall make to the owners and occupiers of and all other parties interested in any lands taken or used for the purposes of this or the Special Act, or injuriously affected by tlie construction of the works thereby authorised, full compensation for the value of the lands so taken or used, and for all damage sustained by such owners, occupiers, and other parties by reason of the exercise as regards such lands of the powers vested in the undertakers by this or the Special Act, or any Act incorporated thei-ewith, and, except where otherwise provided by this or the Special Act, the amount of such compensation shall be ascertained and determined in the manner provided l)y the said Lands Clauses Consolidation Acts for determining questions of compensation with regard to lands purchased or taken under the provisions thereof, and all the provisions of the last-mentioned Acts shall l)e applicable to determining the amount of any such compensation, and to enforcing the payment or other satisfaction thereof. The Harhours, Docks, and Piers Clauses Act, 18-17. 539 ARTICLE 1.— The expression " harboui', dock, or pier, and the works sect. 6. connected therewith," includes " quays, wharves, and warehouses.'' .. H-irixmr Per Liudley, L.J., in London Association of Shijwwners v. anfth'e'iorks London and India Docks Joint Committee (i). connected therewith. 7. If aijy omission, mis-statement, or wrong description sect. 7. shall have been made of any lands, or of the o^Yners, p^j.j.Q^jj(i lessees, or occupiers of any lands described on t1ie plans omissions in or books of reference relating to the harbour, dock, or pier nijy^^e coV- deposited in compliance with the Standing Orders of either rected by House of Parliament, or in the schedule to the Special Act, who sSu ^"' the undertakers, after giving ten days' notice to the owners, certify the lessees, and occupiers of the lands affected by such proposed correction, may apply, in England or Ireland, to two justices, and in Scotland to the sheriff, for the correction thereof ; and if it appear to such justices or sheriff that such omission, mis-statement, or wrong description arose from mistake, they shall certify the same accordingly, and they shall in such certificate state the particulars of any such omission, mis-statement, or wrong description ; and such certificate Cei-tificate to shall, along with the other documents to which it relates, ^^ ^^^^^ be deposited, in England and Ireland, with the clerk of the peace of the several counties in which the lands afiected by such alteration are situate, and in Scotland with the sheriff clerk of such counties and with the schoolmasters of the several parishes in which such lands are situate, and with the town clerk if such lands be situate in a royal Ijurgh ; and thereupon such plan, book of reference, or schedule shall be deemed to be corrected according to such certifi- cate ; and the undertakers may make the works in accord- ance with such certificate, as if such omission, mis-statement, or wrong description had not Ijeen made. 8. The undertakers shall not commence the execution of sect. 8. the harbour, dock, or pier unless they shall have previou.sly works not to deposited with the said clerks of the peace in England and ^^h'undf^*^ Ireland, and with the sheriff clerk in Scotland, of every plans of aii county in which the harbour, dock, or pier is situate, a J^^SSby plan and section of all such alterations from the original Parliament })lan and section as shall have been approved of by Parlia- (Jgposited! ment, on the same scale, and containing the same particulars as the original plan and section, and shall also have deposited with the parish clerks of the several parishes in England, (0 [1892] 3 Ch. 242. 249 ; 62 L. J. Ch. 294 ; 67 L. T. 238 ; 2 E. 23. 640 Code of the Law of Compensation. Sect. 8. Sect. 9. Clerks of the peace, kc to receive plans of alterations and allow inspection. and the clerks of the uuions of the parishes in Ireland, and the schoolmasters of the several parishes and the town clerk of any royal burgh in Scotland in which such alterations shall have been authorised to be made, copies or extracts of or from such plans and sections as shall relate to such parishes and royal l^urghs respectively. 9. The said clerks of the peace, sheriff clerks, parish clerks, clerks of unions, schoolmasters, and town clerks shall receive the said plans and sections of alterations, and copies and extracts thereof respectively, and shall retain the same as well as the said original plans and sections, and shall permit all persons interested to inspect any of the documents aforesaid, and to make copies and extracts of and from the same, in the like manner and upon the like terms, and under the like penalty for default, as is provided in the case of the original plans and sections by an Act passed in the first year of the reign of Her present Majesty, intituled An Aet to compel Clerks of the Peace for Counties and other Persons to take the Custodij of sucli Pocuments as sliall he directed to he deposited icitli them under the Standing Orders of either House of Parliament. 10. True copies of the said plans and l^ooks of reference, or of any alteration or correction thereof, or extract there- from, certified by any such clerk of the peace or sherifi" clerk, which certificate such clerk shall give to all parties interested when required, shall be received in all Courts of justice or elsewhere as evidence of the contents thereof. 11. The undertakers in making the harbour, dock, or j)ier shall not deviate from the line of the works laid down in the said plans more than the prescribed number of yards, and where no number of yards is prescribed not more than ten yards, nor in any case to any greater extent than the line of lateral deviation described in the said plans with respect to such harbour, dock, or pier, nor take or use for the purpose of such deviation the lands of any person not mentioned in the books of reference, without his previous consent in writing, unless the name of such person have been omitted by mistake, and the fact that such omission proceeded from mistake have been certified in manner herein-before provided. Sect. 12. 12. The undertakers shall not construct the harbour, Worksmi the dock, or pier, or any part thereof, or any works connected shore of the 7 Will. IV. & 1 Vict. c. S3. Sect. 10. Copies of plans, etc.. to be evidence. Sect. 11 No deviation beyonil the limits (k-fined upon plans. Tlie Harhours, l>ocls, and I'lcrs Clauses Act, 1847. 541 tlierewith, on any part of the shore of the sea, or of any ^®°^- ^^• creek, l)ay, arm of the sea, or navigable river communi- sea, ice, not catino- therewith, where and so far up the same as the tide *?^^^*^°'.,u o ' ^ 1 _ structccl with* fiows and reflows, without tlie previous consent of Her out the Majesty, her heirs and successors, to be signified in writing fhe c'ommii under the hands of two of the Commissioners of Her sionersof Majesty's AVoods, Forests, Land Revenues, Works, and anlTof '£ ' Buildings, and of the Lords of the Admiralty, to be signified Admiralty. in writing under the hand of the Secretary of the Admiralty, and then only according to such plau and under such restrictions and regulations as the said Commissioners of Her Majesty's "Woods, Forests, Land Ee venues. Works, and Buildings, and the said Lords of the Admiralty approve of, such approval being signified as last aforesaid ; and where any such work shall have been constructed with such con- sent as aforesaid, the undertakers shall not at any time alter or extend the same, without obtaining, previously to making any such alteration or extension, the like consents or ap- provals ; and if any such work shall be commenced or completed without such consent and approval, the said Commissioners of Her Majesty's Woods, Forests, Land Revenues, Works, and Buildings, or the said Lords of the Admiralty, may abate and remove the same, and restore the site thereof to its former condition, at the costs of the undertakers, and the amount of such costs shall be a debt due to the Crown, and recoverable against the undertakers accordingly : Provided always, that if the conservancy of the navigable river shall legally belong to any person the like consent and approval of such person shall also be necessary, in addition to the consents and approvals herein- before required ; and if the right of property of or in the shore shall legally belong to any person, such right shall not be prejudiced except so far as power to purchase the same shall Ije given by the Special Act. ARTICLE 1. — A special Act which empowers a public body to Power to re- remove obstructions to the navigation of a river upon payment of HoJdoes not* compensation to the owners of the soil, does not confer the conservancy confer con- of the river on that body. ^.™'y ^^ So held in Exeter Corporation v. Earl of Devon (/.). 13. If the undertakers propose to make any deviations sect. 13. from or alterations in the plans of their works, deposited as Befoi^tera- aforesaid, they shall, before adopting and carrying such tions in plans (/.-) (1870; L. E. 10 Eq. T.i-l; 23 L. T. 382; 18 W. E. 879. 542 Code of the Lair of Couiprtisation. Sect. 13. deviations or alterations into execution, submit the plans to be ap- thereof to the Lords of the Admiralty, and also to the said IheTdnSrak Commissioners of Her Majesty's AYoods, Forests, Land and the Com- Kcvenues, Works, and Buildings ; and no deviations from or alterations in the deposited plans shall be adopted Ijy the undertakers unless approved by the Lords of the Admiralty or the said commissioners respectively, signified in manner aforesaid, or otherwise as they shall think proper. missioners of Woods, &c. Sect. 20. WarclioHxc.^ /Old rrtines. Power to ])ui'chase additional poses. And with respect to the construction of warehouses, wharfs, and other conveniences, be it enacted as follows : 20. The undertakers, in addition to the lands authorised to be compulsorily taken by them under the powers of the Special Act, may contract with any party willing to sell for ext^ra^"''' the Same for the purchase of any lands adjoining or near ordmarypur- to the Undertaking for extraordinary purposes (that is to say,) For making and providing additional yards, wharfs, and jjlaces for receiving, depositing, and loading or unload- ing goods, and for the erection of weighing machines, toll houses, offices, warehouses, sheds, and other buildinos and conveniences : o For making convenient roads to the harbour, dock, or pier, or any other purpose which may be requisite or convenient for the formation or use thereof. Sect. 21. i'ower to con- ■struct ware- houses and ■otlier works. 21. The undertakers may, as well upon the said lands as upon any other lands ac(|uired by them under the provisions of this and the Special Act, construct such warehouses, store- liouses, sheds, and other 1)uildings and works as they may deem necessary for the accommodation of goods shipped or unshipped w^ithin tbe harbour, dock, or pier, and may erect or provide such cranes, weighing and other machines, con- veiiicnces, weigiits, and measures as they think necessary for li'adiijo', unloadimr, measurino- and weio;hin2[ such ooods. 0^3 THE TOWNS IMPROVEMENT CLAUSES ACT, 1847 (10 & 11 A'iCT. c. 34). An Ad for consolidating in one Act certain Provisions iisualhi contained in Acts for Faring, Draining, Cleansing, Lighting, and Improving Tonus. [21st June, 1847. And with respect to taking lands, and the compensation sect^i9. to be made hv the commissioners for damage done by them Lmifh. in execution of the powers of this and the Special Act, be it enacted as follows : 19. Where by this or the Special Act the commissioners The taking of shall be empowered to take or use for the purposes thereof subj^Jc?t?the any lands otherwise than with the consent of the owners provisions of and occupiers thereof, they shall, in exercising the powers the^LaudT' so given, be subject to the provisions and restrictions con- clauses Con- tained in this Act and in the Lands Clauses Consolidation Act/isi.-,. Act, 1845 ; and the commissioners shall make to the owners and occupiers of and all other parties interested in any such lands taken or used for the purposes of this or the Special Act full compensation for the value of the lands so taken or used, and for all damage sustained Ijy such owners, occupiers, and other parties Ijy reason of the exercise, as regards such lands, of the powers vested in the commissioners by this or the Special Act, or any Act incorporated therewith ; and, except where otherwise provided by this or the Special Act, the amount of such compensation shall be determined in the manner provided by the said Lands Clauses Consolidation Act for determining questions of compensation with regard to lands purchased or taken under the provisions thereof ; and all the provisions of the last-mentioned Act shall be applicable to determine the amount of any such com- pensation, and to enforce the payment or other satisfaction thereof. By sect. 2 of the Act " the commissioners " are defined as " the Meaning of commissioners, trustees, or other persons or body corporate missioners." intrusted by the special Act with powers for executing the purposes thereof." 544 Code of the Law of Compensation. Sect. 20. Errors and omissions in plans, (Sec, may be cor- rected by justices, who shall certify the same. Certificate to be deposited. 20. If any omission, mis-statement, or wrong description shall have been made of any lands, or of the owners, lessees, or occupiers of any lands, mentioned in any schedule to the Special Act, the commissioners, after giving ten days' notice to the owners, lessees, and occupiers of the lands affected by such proposed correction, may apply to two justices for the correction thereof; and if it appear to such justices that such omission, mis-statement, or wrong description arose from mistake, they shall certify the same accordingly, and they shall in such certificate state the particulars of any such omission, mis-statement, or wrong description ; and such certificate, with the other documents to which it relates, shall be deposited with the clerk of the peace of the county in which the lands affected thereby are situated, and such certificate shall be kept by such clerk of the peace with the other documents to which it relates, and thereupon such schedule shall be deemed to be corrected according to such certificate ; and the commissioners may take any lands in accordance with such certificate as if such omission, mis-statement, or wrong description had not been made. Sect. 21. Commis- sioners to make compen- sation, for damage done. If parties cannot agree as to com- pensation, the same to be determincy the firstly lierein-before recited The hieJnswr Act, lSo'2. 551 Act directed to be deposited and kept, and the said com- Sect. 22. mittee shall be absolutely discharged from all liabilit" in respect of such compensation money upon payment thereof to the said trustees, who shall, out of such mon3y, in the first place pay and discharge all expenses which may be incurred by the said commissioners in respect of or in any way incident to such application and order, and apply or invest the surplus thereof in such manner as shall by such order be authorised or directed. 552 THE INCLOSURE ACT, 1854 (17 & IS Vict. c. 97). An Ad to amend and (Wtend the Aets for the Inclosure, Exchange, and Iniprocenient of Land. [lOtli August, 1854. Sect. 15. Api)lication of compensa- tion for com- mon rights paid under 8 & 9 Vict, c. 18. Sect. 16. Money to be paid into Bank of Enslaiul. 15. Where any money shall have been or may hereafter be paid to a committee under " The Lands Clauses Con- solidation Act, 1845," or under any railway or other Special Act by which money may have been directed or authorised to be paid to a committee as compensation for the extinction of commonable or other riohts, or for lands, beino- common lands or in the nature thereof, the right to the soil of which may have belonged to the commoners, and the majority of such committee shall be of opinion that the provisions of such Act for the apportionment thereof cannot be satis- factorily carried into effect, such majority may make application in writing to the commissioners to call a meeting of the persons interested in such compensation money, to determine whether or not such compensa- tion money shall l)e apportioned under the provisions of this Act. The Inclosure Commissioners are now the Board of Agri- culture {II) . 16. If the majority in number and interest shall resolve that such compensation money shall be apportioned, the amount of such compensation money shall be forthwith paid into the Bank of England, to the credit of an account to l)e named l)y the Inclosure Commissioners for England and Wales ; and the said committee shall be absolutely dis- charged from all liability in respect of such compensation money, upon i)aymcnt thereof into the Bank of England as herein-l>efore directed. Sect. 17. 17. As soon as the said moneys shall have l)een paid into intere>t lo le ^^^^ bank as afoix'said, the said Inclosure Commissioners, or ascertained ally assistant commissioner appointed or to be appointed hy missioners. them for that purpose, shall proceed to ascertain, determine, (U) Aide, p. 201. The Inchsiu-e Ad, 1854. - 553 and award the names of the parties who were entitled to Sect. 17. such estates, rights, and interests in the said common and commonable lands, and the amount or value of their respective shares, rights, and interests therein, and the proportionate amount of the price so to Ije paid as afore- said for such estates, rights, and interests to which each party so entitled as aforesaid is entitled, in respect of his share, right, or interest as aforesaid ; and the award of the oommissioners under tlieir common seal, or assistant com- missioner in writing under his hand and seal, shall be binding on all [)arties claiming such estates, rights, and interests as aforc'said ; and for the purpose of ascertaining the rights and interests of such parties as aforesaid it shall be lawful for the said Inclosure Commissioners or assistant commissioner to call such meetings as they or he shall think fit of all persons having or claiming any such rights or interest in the said common and commonalde lands as afore- said, at such time and place as the said commissioners or assistant conmiissioner shall think fit, so as the same shall be appointed by a public notice thereof in writing to be affixed at least t^velve days before such meeting on the j^rincipal outer door of the parish church in which such land or any part is situate ; and to be inserted in one of the public newspapers published or generally circulated in the county in which such laud is situate ; and at such meeting the said commissioners or assistant commissioner do and shall proceed to examine into and nscertain all and every the claims which shall be made or put forward in respect of any such rights or interests as aforesaid, and the relative and proportionate value of the estates, rights, and interests of any person or persons claiming to be entitled thereto, and for that purpose do and may emi)loy any valuer or surveyor, and call for and receive such records, deeds, and writings, and such other proof or evidence, as the said commissioners or assistant commissioner may think fit ; and they and he are and is hereby authorised and required to take the testimony of any witnesses upon oath (which oath they and lie are and is respectively hereby empowered to administer), or to take the affirmation of such witnesses in cases where affirmation is allowed by law instead of oath, 18. All the costs and expenses of the said Inclosure Com- sect. 18. missioners and assistant commissioner, and of any valuer as to the paj-- or surveyor employed by them or him under the provisions mejit of costs ■ -, "^ i> ■•••'. Tin- ^ J2 1 -1 "^ Inclosure berem-before contained, shall, in the nrst phice, be paid out commis- sioaers and as 554 Code of the Law of Compriisnlion. Sect. 18. to the residue o£ moneys. of sucii compensation moneys and the residue of the said moneys shall be paid and divided between and amongst the said several parties to be named in the said award, and in the shares and proportions to be ascertained and set forth in such award. Sect. 19. Compensation for limited trustees. 19. When it shall appear to the commissioners or assistant commissioner that any of the parties entitled to such rights or interests are only entitled thereto for a limited interest, interests to be ^j^^^^ -^ ^^^^^y y^^ j^^^^.f^^j f^^. ^|^^^^ ^^ j^.^^^ ^^^ ^^^.^, ^^, ^^.^ award, to direct that the moneys to be paid in respect of such right or interest, where the same shall exceed twenty pounds, shall be j^aid to the trustees acting under the will, conveyance, or settlement under which such person having such limited interest shall be interested in such rio-hts or mterests, and where there are no trustees then into the hands of trustees to be appointed under the hands and seal of the commissioners, to he held by them on trusts similar to the uses or trusts to which such rights or interests had l)een immediately before the payment of such moneys into the bank subject to, or as near thereto as the said, commis- sioners or assistant commissioner can ascertain ; and the receipts of any trustees to whom any such moneys shall be paid as aforesaid shall be good and sufficient discharges for the same : Provided always, that the payment of all such sums shall from time to time be subject to such rules and regulations, for the purpose of ensuring the payment thereof to the person or persons duly entitled to receive the same, as the said commissioners shall by any order direct. Sect. 20. As to suras payable in respect of lands not ex- ceeding t20. 20. In all cases where the sum payable by virtue of such award, in respect of any estate, right, or interest, shall not exceed twenty pounds, and the person entitled to such estate, right, or interest shall be under any disability or incapacity, such sum shall and maybe paid to the guardian, committee, or husband of such person ; and where any such person shall have a limited interest only in such estate, right, or interest, the whole of such sum shall and may, nevertheless, be paid to the person having such limited interest, to his or her guardian, committee, or husband, as the case may be. 555 THE COxMMOXABLE EIGHTS COMPENSATION ACT, 1882 (45 & 46 Vict. c. 15). All Act to prnridr for the hi'tter Application of Moncijs paid hjl iraii of Compensation for the conipnisorii Acuv- this Act, except the provisions relating to access to the J^o^puf^oSy. Special Act ; and in construing those Acts for the pur- poses of this section the Special Act shall be construed to mean this Act, and the promoters of the undertaking shall be construed to mean the school board, and land shall be construed to include any right over land : (2.) The school board, before putting in force any of the powers of the said Acts with respect to the purchase and taking of laud otherwise than by agreement, shall— (a) Puijli.sl) during three consecutive weeks in the Publication of months of October and November, or either of them, a notice describing shortly the object for which the land is proposed to Ije taken, naming a place where a plan of the land proposed to be taken may be seen at all reasonable hours, and stating the (piantity of land that they require ; and shall further, (b) After such publication, serve a notice in manner service of notice: Education Department 560 Code of the Lair of Compeufiation. Sect. 20. mentioned in this section on every owner or reputed owner, lessee or reputed lessee, and occupier of such land, defining in each case the particular land intended to be taken, and requiring an answer stating whether the person so served assents, dissents, or is neuter in respect of taking such land : (c) Such notice shall be served — (a) By delivery of the same personally on the person required to be served, or, if such person is absent abroad, to his agent ; or (b) By leaving the same at the usual or last known place of abode of such person as afore- said, or by forwarding the same by post in a registered letter, addressed to the usual or last known place of abode of such person : Petition to (3.) Upon compliance with the provisions contained in this section with respect to notices the school board may, if they think fit, present a petition under their seal to the Education Department, praying that an order may be made authorising the school board to put in force the powers of the said Acts with respect to the purchase and taking of land otherwise than by agreement, so far as regards the land therein mentioned ; the petition shall state the land intended to be taken and the purposes for which it is required, and the names of the owners, lessees, and occupiers of land who have assented, dissented, or are neuter in respect of the taking of such land, or who have returned no answer to the notice, and shall be supported by such evidence as the Education Department may from time to time require : (4.) If, on consideration of the petition and proof of the publication and service of the proper notices, the Education Department think fit to proceed with the case, they may, if they think fit, appoint some person to inquire in the district in which the land is situate respecting the propriety of the proposed order, and also direct such person to hold a public inquiry : (5.) After such consideration and proof, and after receivhig a report made upon any such inquiry, the Education Department may make the order prayed for, authorising the school board to put in force with reference to the land referred to in such order the powers of the said Acts with respect to the i»urehase and taking of land The FAcmcntdnj Hd/tnitlnu Act, 1870. 561 otherwise than ]>y agreement, or any of them, and Sect. 20. either absohitely or with such conditions and modifi- cations as they may think fit, and it shall be the duty of the school board to serve a copy of any order so made in the manner and upon the persons in which ;ind u[»on whom notices in respect of the land to which the order relates are required by this Act to be served : (6.) No order so made shall be of any validity unless No order valid the same has been confirmed by Act of Parliament ; Srmed bl- and it shall be lawful for the Education Depart- rariiament. ment, as soon as conveniently may be, to obtain such confirmation, and the Act confirming such order shall be deemed to be a public general Act of Parliament : (7.) The Education Department, in case of their refusing or modifying such order, may make such order as they think fit for the allowance of the costs, charges, and expenses of any person whose land is proposed to be taken of and incident to such application and inquiry respectively : (8.) All costs, charges, and expenses incurred by the Costs how to Education Department in relation to any order under ^ ^^aje. this section shall, to such amount as the Commissioners of Her ^lajesty's Treasury think j^roper to direct, and all costs, charges, and expenses of any person which shall be so allowed by the Education Department as aforesaid shall, become a charge upon the school fund of the district to which such order relates, and be repaid to the said Commissioners of Her Majesty's Treasury or to such person respectively, by annual instalments not exceeding five, together with interest after the yearly rate of five pounds in the hundred, to be computed from the date of any such direction of the said commissioners, or allowance of such costs, charges, and expenses respectively upon so much of the principal sum due in respect of the said costs, charges, and expenses as may from time to time remain unpaid. The School Sites Acts as defined in the fourth schedule to this Act shall apply in the same manner as if the school board were trustees or manaoers of a school within the meaning of those Acts, and land may be acquired under any of the Acts mentioned in this section, or partly under one and partly under another Act. L.c. 36 562 Code of the Iauv of Compensation. Sect. 20. Land ac- quired by school board — restrictive covenant — remedy of person in- juriously affected. ARTICLE 1. — "Where a school board acquii-e land with notice of a restrictive covenant to which the land was subject in the hands of the vendor, the covenantee cannot maintain an action against the school board for breach of covenant. His remedy is under sect. 68 of the Lands Clauses Consolidation Act, 1845. This was decided by the Court of Appeal in Kirhj \. School Board for Harrofiatc {m). In giving judgment Lindley, M.R., said : " We are asked to say that upon the true construction of sects. 19 and 20 [of the Elementary Education Act, 1870], and of the Lauds Clauses Act, if the school board can take this land or any land by agreement, nobody who is injuriously affected can avail himself of sect. 68 of the Lands Clauses Act. I cannot read these sections or the pi'ovisions of the Lands Clauses Act as resulting in iXDj such injustice or absurdity." School board another owner. ARTICLE 2. — A school board may acquire land to be exchanged lancin"'^'^ for land belonging to another owner, where the land originally exchanged for acquired wiU be used in a manner beneficial to the school. land of A school board served on R. a notice to treat for hind belonging to him. Prior to the service of the notice and to the passing of the confirmation Act, the board had entertained and adopted, subject to the sanction of the Education Department, a proposal from B., a neighbouring landowner, for exchanging a portion of the land to be acquired by the board from II. for a piece of B.'s land, B. undertaking to form the land so to be conveyed to him by the board into a public road. There was evidence to show that such road, when made, would be advantageous to the school intended to be erected. The Court refused an injunction to restrain the board from acquiring so much of R.'s land as they intended to convey to B., on the ground that the course that the board proposed to adopt could be carried out with the sanction of the Education Department (»). School board need not trivc notice to treat for easement. ARTICLE 3, — A school board need not give notice to treat to the owners of easements over land taken, but compensation in respect of such easements is to be given as for land injuriously afiected. So held in Clark v. School Board for London (o), where the school board proceeded to build schools which would interfere with the ancient lights of the plaintiff's houses. The plaintiff sought to restrain the building of the schools. Lord Selborne, L.C., (m) [1896], 1 Cli. 4:57; 6J L. J. Ch. 1576 ; 74 L. T. 6; (JO J. P. 182. (,/) noU^i V. Sr/iool Jioiird fur Lun,hn, (1,SS4), 27 Ch. I). (5:59; ,51 L. T. 567; aSW. R. 129. (u) (1874), L. E. 9 Ch. App. 120; 43 L. J. Ch. 421; 29 L. T. 908; 22 "W. E. 354. See also School Board/or London v. /Sm/ale or lease of school- house. 21. For the purpose of the purchase by the managers of any public elementary school of a school-house for such school, or a site for the same, " The Lauds Clauses Con- solidation Act, 1845," and the Acts amendino- the same (except so much as relates to the purchase of land other- wise than by agreement), shall be incorporated with this Act ; and in construing those Acts for the purposes of this section the Special Act shall be construed to mean this Act, and the promoters of the undertaking shall be construed to mean such managers, and land shall be construed to include any right over land. The conveyance of any land so purchased may be in the form prescril)ed by the School Sites Acts, or any of them, with this modification, that the conveyance shall express that the land shall be held upon trust for the purposes of a public elementary school within the meaning of this Act, or some one of such purposes which may be specified, and for no other purpose whatever. Land may be acquired under the Acts incorporated with this section, or under tlie School Sites Acts, or any of them, or partly under one and partly under another Act. Any persons desirous of establishing a pu])lic elementary school shall be deemed to ho, managers for the purpose of this section if they obtain the approval of the Education Department to the establishment of such school. 22. The provisions of the Charitable Trusts Acts, 1853 to 1869, which relate to the sale, leasing, and excliange of lands belonging to any charity, sh;dl extend to i[\v. sale, leasing, and exchange of the whole or any part of any land or school-house belonging to a school board which may not be required by such Ijoard, with this modification, that the Education Department shall for the purposes of this section be deemed to be substituted in those Acts for the Charity Commissioners. (7) I'vst, p. 505. 565 THE TITHE ACT, 1878 (41 & 42 Vict. c. 42). An Act to amend a }ul ftirtlier extend the Acts for the Conuniitn- tion of Tithes in Emjland and Wales. [8tli August, 1878.] Whereas an Act was passed in the session of Parliament « -S: 7 wm. iv, • • c 71 held in the sixth and seventh years of the reign of His late jViii. iv. & Maiesty Kino- William the Fourth, intituled "An Act for J y^^t c. 69. o ^ 1 oC li Vict the Commutation of Tithes in England and Wales," and the c. 64. said Act has been amended, and the provisions thereof have ^ "^1 ^^^^•^• been extended, by Acts passed in the sessions of Parliament 3 & i vict. held respectively in the first year, the first and second years, S_^g yj^^ the second and third years, the third year, the fifth and c. 54. sixth years, the ninth and tenth years, and the twenty-third c.Vs. and twenty -fourth years of the reign of Her present IMajesty : 28 & 24 Vict And whereas it is expedient that the said Acts should be amended, and that the provisions thereof should be further extended in manner hereinafter mentioned : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. In all cases where land charged with rent-charge in Sect. 1. lieu of tithes is taken for any of the following purposes ; Kede^ion that is to say, of tithe on The building of any church, chapel, or other place of fo^puwk;'^^ public worship ; purposes. The making of any cemetery or other place of burial ; The erection of any school under the Elementary Educa- 33 & 34 Vict tion Act ; The erection of an}' town hall, Court of assize, gaol, lunatic asylum, hospital, or any other building used for public purposes, or in the carrying out of any improvements under the Artizans' Dwellings Act, 38 & 3j vict. 1875; _ '•''• The formation of any sewage farm under the provisions of the Sanitary Acts, or the construction of any sewers, or sewage works, or any gas or water works ; Or the enlarging and improving of the premises or 566 ^ Code of the Law of Compensation. sect^i. buildings occupied or used for any of the above- mentioned purposes ; the person or persons proposing to carry out the above- mentioned works, buildings, or improvements shall, as soon as the said person or persons are in possession of the land, and before the land is applied to any of the purposes afore- said, apply to the Tithe Commissioners to order the redemp- tion of the rent-charge for asum of money equal to twenty-five times the amount thereof ; and the redemption money, with the expenses incident to the redemption, shall be paid to the said commissioners within a time to be fixed by such order, or within any enlarged time the commissioners may appoint, and the commissioners shall apply such redemption money in the manner provided by the said Acts. The Artizans' Dwellings Act, 1875, has been repealed, and the provisions thereof are re-enacted in the Housing of the Working Classes Act, 1890 (r). By sect. 2 of the Tithe Rent-charge Redemption Act, 1885 (48 & 49 Vict. c. 32), the provisions of this Act have been extended to " all corn rents, rent-charges, and money payments payable out of or charged on any lands by virtue of any Act of Parliament in lieu of tithes." By sect. 2 of the Board of Agriculture Act, 1889 (52 & 53 Vict. c. 30), the powers and duties of the Tithe Commissioners under the Tithe Acts are transferred to the Board of Agriculture. Sect. 2. 2. The application to the said commissioners in respect Appii^ion ^^ ^*^y ^^^^^ I'dwdi may be signed by the secretary of any forredemp. company whicli shall have taken the land, or in the case of *^°°' a corporation, school or other board, by the clerk of the said board or corporation, and in every other case by such person or persons as the commissioners may require. (»•) Post, p. 575. 567 THE POST OFFICE (LAND) ACT, 1881 (44 & 45 A^ICT. c. 20). An Ad to (nnriid tin' I.nir irilh respect to the Acresented against anything com- prised therein, the bill may be referred to a Select Committee, and the petitioner shall be allowed to appear and oppose as in the case of private l)ills. (3.) The Chancellor and Council for the time being of the Duchy of Lancaster may, if they think fit, from time to time contract and agree with the Postmaster-General for the sale of, and may aljsolutely make sale and dispose of, for such sura or sums of money as to the said Chancellor and Council appear sufficient consideration for the same, any land belonging to Her JMajesty, her heirs or successors, in right of tlie said dudiy, wliich, for the }iurpose of the The Post OjHce (Lnml) Act, 1881. 509 Post Office, the Postmaster-Geueral may from time to time Sect. 3. deem it expedient to purchase with the consent of the Treasury, and such land may be granted and assured to the Postmaster-General, and the said moneys shall be paid and dealt with as if the said land had been sold under the authority of the Duchy of Lancaster Lands Act, 1855. i8_&;i9 Vict. The words iu italics have been repealed by the Statute Law Revision Act, 1891; and by the same Act the second part of sect. 1 and the whole of sect. 2 have been repealed. 4. All the provisions of the Post Office Lands Act, 1863, Power to sell, with respect to the sale, exchange, leasing, or surrender of le^a'seTand"' any lands vested in the Postmaster-General shall apply to purchased. any land purchased by the Postmaster-General under the cM"'^ '^*" powers of this Act. 570 THE METROPOLITAN OPEN SPACES ACT, 1881 (44 & 45 Vict. c. 34). An Act to amend the MetrojJolitan Open Spaces Act, 1877. [llth August, 1881. * # # # # Sect. 9. 9. No estate, interest, or right of a profitable or bene- Provisioii for filial iiature in, over, or affecting an open space, churchyard, compensation, cemetery or burial ground shall, except with the consent of the body or person entitled thereto, be taken away or injuriously affected by anything done under this Act without compensation being made for the same ; and such com- pensation shall be paid by the Metropolitan Board, vestry, or district board by which such estate, interest, or right is taken away or injuriously affected, and shall, in case of difference, be ascertained and provided in the same manner as if the same compensation were for the compulsory pur- chase and taking or the injurious affecting of lands under the provisions of the Lands Clauses Consolidation Act, 1845, and any Acts amending the same. By sect. 4 of this Act " disused burial grounds " may be trans- ferred to a local authority for the purpose of preserving them as open spaces accessible to the public. By sect. 4 of the Open Spaces Act, 1887, the expression '' dis- used burial ground " shall mean " any burial ground which is no longer used for interments, whether or not such ground shall have been partially or wholly closed for burials under the provisions of any statute or Order in Council." 8 & 9 Vict c. IS. Definition of *' disused burial ground." 571 THE ELECTRIC LIGHTING ACT, 1882 (45 & 46 Vict. c. 50). An Act to fiirilitdte (tinl vcijnhilc tlw siijiphi of Electncitji for Lightiufj oiid other purposes in Great Britain and Ireland. [I8tli August, 1882. Be it enacted by tlie Queen's most Excellent ]\Lijesty, ])y and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited for all purposes as the Electric sect. i. Lighting Act, 1882. shorrtitie. This Act has been amended by the Electric Lighting Act, 1888, but the latter Act is not included herewith, as the matters therein deah with do not come within the scope of the present work. 2. The provisions of this Act shall apply to every local sect. 2. authority, company, or person who may by this Act or any ^ppii^onof license or provisional order granted under this Act, or by Act. any Special Act to he hereafter pa.ssed, be authorised to supply electricity within any area (in this Act referred to as ■"the undertakers") and to every undertaking so authorised, •except so far as may be expressly provided l)y any such Speciiil Act ; and every such license, provisional order, and Special Act, is in this Act included in the expression *' licen.se, order, or Special Act." 10. The undertakers may, subject to and in accordance Sect. lo. with the provisions and restrictions of this Act, and of any Qg^e^ rules made l)y the Board of Trade in pursuance of this Act, powers of and of any license, order, or Special Act authorising or under license atiecting their undertaking, and for the purpose of sup- orprovisionai plying electricity, acquire such lands by agreement, con- struct such work.s, acquire such licenses for the use of any patented or protected processes, inventions, machinery, apparatus, methods, materials, or other things, enter into such contracts, and genei'ally to do all such acts and things as may be necessary and incidental to such supply. 572 Code of the Law of Co)itpensation. Sect. 10. ARTICLE 1. — Section 10, read in conjunction with sect. 32, is con- "TT" fined to construction of the works required to supply electricity, and applies to con- docs not apply to their subsequent user. struction of ... works, not to So held ill Shelter v. City of London Electric Liqlitnu/ Sect. 12. Incorporation of certain pro- visions of the Lands Clauses Con- solidation Acts. 10& 11 Vict. c. 15. 3i & 35 Vict. c. 41. # # # # # 12. The provisions of the following Acts shall be incor- porated with this Act ; that is to say, (1.) The Lands Clauses Acts, except the enactments with respect to the purchase and taking of lands otherwise than by agreement, and except the enact- ments with respect to the entry upon lauds by the promoters of the undertaking ; and (2.) The provisions of the Gasworks Clauses Act, 184 7, with respect to breaking up streets for the purpose of laying pipes, and with respect to waste or misuse of the gas or injury to the pipes and other works, except so much thereof as relates to the use of any burner other than such as has been provided or approved of by the undertakers ; and (3.) Sections thirty-eight to forty-two inclusive, and sections forty-five and forty-six of the Gasworks Clauses Act, 1871. For the purposes of this Act, in the construction of all the enactments incorporated by this section " the Special Act " means this Act inclusive of any license, order, or Special Act; and the "promoters" or "under- takers," and " the undertaking," as the case maybe, mean the undertakers and the undertaking respectively under this Act. In the construction of the snid Lands Clauses Acts, " land" includes easements in or relating to lands. Li the construction of the said Gasworks Clauses Act, 1847, and the Gasworks Clauses Act, 1871, the said Acts shall be construed as if " gas " meant " elec- tricity," and as if "pipe" meant "electric line," and " works" meant " works " as defined by this Act, and as if "tlie limits of the Special Act" meant tlie area within which the undertakers are authorised to supply electricity under any license, order, or Special Act. All offences, forfeitures, penalties, and damages under the said incorporated provisions of the said Acts or any of («) [1895], 1 Ch. 2S7 ; M I>. J. Ch. lliG; 7:2 L. T. ;J4 ; r.i W. R. lOS. The Electric Lujhtimj Act, 1882. 573 them may be prosecuted and may be recovered in manner Sect. 12. l)y the said Acts respectively enacted in relation thereto, provided that sums recoverable under the provisions of section forty of the Gasworks Clauses Act, 1871, shall not be recovered as penalties, but may be recovered summarily as civil dei)ts. 17. In the exercise of the powers in relation to the sect. 17. execution of works oiven them under this Act, or any ^ . ,. , r< • 1 4 1 IT in Compensation license, order, or bpecial Act, the undertakers shall cause for damage, as little detriment and inconvenience and do as little damage as may be, and shall make full compensation to all bodies and persons interested for all damage sustained by them by reason or in consequence of the exercise of such powers, the amount and application of such compensation in case of difference to be determined by arbitration. ARTICLE 1. — Section 17 refers to payment of compensation for sect. 17 damages caused in the execution of the works, and not to damages reiers to caused by their user when constructed. causedTn the execution of So heW in Slielfcr v. Citt/ of London Electric Lighting the works. Company (t). In the same case the Court of Appeal held that Undertakers 1 • !• • iT-n -T-i- -i-^-v 1- are liable for there is nothing in the ii,lectric Lighting Act, 1882, to reheve a nuisance undertakers thereunder from liability to an action at common law ^f ^\^^^^ ^y ^ their works. for a nuisance caused by their works ; and an injunction may be granted (»). 28. Where any matter is by this Act, or any license, sect. 28. order or Special Act, directed to be determined by arbi- . ^.~~ ^, in 1 • 1 Arbitration. tration, such matter shall, except as otherwise expressly provided, be determined by an engineer or other fit per- son 10 be nominated as arbitrator by the Board of Trade on the application of either party, and the expenses of the arl)itration shall be borne and paid as the arbitrator directs. {t) [1895], 1 Ch. 287 ; 64 L. J. Ch. 736 ; 72 L. T. 34 ; 43 W. E. 198. See also Jordeson v. Sutton, Southmates, and Drypool Gas Company [1899], 2 Ch. 217 ; 68 L. J. Ch. 457 ; SO L. T. 815 ; 63 J. P. 692. («) See also Aftornei/-General v. Gas Lii/ht and Coke Compa)iii (1877), 7 Ch. D. 217 ; 47 L. J. Ch. 534 ; 37 L. T. 746 ; 26 ^\. E. 125 ; Metropolitan Asylum Board v. Hill (1880), 6 A. C. 193 ; 50 L. J. Q. B. 353 ; 44 L. T. 653; 29 W. E. 617 ; Jordeson v. Sutton, Southcoates, and Drypool Gas Company, supra. 574 Code of the Law of Compensation. Sect. 28. Ai]y license or provisional ordei- granted under this Act shall be deemed to be a Special Act within the meaning of 37 & 38 Vict, the Board of Trade Arbitrations, &c., Act, 1874. c. 40. ' ' ' Sect. 32. 32. In this Act, unless the context otherwise requires — intei^a- '^'^^^ cxpressiou "electricity" means electricity, electric tion. current, or any like agency : The expression " electric line " means wire or wires, con- ductor, or other means used for the purpose of convey- ing, transmitting, or distributing electricity with any casing, coating, covering, tube, pipe, or insulator enclosing, surrounding, or supporting the same, or any part thereof, or any apparatus connected there- with for the purpose of conveying, transmitting, or distributing electricity or electric currents : The expression " works " means and includes electric lines, also any buildings, machinery, engines, works, matters, or things of whatever description required to supply electricity and to carry into effect the object of the undertakers under this Act : The expression " company " means any body of persons corporate or unincorporate : 8 & 9 Vict. The expression " Lands Clauses Acts " means the Lands l' ^^-^ ,. Clauses Consolidation Acts, 1845, 1860, and 1869 : c. lOb'. " The expression " street " includes any square, court, or 32 & 33 Vict alley, highway, lane, road, thoroughfare, or public ^- ^^" passage, or place, within the area in which the undei- takers are authorised to supply electricity by this Act, or any license, order, or Special Act : 32 & 33 Vict. The expression "telegram" has the same meaning as in the Telegraph Act, 1869. c. 73 Sect. 33. 33. Nothino; in this Act shall limit or interfere with the rights of any owner, lessee, or occupier of any mines or tecUouoT*^ minerals lying under or adjacent to any road along or across which any electric line shall be laid to work such mines and minends. mines 575 THE HOUSING OF THE WORKIXG CLASSES ACT, 1890 (53 & 54 Vict. c. 70). An Act to consoUdati' (ind amend the Acts relatiiuj to Artizans' and Labourers' I)ireUiniis and the Housing of the IVorJcing Classes. ' :i8tb Auo-ust, 1890. Part I. Sclicme hij Loral Aiifhoritij. # # # # # 6. — (1.) The improvement scheme of a local authority sect. 6. shall be accompanied by maps, particulars, and estimates, Req~~7esof and improvement (a) may exclude any part of the area in respect of which H^li"^ °^ an otHcial representation is made, or include any authority. neigliboaring lands, if the local authority are of opinion that such exclusion is expedient or inclusion is necessary for making their scheme efhcient for sanitary purposes ; and (b) may provicle for widening any existing approaches to the unhealthy area or otherwise for opening out the same for the purposes of ventilation or health ; and (c) shall provide such dwelling accommodation, if any, for the working classes displaced by the scheme as is required to comply with this Act ; and (d) shall provide for proper sanitary arrangements. (2.) The scheme shall distinguish the lands ])roposed to be taken compulsorily. (3.) The scheme may also provide for the scheme or any part thereof being carried out and effected by the person entitled to the first estate of freehold in any property com- prised in the scheme or with the concurrence of such person, under the superintendence and control of the local authority, and upon such terms and conditions to be embodied in the scheme as may be agreed upon between the local authority and such person. 576 Code of the Law of Compensation. Sect. 6. ARTICLE 1. — The local authority may "take" land before pro- , ~ viding dwelling accommodation for the working classes displaced. authority may mi - i • • i i -x i i "take" land lliat IS, tiiey may give a uotice to treat, and may take any before pro- proceeding prior to conveyance. In Spencer v. Metropolitan dwelling Board of Works {x), the special Act provided that before the Board tiTn""'°'^' should take for the purposes of the Act certain houses occupied at the passing of the Act wholly or partially by persons of the labour- ing classes, they should prove to the satisfaction of the Secretary of State that suitable accommodation had been provided elsewhere for the same number of persons as had been accommodated in the houses taken. The Board served the plaintiff with a notice to treat, and the plaintiff brought his action to restrain the Board from proceeding on their notice till they had complied with the conditions. It was held that, as the conditions precedent to taking the plaintiff's land were conditions which the Board were able and compellable to comply with, the land in question was land Avith regard to which the Board were entitled to serve a notice to treat and summon a jury. It was also held that the prohibition against taking the land till the conditions had been complied with did not prohibit the Board from taking, before such compliance, any pro- ceeding prior to conveyance. Jessel, M.R., did not say whether they were prohibited from taking a conveyance. Confirmation of Scheme. Sect. 7. 7. Upon the completion of an improvement scheme the Pubik^ion of local authority shall— notices. (a) publish, during three consecutive weeks in the month of September, or October, or November, in some one and the same newspaper circulating within the district of the local authority, an advertisement stating the fact of a scheme having been made, the limits of the area comprised therein, and naming a place within such area or in the vicinity thereof where a copy of the scheme may l)e seen at all reasonable hours ; and Service of (b) during the mouth next following the month in which such advertisement is published serve a notice on every owner or reputed owner, lessee or reputed lessee, and occupier of any lands proposed to \i(i taken com- pulsorily, so far as such persons can reasonably be ascertained, stating tlnit such lands are proposed to be taken compulsorily for the purpose of an improve- ment scheme, and in the case of any owner or reputed notices. (x) (18.S2), 2-1 Ch. D. 142 ; o2 L. J. Ch. 249 ; 47 L. T. 549 ; 31 W. R. 347. The Hom'iwj of the Worliiuj CItisses Ad, 1890. 577 owuer, lessee or reputed lessee, requiring an answer sect. 7. stating wlietlier the person so served dissents or not in respect of taking such lands ; (c) Such notice shall be served — (i.) by delivery of the same personally to the person required to be served, or if such person is absent abroad, or cannot be found, to his agent, or if no agent can be found, tlien by leaving the same on the premises ; or, (ii.) by leaving the same at the usual or last known place of abode of such person as aforesaid ; or, (iii.) by post addressed to the usual or last know^n place of abode of such person. (d) One notice addressed to the occupier or occupiers without naming him or them, and left at any house, shall be deemed to be a notice served on the occupier or on all the occupiers of any such house. ARTICLE 1.— Service of a notice under sect. 7 does not bind the Service of notice does local authority. not bind the So hekl upon a similar notice under sect. 176 of the Public ^uThority. Health Act, 1875 (iil)i{) ; SS L. T. 271 ; 19 T. L. K. 208- The Hoii.'^iiuj of the ]Voiii)ui ( 'Ay.s.sy.s^ Act, 1890. 585 thereof, shall be extiiigui.shed, and all the soil of such Sect. 22. ways, and the property in the j^ipes, sewers, or drains, " shall vest in the local authority, subject to this provision, that compensation shall be paid by the local authority to any persons or ])odies of persons proved to have sustained loss by this section, and such compensation shall be deter- mined in the manner in which comj)ensation for lands is determinable under this part of this Act, or as near thereto as circumstances admit. ARTICLE 1. — A right to light over land is an easement within Owner of sect, 22, and the owner thereof is entitled to compensation. right to light entitled to This was decided under the corresponding section (sect. 20) of ^ the Artizans' and Labourers' Dwellings Improvement Act, 1875 (c) ; and the same rule applies to a landowner who is entitled to a right Right to of support (/■). support. In Bcoioic V. /io.s.s {(j) it was held that an owner of a house, to Xo prescrip- Avhich there had been access of light over land purchased by a *^^^"fj o L J acquired local authority under the Act for a period of ten years before and against local ten years after such purchase, did not gain an easement of light under the Prescription Act by reason of such twenty years' enjoy- ment. Such an owner would be entitled to compensation for the diminution in the value of his house by reason of being deprived of light. 23. A local authority ma}^ for the purpose of providing sect. 23. accommodation for persons of the working classes displaced Appikationof by any improvement scheme, appropriate any lands for the lands for ac- time being belonging to them which are suitable for the of woiSg°" purpose, or may purchase by agreement any such further classes. lands as niay be convenient. Part IL — Unhealthy Dwelling-house.s. oq * # # * # Sect. 29. The expression "owner,"' in addition to the definition "O^™'-'''- given by the Lands Clauses Acts, includes all lessees (e) Badhum v. .Morris (1882), 52 L. J. Ch. 231 ; 4d L. T. 579. (/) Sicuinstoii V. Finn and the Jiletrajio/itau Bunrd nf Works (1883), 52 L. J. Ch. 235 ; 48 L. T. 634 ; 31 W. R. 398. ((j) (1890), 24 Q. B. D. 381 ; 59 L. J. Q. B. 183 ; G2 L. T. 552 ; 38 W. E. 372 ; 54 J. P. 660. See also In re London, Tilbnri/, - such objections the local authority shall make an order either allowing the objection or directing that such ol)struc- tive building shall be pulled d(jwu, and such order shall be subject to appeal in like manner as an order of demolition of the local authority under the foregoing provisions of this part of this Act. (4.) Where an order of the local authority for pulling down an obstructive buildino- is made under this section and either no appeal is made against the order, or an appeal is made and either fails or is abandoned, the local authority shall be authorised to purchase the lands on ^^'hich the oljstructive building is erected in like manner as if they had Ijeen authorised by a Special Act to purchase the same ; and for the purpose of such purchase the pro- visions of the Lands Clauses Acts, with respect to the purchase and taking of lands otherwise than by agreement shall be deemed to be incorporated in this part of this Act (subject nevertheless to the provisions of this part of this Act), and for the purpose of the provisions of the Lands Clauses Acts this part of this Act shall be deemed to be the Special Act, and the local authority to be the promoters of the undertaking, and such lands may l)e purchased at any time within one year after the date of the order, or if it was appealed against after the date of the confirmation. (5.) The owner of the lands may within one month after notice to purchase the same is served upon him declare that he desires to retain the site of the obstructive building and undertake either to pull down or to permit the local authority to pull down the obstructive building, and in such case the owner shall retain the site and sliail receive 588 Cod' of the Law of Comprnsatiou. Sect. 38 r-ompeiisatioLi from the local authority for the pulling down of the obstructive building. (G.) The amount of such compensation, and also the amount of any compensation to be paid on the purchase of any lands under this section, shall in case of difference be settled by arbitration in manner provided in this part of this Act. (7.) Where the local authority is empowered to purchase land compulsorily, it shall not be competent foi* the owner of a house or manufactory to insist on his entire holding being taken, where part only is proposed to be taken as obstructive, and where such part proposed to be taken cau, in the opinion of the arbitrator to whom the Cjuestion of disputed compensation is submitted, be severed from the remainder of the house or manufactory without material detriment thereto, provided that compensation may be awarded in respect of the severance of the part so proposed to be taken in addition to the value of that part. (8.) Where in the opinion of the arbitrator the demolition of an ol)structive building adds to the value of such other buildinos as are in that l)ehalf mentioned in this section, the arbitrator shall apportion so much of the compensation to be paid for the demolition of the obstructive building as may be equal to the increase in value of the other buildings amongst such other buildings respectively, and the amount apportioned to each such other building in respect of its increase in value by reason of the demolition of such obstructive building shall be deemed to be private improve- ment expenses incurred by the local authority in respect of such Ijuilding, and such local authority may, for the purpose of defraying such expenses, make and levy improvement rates on the occupier of such premises accordingly ; and the provisions of the Public Health Acts relating to private improvement expenses and to private im})rovement rates, sbnll so far as circumstances admit, apply accordingly in the same manner as if such provisions were incorporated in this Act. (9.) If any dispute arises between the owner or occupier of any building (to which any amount may be apportioned in respect of ])rivate improvement expenses) and the arbitrator l)y whom such a})})ortionnient is made, such dispute shall be settled by two justices in manner provided by the Lands Clauses Acts, in cases where the compensation claimed in respect of lands does not exceed fifty pounds. (10.) AVhcre tlic owner retains the site or any part The Hom'uuj of the l]'orliit;j Classes Ad, 1890. 589 thereof, no house or other huikliiig or erection which will Sect. 38. be dangerous or injurious to health, or which will be au obstructive building within the meaning of this section, shall be erected upon .such site or any part thereof; and if any house, building, or erection is erected on the site contrary to the provisions of this section the local authority may at any time order the owner to aljate or alter the said house, building, or erection ; and in the event of non- compliance with such order may, at the expense of the owner thereof, al)ate or alter the same. (1 1 .) AVhere the lauds are purchased by the local authority the local authority .shall })ull down the obstructive building, or such part thereof as may l)e obstructive within the meaning of this section, and keep as an open space the whole site, or such part thereof as may be required to be kept open for the purpose of remedying the nuisance or other evils caused by such ol)structive Ijuilding, and may, with the assent of the Local Government Board, and upon such terms as that Board think expedient, sell such portion of the site as is not required, for the purpose of carrying this section into effect. (12.) A local authority may, where they so think tit, dedicate any land accjuired by them under the authority of this section as a highway or other public place. Scheme fur I!eronsti-iir(lo)i. 39. — ( i.j In any of the following cases, that is to .say — Sect. 39. (a) where an order for the demolition of a building has .^che^^or been made in pursuance of this part of this Act, and area compris- it appears to the local authority that it would be ciSedby^ beneficial to the health of the inhabitants of the closing order, neighbouring dwelling-houses if the area of the dwelling-house of which such building forms part were used for all or any of the following purposes, that is to say, either — (i.) dedicated as a highway or open space, or (ii.) appropriated, sold, or let for the erection of dwellino's for the workino- classes, or (iii.) exchanged with other neighbouring land which is more suitable for the erection of such dwellings, and on exchange will be appropriated, sold, or let for such erection ; or (b) where it appears to the local authority that the closeness, narrowness, and bad arrano-ement or bad 590 Code of the Law of Compensation. Sect. 39. condition of any Ijuildings, or tlie want of ligiit, air, — ventilation, or' proper conveniences, oi- any other sanitary defect in any buildings is dangerous or prejudicial to the liealth of the inhabitants either of the said buildings or of the neighbouring buildings, and that the demolition or the reconstruction and re- arrangement of the said buildings or of some of tliem is necessary to remedy the said evils, and that the area comprising tliose buildings and the yards, out- houses, and appurtenances thereof, and the site thereof, is too small to be dealt with as an unhealthy area under Part I. of this Act, the local authority shall pass a resolution to the above effect and direct a scheme to ])e prepared for the improve- ment of the said area. (2.) iS'otice of the scheme may at any time after the preparation thereof be served in manner provided in Part L of this Act with respect to notices of lands pro- posed to be taken compulsorily under a scheme made in pursuance of that part of this Act, on every owner or reputed owner, lessee or reputed lessee, and occupier of any part of the area comprised in the scheme, so far as those persons can reasonably Ijc ascertained. (3.) The local authority shall, after service of such notice, petition the Local Government Board for an order sanctioning the scheme, and the Board may cause a local inquiry to be held, and, if satisfied on the report of such local iiiquiry that the carrying into effect of the scheme either absolutely, or subject to conditions or modifications would be beneficial to the health of the inhabitants of the said Ijuildings or of the neighbouring dwelling-houses, may by order sanction the scheme with or without such conditions or modifi- cations. (4.) Upon such order being made, the local authority may purchase l)y agreement the area comprised in the scheme as so sanctioned, and if they agree for the purchase of the whole area, the order, save so far as it i)rovides for the taking of land otherwise than by agreement, shall take effect without confirmation. If they do not so agree, tlie order shall be published by the local authority by inserting a notice thereof in the London Gazette, and l)y s<'rving notice thereof on the owners of every part of the area. (5.) Any owner may, witliin two months after such }»nb- lication, petition llic liocal Goverinncnt Lojird against tlie ordci', ;iiid if such petition is presented an.c. 38 594 Code of the IjOw of Compensation. sect^i. portion only of the disputed cases brought before him. (7.) Tn the event of the death, removal, resignation, or incapacity, refusal, or neglect to act of any arbitrator before he shall have made his award, the Local Government Board may appoint another arbitrator, to whom all documents relating to the matter of the arbitration which were in the possession of the former arbitrator shall be delivered. (8.) The arbitrator may, where he thinks fit, on the recjLiest of any party by whom any claim has been made before him, certify the amount of the costs properly incurred by such party in relation to the arbitration, and the amount of the costs so certified shall be paid by the local authority. (9.) The arbitrator shall not give such certificate where the arbitrator has awarded the same or a less sum than has been offered by the local authority in respect of such claim before the appointment of the arbitrator, and need not give such certificate to any party where he considers that such party neglected, after due notice from the local authority, to deliver to that authority a statement in writing within such time, and containing such particulars respecting the com- pensation claimed, as would have enabled the local authority to make a proper ofi"er of compensation to such party before the appointment of the arbitrator. (10.) If within seven days after demand the amount so certified be not paid to the party entitled to receive the same, such amount shall be recoverable as a debt from the local authority with interest at the rate of five per cent, per annum for any time during which the same remains unpaid after such seven days as aforesaid. (11.) The award of the arbitrator shall be final and binding on all })arties. W TP 7^ TV* Part 111. — ^Workixg Class Lodging Houses. Adopt inn of Vart III. Sect. 63. 53. — (L) The expression " lodghig houses for the working Definition of classcs " wlicu uscd in this part of this Act sludl include purposes of separate houses or cottages for the working classes, whether The Housing of the IVorliiuj Classes Act, 181)0. 595 contaiiiin.f!; one or several tenements, and the purposes of sect. 53. this part of this Act shall include the provision of such Labouring houses and cottages. i^n^H^ ^^^"' (2.) The expression "cottage" in this part of this Act Acts. may include a garden of not more than half an acre, ])ro- A'ided that the estimated annual value of such garden .shall not exceed tliree pounds. 54. Tliis part of tliis Act may be adopted in the several sect. 54. districts mentioned in the first schedule to this Act by Adoptira of the local authorities in that behalf in that schedule this part of mentioned : Provided that in the case of any rural sanitary district in England, the adoption shall be only after such certificate and such delay as herein-after mentioned. 55. — (1.) A rural sanitary authority in any district sect^s. desiring to adopt this part of this Act may apply to the Provisions in county council of the county in which the area herein-after J^IJfnbvTJrai mentioned is wholly or as to the larger part thereof in sanitary extent situate for the certificate recjuiredfor such adoption, ^^^ '^^^^^' and .shall s})ecify in such application the area in which they consider that accommodation is necessary for the housing of the Avoi'king classes, and thereupon the county council shall direct a local incpiiry to be held by a membei" of the council or any officer or person appointed by the council for the purpose, and if after such local inquiry the person holding the inc^uiry certifies that accommodation is necessary in such area for the housing of the working classes, and that there is no probability that such accommodation will be provided without the execution of this part of this Act, and that having regard to the liability which will be incurred by the rates, it is under all the circumstances prudent for the said authority to undertake the provision of the said accommodation under the powers of this part of this Act, the county council may if they think fit publish that certificate in one or more local newspapers circulating in the district, and thereupon the sanitary authority may adopt this part of this Act: Provided that — (a) unless the county council state in publishing such certificate that, by reason of the date of the next ordinary election of members of such authority or otherwise, an emergency renders it necessary to adopt this part of this Act immediately, such adoption in pursuance of the certificate shall not take place before 38—2 596 Code of the Lair of Compensation. Sect. 55. the ordinary election of meml)ers of sncli authority which is hckl next after the date of the local inquiry ; and (h) after the end of twelve months from the date of the certificate, this part of this Act shall not be adopted without a fresh certificate ; and (c) no land shall be acquired, nor buildings erected under this part of this Act outside of the area mentioned in the certificate except after a fresh application, inquiry, and certificate. (2.) Where the rural sanitary authority think it just that the burden of the expenses of the execution of this part of this Act should be borne by some contributory place or places only in their district, instead of by the whole of their district, the authority may in their application to the county council request permission to limit the burden of such expenses to such contributory place or places, and thereui)on the justice of such limitation shall l)e inquired into at the local inquiry, and tlie county council, if satisfied after the local inquiry that the circumstances of the con- tributory place or places and of the rest of the district render such limitation just, may make an order to that effect, and thereupon the expenses of the execution of this part of this Act in the area mentioned in the order shall be borne by the contributory place or places named in the order instead of l)y the whole district. The provisions of this enactment with respect to the burden of the expenses shall apply upon every application for a fresh certificate. i'S.) Any expenses incurred by a county council in holding a local inquiry under this part of this Act shall be a simple contract debt to the council from the rural sanitary authority, and shall be defrayed as part of tlie expenses of such authority in the execution of this part of this Act. Execution of Vart 11 J. hi/ Local Authoritij. Sect. 56. 56. AVhere this part of this Act has been adopted in any Pow^f district, the local authority shall have power to carry it into local execution (subject to the provisions of this part of this Act authority. ^^.^^^ rcspcct to rural sanitary authorities), and for that pur})osc may exercise the same powers whether of contract or otherwise as in the execution of their duties in the case 18 & 19 Vict, of the London County Council under the Metropolis Management Act, 1855, and the Acts amending the same, or in the case of sanitary authorities under the Public c. 120 38 & 31) Vict, c. '>n. land. 38 & 39 Vict. c. 55. The HousuKj of the Woding Classes Act, 1890. 597 Hecaltli Acts, or in the case of the commissioners of sewers sect. 56. under the Acts conferring powers on such commissioners. 57. — (1.) Land for the purposes of this part of this Act sect. 57. may be acquired by a local authority in like manner as if Acquisition of those 23urpo8es were purposes of the Public Health Act, 1875, and sections one hundred and seventy-five to one hundred and seventy-eight, both inclusive, of that Act (relating to the purchase of lands\ shall apply accordingly, and shall for the purposes of this part of this Act extend to London in like manner as if the commissioners of sewers and London County Council respectively were a local authority in the said sections mentioned, and a Secretary of State were substituted for the Local Government Board. (2.) The local authority may, if they think fit, contract for tlie purchase or lease of any lodging houses for the working classes already, or hereafter to be built and provided. (3.) The local authority may, if not a rural sanitary authority with the consent of the Local Government Board, and if a rural sanitary authority with the consent of the county council of the county in which the land is situate, appropriate, for the purposes of this part of this Act, any lodging houses so purchased or taken on lease, and any other lan;l which maybe for the time being vested in them, or at their disposal. 58. The trustees of any lodging houses for the working Sect. 58. classes for the time being provided in any district by private Lo^al subscriptions or otherwise, mav, with the consent of a authority may . r. 1 • "'i 1 1 j_i purchase majority of the committee or other persons by whom they existing lodg- were appointed trustees, sell or lease the lodging houses to ing houses. the local authority of the district, or make over to them the manaoemeiit thereof. 59. The local autliority may, on any land acquired or sect. 59. appropriated by them, erect any buildings suitable for Erection of lodging houses for the working classes, and convert any ^^^s^^s buildings into lodging houses for the working classes, and may alter, enlarge, repair, and improve the same respectively, and fit up, furnish, and supply the same respectively with all requisite furniture, fittings, and conveniences. 60. A local authoritv mav, if not a rural sanitary autho- Sect. 60. rit}- with the consent of the Local Government Board, and *^J.^^^^^5e of lands. 598 Sect. 69. Code of the Law of Conipcmmtiou. if a rural sanitary authority with the consent of tlie county council of the county in which the land is situate, sell any land vested in them for the purposes of this part of this Act, and apply the proceeds in or towards the purchase of other land better adapted for those purposes, and may in like manner and with the like consent exchange any land so vested in them for land better adapted to the purposes of this part of this Act, either with or without paying or receiving any money for equality of exchange. # * # Sect. 72. Limit of area to be dealt with on official repre- sentation. Sect. 73. Provisions as to parts of Act nnder ■which reports are to be dealt with in county of London. Part IV. — Supplemental. 72. Where an official representation made to the London County Council in pursuance of Part I. of this Act relates to not more than ten houses, the London County Council shall not take any proceedings on such re[)resentation, but shall direct the medical officer of health making the same to represent the case to the local authority under Part IL of this Act, and it shall be the duty of the local authority to deal with such case in manner provided by that part of this Act. 73. — (L) In either of the following cases : (a) Where a medical officer of health has represented to any local authority in the county of Loudon under Part. IL of this Act that any dwelling-houses are in a condition so dangerous or injurious to health, as to be unfit for human habitation, or that the pulling down of any obstructive buildings would be expedient, and such authority resolve that the case of such dwelling- houses or buildings is of such general importance to the county of London that it should be dealt with by a scheme under Part I. of this Act ; or (1)) Where an official representation as mentioned in Part I. of this Act has been made to the London County Council in relation to any houses, courts, or alleys within a certain area, and that council resolve that the case of such houses, courts, or alleys is not of general importance to the county of London and should be dealt with under Part II. of this Act ; such local authority or council may submit such resolution to a Secretary of State, and thereupon the Secretary of State may appoint an arl)itrator, and direct him to hold a local inquiry, and such arbitrator shall hold such inquiry, Tlie HoiisiDii of thi' ]\'oiiiii>i Chiss^'s Art, 1890. 599 and report to the Secretcary of State as to whether, having sect. 73. regard to the size of the area, to the number of houses to be dealt with, to the position, structure, and sanitary con- dition of sueli houses, and of the neighbourhood thereof, and to the provisions of Part I. of this Act, the case is either wholly or partially of any and what importance to the county of London, with ]:)ower to such arbitrator to report that in the event of the case being dealt with under Part II. of this Act, the London County Council ought to make a contribution in respect of the expense of dealing with the case. (2.) The Secretary of State, after considering the report of the arbitrator, may, according as to him seems just, decide that the case shall be dealt with either under Part IL of this Act, or under Part L of this Act, and the medical officer of health or other proper officer shall forth- with make the representation necessary for proceedings in accordance with such decision. 74._(1.) The Settled Land Act, 1882, shall be amended ^''±^^- as follows : Amendment (a) Any sale, exchange, or lease of land in pursuance of ^f^^*^ gg ^ the said Act, when made for the purpose of the erec- i-egards ' tion on such land of dwellings for the working classes, ^^^^'^J^^^^g^f^,. may be made at such price, or for such consideration, working or for such rent, as having regard to the said purpose, classes. and to all the circumstances of the case, is the best that can be reasonaljly obtained, notwithstanding that a higher price, consideration, or rent might have been obtained if the land were sold, exchanged, or leased for another purpose. (b) The improvements on which capital money may be expended enumerated in section twenty-five of the said Act, and referred to in section thirty of the said Act, shall, in addition to cottages for labourers, farm servants, and artizans whether employed on the settled land or not, include any dwellings available for the working classes, the building of which in the opinion of the Court is not injurious to the estate. (2.) Any body corporate holding land may sell, exchange, or lease the land for the purpose of the erection of dwellings for the working classes at such price, or for such consideration, or for such rent as having regard to the said purpose and to all the circumstances of the case is the best that can reasonably be obtained, notwithstanding 600 Sect. 74. Code of tlie Lair of L'oinpcnsalion. that a liighei' price, consideration, or rent might have been obtained if the hind were sold, exchanged, or leased for another purpose. * Sect. 77. Power to local authority to enter and value premises. 77. Any person authorised by the local authority may at all reasonable times of the day, on giving twenty-four hours' notice in writing to the occupier of his intention so to do, enter any dwelling-house, premises, or building which the local authority are authorised to purchase com- pulsorily under Part I. or Part II. of this Act for the purpose of surveying and valuing such dwelling-house, premises, or building. to tenants for expense of removal. secws. 78. Where a building or any part of a building purchased Compensation by the local authority in pursuance of a scheme under *. ^ ._.-. p^^^^^ ^ or Part II. of this Act is not closed by a closing order, and is occupied by any tenant whose contract of tenancy is for less than a year, the local authority, if they recjuire him to give up possession of such building or part for the 23urpose of pulling down the building, may make to the said tenant a reasonable allowance on account of his expenses in removing. # Sect. 93. Definitions : " Land." '• Sanitarj' district."' '• Sanitary authority."' '• Urban and rural sanitary authority"' ; '"contributory l)lace."" '• Superior Court." " County of London." 93. In this Act, unless the context otherwise requires — The exjn-ession " land '' includes any right over land : The expression "sanitary district" means the district of a sanitary authority : The expression "sanitary authority" means an urban sanitary authority or a rural sanitary authority : The expressions "urban sanitary authority " and "rural sanitary authority " and " contributory place " have respectively the same meanings as in the Public Health Act, 1875 : The expression " Superior Court " means the Supreme Court : The exi)ression " county of London," except where specified to be the administrative county of London, means the county of London exclusive of the city of London, The Homiwj of the ]Vn\ii)ttj Classes Act, 1890. 001 SECOND SCHEDULE. 2nd schedule. Pkovisions with Eespect to the Purchase and Takix(i section 20. OF Lands in England otherwise than by Agree- ment, AND otherwise AMENDING THE LaNDS ClAUSES Acts. J>(-JKIS/t of J/"/'-S (lUll I '1(1 IIS. (1.) The local autlioiity shall as soon as practicable after ^."~J;^f3'^.;^^ the passing of the confirming Act cause to be made out, scii. and to be signed by their clerk or some other principal officer appointed by them, maps and scheduh-s of all lands proposed to be taken compulsorily (which hinds are hereinafter referred to as the scheduled lands), together with the names, so far as the same can be reasonably ascertained, of all persons interested in such lands as owners or reputed owners, lessees or reputed lessees, or occupiers. (2.) The maps made by the local authority shall be upon such scale and be framed in such manner as may be prescribed by the confirming authority. (3.) The "local authority shall deposit such maps and schedules at the ofiice of the confirming authority, and shall deposit and keep copies of such maps and schedules at the ofiice of the local authority. Jplioiiitiiiriit of Artiifrntor. (4.j After such deposit at the ofiice of the confirming authority as aforesaid, it shall be J awful for the confirming authority, upon the application of the local authority, to appoint an arbitrator between the local authority, and the persons interested in such of the scheduled lands, or lands injuriously aff"ected by the execution of such scheme, so far as compensation for the same has not been made the subject of ao;reement. I'roceediri'js on Arhltratioii. (5.) Before any arbitrator enters upon any inquiry he 4:. .t 4.; vict. 1 n • 1 £■ ■ ^- r ri 1 J c. r,4, Sch. shall, m the presence 01 a justice 01 the peace, make ana (!).«_/. subscribe the following declaration ; that is to say, "I A.B. do solemnly and sincerely declare, that I will faithfully and honestly, and to the Ijest of my skill and ability, hear and determine the matters referred to me under the provisions of the Housing of the Working Classes Act, 1890. A.B. "JMade and subscribed in the presence of .," c Art. 1 602 Code of the Law of Coinpcnsatiou. 2nA Schedule. And sucli declaration shall he annexed to the award when made ; and if any arljitrator, having made such declaration wilfully act contrary thereto, he shall be guilty of a misdemeanor. (6.) As soon as an arbitrator has been appointed as aforesaid, the confirming authority shall deliver to him the maps iind schedules deposited at their office, and the local authority shall publish once in each of three successive weeks the following particulars : — (1.) The appointment of the arbitrator; and (2.) The deposit at the office of the local authority of the co]3ies of such maps and schedules as aforesaid, with a description of the situation of such office, and a statement of the time at which such copies may lie inspected by any person desirous of inspecting the same. 42 & 43 Vict. Such publication shall be made not only by advertise- 03,^Sch. ment, but also by placards and handbills affixed in con- spicuous j)laces on or near the lands to be taken, and also by leaving a notice thereof at each house proposed to be taken, and also Ijy sending a notice thereof by post to the persons interested in such lands as owners or reputed owners, lessees or reputed lessees, so far as they can be reasonably ascertained. Notice of ARTICLE 1. — The notice of publication referred to in sect. 6 (2) analo^ous"o^^ °^ ^^^^ schedule is analogous to a notice to treat, and a landowner notice to affected by it cannot afterwards alter his position. t reat. So held in WilJiins v. Mayor of Birminriltam (l), under the corresponding section in the schedule of the Artizaus' and Labourers' Dwellings Improvement Act, 1875, now repealed. (7.) In every case in which compensation is payable under l^nt I. of this Act, by the local authority to any claimant, and which compensation has not been made the subject of agreement (in this Act referred to as " a disputed case"), the arbitrator shall ascertain in such manner as he thinks most convenient the amount of compensation demanded bv the claimant, and the amount which tlic local authority may be willing to pay ; and after hearing all such parties interested in each disputed case as may appear before him at a time and place of which notice has been given as in Part I. of this Act mentioned, he shall (/) (1883), 25 Ch. 1). 78 ; o.i L. J. Ch. iKi; 49 L. T. 468 ; 3l> W. E. 118; 48J. P. 231. TJir Housiiui of the ]\'orliinj Classes Act, 18U0. 603 proceed to decide on the amoiuit of compensation to wliieli 2nd schedule, he may consider the claimant to be entitled in each case. (8.) The arbitrator shall give notice to the claimants in disputed cases by causing such notice to be published or otherwise in such manner as he thinks advisable, of a time and place at which the difference between the claimants and the local authority in disputed cases as to the amount of compensation to be paid will be decided by the arbitrator. (9.) After the arbitrator has arrived at a decision on all the disputed cases brought before him he shall make an award under his hand and seal, and such award shall be final, and be binding and conclusive (subject to the provisions concerning an appeal hereinafter contained) upon all persons whomsoever, and no such award shall be set aside for irregularity in matter of form, but the arbitrator may and, if the local authority recpiest him so to do, shall from time to time make an award respecting a portion only of the disputed cases brought before him. (10.) Such award as aforesaid shall be deposited at the office of the confirming authority, and a copy thereof shall be deposited at the office of the local authority, and the local authority shall thereujjon publish once in each of three successive weeks notice of the deposit having been made at the office of the local authority of a copy of the award, and a further notice recpiiring all persons claiming to have any right to or interest in the lands (the compensa- tion to be paid in respect of which is ascertained by such award) to deliver to the local authority on or before a day to be named in such notice (such day not being earlier than twenty-one days from the date of the last publication of the notice), a short statement in writing of the nature of such claim, and a short abstract of the title on which the same is founded ; and such statement and abstract shall be paid for by the local authority. Such abstract of title, in the case of a person claiming a fee simple interest in the land, shall commence twenty years previous to the date of the claim, except there has been an absolute conveyance on sale within twenty years, and more than ten years previous to the claim when the abstract shall commence with such conveyance. ARTICLE 1. — The ownership of the property is not transferred Ownership of until a final award has been made by the arbitrator. ImnSelr'T rpi • ■,.-,,. Til- -TTi 1 until final Inis was aecided m a case under the Artizans and Labourers award. Dwellings Improvemeut Act, 1875, which required the arbitrator 604 Code of the Law of Coiiipenstition. 2nd Schedule, to make a provisional and a final award (;;0- The ownership is not, therefore, transferred after service of the notice. Under the same Act it was also decided, that where an arbitrator by mistake omitted a claim that had been sent in to the local authority from the provisional award, he was nevertheless justified in including it in the final award (»). Power of arbitrator as to apportion- ment. 42 & 43 Vict. e. 63, Sch.C-M. Amendment respecting severance of properties. 8 & 9 Vict, c. 18. 42 & 43 Vict. C.63. .Sell. (3). Omitted interests. 42 & 43 Vici . c. 63, Sch.(lj. Specidl I'oirers for Arhitnitioii. (11.) The arbitrator shall have the same power of ap- portioning any rent-service, rent-charge, chief or other rent, payment, or incumbrance, or any rent payable in respect of lauds comprised in a lease, as two justices have under the Lands Clauses Consolidation Act, 1845. (12.) Notwithstanding anything in section ninety-two of the Lands Clauses Consolidation Act, 1845, the arl)itrator may determine that such part of any house, building, or manufactory as is proposed to be taken by the local authority can l)e taken without material damage to such house, building, or manufactory, and if he so determine may award compensation in respect of the severance of the part so i)roposed to be taken, in addition to tlie value of that part, and thereupon the party interested shall be required to sell and convey to the local authority such part, without the local authority being obliged to purchase the greater ]iart or the whole of such house, building, or manufactory. The local authority, or any person interested, if dis- satisfied with a determination under this enactment, may, in manner provided with respect to appeals to a jury in respect of compensation for land by this schedule, suljuiit the question of whether the said part can ])e taken without material damage, as well as the question of the proper amount of comp)ensation, to a jury ; and the notice of intention to appeal shall he given within the same time as notice of intention to appeal against the amount of conqjensation awarded is re(]iiired to l)e given. (13.) The amount of purchase-money or compensation to be paid in jjursuance of section one; hundred and twenty- four of the Lands Clauses Consolidation Act, 1845, in respect of any estate, right, or interest in or charge afiecting any of the scheduled lands which the local authority have through mistake or inadvertence failed or omitted duly to (in) Burnet v. Metropolitan Board of Works (1882), 46 L. T. 384. (//) Carr v. Metroiiolitan Hoard of ' Works (1S8()), 14 Ch. D. 807 ; 40 L. J. Ch. 272. Hie Hom'nuj of thr ]Vodiini Classes Art, 1890. 605 purchase or make coni})eiisatioii for, shall be awarded l)y 2nd schedule, the arbitrator, and be paid, in like manner, as near as may be, as the same would have been awarded and paid if the claim of such estate, right, interest, or charge had been delivered to the arbitrator before the day fixed for the delivery of statements of claims. If the arljitrator is satisfied that the failure or omission to purchase the said estate, right, interest, or charge, arose from any default on the part either of the claimant or of the local authority, he may direct the costs to Ije paid by the party so in default. Faiimcnt of runliase-Moneii. (14.) AVithin thirty days from the delivery of such state- Arts. 14—24. ment and abstract as aforesaid to the local authority, the '/.^^.^^ '\l^ local authority shall, where it appears to them that any sch. person so claiming is absolutely entitled to the lands, estate, or interest claimed by him, deliver to such person, on demand, a certificate stating the amount of the com- pensation to which he is entitled under the said award. (15.) Every such certificate shall be prepared by and at the cost of the local authority ; and where any agreement has been entered into as to the compensation payable in respect of the interest of any person in any lands, tlie local authority may, where it appears to them that such person is absolutely entitled, deliver to such person a like certificate. (16.) The local authority shall, thirty days after demand, pay to the party to whom any such certificate is given, or otherwise as herein provided in the cases herein-after men- tioned, the amount of monej's specified to be payable by such certificate to the party to whom or in whose favour such certifi- cate is oiven, his or her executors, administrators, or assimis. (17.) If the local authority wilfully make default in such payment as aforesaid, then the party named in such certificate shall be entitled to enter up judgment against the local authority in the High Court, for the amount of the sums specified in such certificate, in the same manner in all respects as if he had been, by warrant of attorney from the local authorit}', authorised to enter up judgment for the amount mentioned in the certificate, Avith costs, as is usual in like cases ; and all moneys payable under such certificates, or to Ije recovered by such judgments as afore- said, shall at law and in equity be taken as personal estate as from the time of the local authority entering on any such lands as aforesaid. 606 Code of the L((ir of Conipeusation. 2nd Schedule. (18.) Wlieii and SO soou as the local authority have paid to the party to whom auy such certificate as aforesaid is given, or otherwise, as herein provided, in the cases herein- after mentioned, the amount specified to be payable by such certificate to the party to whom or in whose favour the certificate is given, his executors, administrators, or assigns, it shall be lawful for the local authority, upon obtaining such receipt as herein-after mentioned, from time to time to enter upon any lands in respect of which such certificate is given, and thenceforth to hold the same for the estate or interest in respect of which the amount specified in such certificate was payable. (19.) In every case in which any moneys are paid by any local authority under this Act for such compensation as aforesaid, the party receiving such moneys shall give to the local authority a receipt for the same, and such receipt shall have the effect of a grant, release, and conveyance of all the estate and interest of such party, and of all parties claiming under or through him, in the lands in respect of which sucli moneys are paid, provided such receipt has an ad valorem stamp of the same amount impressed thereon in respect of the purchase-moneys mentioned in such certificate as would have been necessary if such receipt had been an actual conveyance of such estate or interest, every such receipt to be prepared by and at the cost of the local authority. (20.) If it appear to the local autliority, from any such statement and abstract as aforesaid, or otherwise, that the person making any such claim as aforesaid is not al)solutely entitled to the lands, estate, or interest in respect of which his claim is made, or is under any disability, or if the title to such lands, estate, or interest Ije not satisfactorily deduced to the local authority, then and in every such case the amount to be paid l)y the local authority in respect of such lands, estate, or interest as aforesaid shall be paid and applied as provided by the clauses of the Lands Clauses Consolidation Act, 1845, as amended by the Court of Chancery Funds Act, 1872, "with respect to the purchase- money or compensation coming to parties having limited interests, or prevented from treating, or not making title." (21.) Where any person claiming any right or interest in any hmds refuses to produce his title to the same, or where the local authority have under the provisions of Part I. of this Act taken possession of any lands in respect of the compensation whereof, or of any estate or interest Thr Housliifi of the Woiiimj Chiss^'s Aii, 1890. 007 wherein, do claim has Ijeen made within one year from the Snd Schedule, time of the local authority taking possession, or if any party to whom any such certificate has been given or tendered refuses to receive such certificate, or to accept the amount therein specified as payable to him, then and in any such case the amount payable by the local authority in respect of such lands, estate, or interest, or the amount specified in such certificate, shall be paiurpose. 10. — (1.) The Commissioners of Woods with the consent sect, lo. of the Treasury, as to land belonging to the Crown, the Provi.sionas Chancellor and Council of the Duchy of Lancaster by deed to land J ^ belono'ing to under the hand and seal of the Chancellor, attested by the Cro\vn,&c. clerk of the Council, as to land forming part of possessions of the Duchy of Lancaster, and the Duke of Cornwall or other the persons for the time being having power to dispose of land belonging to the Duchy of Cornwall, as to land forming part of possessions of that duchy, may lease land for military purposes to a Secretary of State or a volunteer corps for a term not exceeding twenty-one years, but the lease shall cease to have effect if the land ceases to be used for military purposes. (2.) Where any land is vested in the Crown and is under the manao-ement of any commissioners or departments other than the Commissioners of Woods, and where land is held by anv public department for the public service, the com- missioners or department having the management of the lands may exercise, as regards the land, any powers which under this Act may be exercised as respects land belonging to the Crown by the Commissioners of Woods. (3.) The Commissioners of Woods may lease to a Secre- tary of State or to a volunteer corps for military purposes any portion of such royal parks, gardens, and possessions as are under the management of those Commissioners, for a term not exceeding twenty-one years, and subject to such 622 Codr of thi' Jjiw of Compenmtion. public purposes Sect. 10. conditions as the commissioners think fit ; l)ut the lease shall be at all times revocable by Her Majesty. Sect. 11. 11. — (1.) Any person, body of persons, or authority Pow^ieasc holding land for ecclesiastical or public purposes may land held for jg.^g^ ^iiy such land to a Secretary of State or to a volun- teer corps for military purposes for any term not exceeding twenty-one years, subject to the following provisions : (a) An ecclesiastical corporation sole l;elow the dignity of a bishop shall not grant any such lease without the consent in writing of the bishop to whose jurisdiction he is subject, and of the patron of tlie preferment to which the land belongs, or the guardians or trustees of such patron : (b) A lease of parochial property shall be granted under and in accordance with the provisions of section three of the Union and Parish Property Act, 1835, and the Acts amending the same : (c) Where the land is vested in any trustees, commis- sioners, or other body of persons, a majority of a meeting of such trustees, commissioners, or other body of persons duly convened may grant a lease under this section and execute any instrument for that purpose : (d) Where the land belongs to an administrative county, the county council may grant a lease under this section with the consent of the Local Government Board. (2.) A lease under this section shall cease to have effect if the land ceases to be used for military purposes. 5&6Will.IV c. 69. Sect. 12. Proof that land has ceased to be used for military- purposes. Sect. 13. Power to stop or divert footpaths. .-).t(;Will.IV. c. .-.0. 12. Any land leased under this Act shall be deemed to have ceased to be used for military purposes where there has not been such use for a period of one year, and a certi- ficate of the fact of such non-user is given by a Secretary of State ; and the certificate shall be conclusive evidence of the fact of such non-user. 13. — { 1.) AVhere a footpath crosses or runs inconveniently or dangerously near to any land leased under this Act, that footpath may, with the consent of the vestry of the parish in which the same is situate, and on the certificate of two justices that the footpath to be substituted is convenient for the public, l)e stopped up or diverted. (2.) The provisions of the Highway Act, 1835, as to the obtaining of a certificate and the stopping up or diverting a liigliway where a person other than the inhabitants or vestry Tin' MiJitarij Laiuh Art, 1802. 623 are desirous of stopping up, divertiuo-, or turuiug a liigliway Sect. 13. shall apply so far as practicable to the obtaining of a certifi- <3ate, and the stopping up or diverting a footpath under this section; with this exception, tliat the certificate of the justices shall ])e conclusive in cases where it states the fact of their having viewed the footpath to be stopped up or diverted, ^md that the proposed new footpath is convenient for the public. -3r ^ w ^ tP Part III. Sujiph'inottfil. 19. This Act shall apph' in the case of a yeomanry corps sect. 19. as if it were a volunteer corps ; and all land acquired by a Application of yeomanry corps shall vest in the commandino- officer of the ^ctto corps for the time being and his successors in office with corps. power for him to sue and make contracts and conveyances and to do all other lawful acts relating thereto. 20. AVhere any laud is acquired under this Act or for Sect. 20. military purposes under any Act with which the Lands power tohave Clauses Acts are incorporated, the person or authority compensation acquiring the lalid may require that the compensation to arbitration, be paid for the land be settled by arbitration and not by reference to a jury, and thereupon the provisions of the Lands Clauses Acts with reference to arbitration shall, if not already applicable, apply for the purpose of settling compensation. 21. "Where the Secretary of State certifies that it is sect. 21. necessary for the purposes of coast defence operations po^^Tto that alignment marks should be provided in any places enter on land upon the coast, the following provisions shall apply for ment male's, that purpose : — (a) Any person authorised Ijy the Secretary of State may, after seven days' notice to the owner of the land, enter upon any land for the purpose of erect- ing, repairing, or replacing such alignment marks, and may do all things necessary for any such pur^Dose, but shall do as little damage to the land as possible. (bj Full compensation shall be paid to the owner of the land for any damage caused in or by the erection, repair, or replacement of such alignment marks, and 624 Sect. 21. 52 & r)S Vict. c. 49. Code of the Lair of Compensation. iu Ccxse of dispute the amount of compensation shall be determined by arbitration under the Arbitration Act, 1889. (c) If any person refuses to permit any authorised person to enter upon any land for the purpose of this section ^ or obstructs the erection, repair, or replacing, of any such alignment marks, or destroys, displaces, damages, or obstructs, any such alignment marks, he shall be liable on summary conviction to a fine not exceeding five pounds. Sect. 22. 22. All powers given by this Act shall be in addition to savi^pTor ^^7 other power to acquire land for military purposes con- acquisition of ferred by any Act passed before tliis Act, and nothing o^her^Act^s^ contained in this Act shall prejudicially affect the powers vested in the Secretary of State for AVar under the Defence Acts and the Acts incorporated therewith. Sect. 23. Iiitcrprcta- tiou. 23. In this Act the expression "military purposes" includes rifle or artillery practice, the building and en- largino; of barracks and camDs, the erection of butts, targets, batteries, and other accommodation, the storing of arms, military drill, and any other purpose connected with military matters approved by the Secretary of State. In this Act and the enactments incorporated therewith the expression " land " includes any easement in or over lands, and for the purpose of Part I. of this Act includes any right of firing over lands or other right of user. By sect. 3 of the Military Lands Act, 1900 (Ij), " laud " in this section includes the bed of the sea or any tidal river. (h) Post, p. 627. 625 THE MILITARY LANDS ACT, 1900 (63 & 64 Vict. c. 56). An Act to amend the Militanj Lands Art, 1892. [8th August, 1900. Be it enacted by the Queen's most Excellent ]\Lajesty, by and with the advice and consent of tlie Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. — (l.) The council of a county or Ijorough holding sect. i. land on l»ehalf of one or more volunteer corps under sub- ^. ~"~. section three of section one of the ^Military Lands Act, 1892, borough " may lease the land or any part thereof to an}' such corps f^ase^inTa^d for militarv purposes for a period not exceeding ninety-nine volunteer years. ' ^^^''P' ""'^y J borrow on (2.) The powers of a volunteer corps to borrow and of security of the Public Works Loan Commissioners to lend under the ^^^^' Military Lands Acts, 1892 and 1897, shall extend to borrowing and lending on the security of any such lease. (3.) If the volunteer corps is disbanded or the land ceases to be used for military purposes, the lease shall vest in the Secretary of State, subject to repayment of any money borrowed on the security of the lease and not already repaid. 2. — (1.) AVhere any land is for the time being appro- sect. 2. priated by the Admiralty for any purpose of Her Majesty's provi^ as Navy, or used by the Admiralty for any such purpose, the '^ byeiaws. Admiralty shall have the same power of making byelaws with respect to the land as may be exercised by a Secretary of State with respect to land appropriated or used for a military purpose, as the case may be, and the provisions of the Military Lands Act, 1892, relating to byelaws shall r,.5 ,.^: .-,6 Vict. apply accordingly. (2.) Where any land, the use of which can be regulated by byelaws under the Military Lands Act, 1892, or this Act, abuts on any sea or tidal water, or where rifle or artillery practice is or can be carried on over any sea, tidal water, or shore, from any such land, byelaws may Ije made L.c. 40 48. (326 Cock of the Law of Compensation. Sect. 2. ill relation to any sucli sea, tidal water, or shore, as if they Avere part of the land. Provided that — (a) If any such l)yela\v injuriously affects or ol»structs the exercise of any private right of any person in or over any such sea, tidal water, or shore, that person shall be entitled to compensation, and the compensa- tion shall, in case of difference, be ascertained in manner provided by the Lands Clauses Acts with respect to the compensation for land taken otherwise than by agreement ; and (1j) Any such byelaw shall not injuriously affect any public right within the meaning of this section unless made with the consent of the Board of Trade, l)ut the Board of Trade, if satisfied after such inquiries and such notice and opportunity for ol>jections as herein- after mentioned tliat a restriction of any public right is required for the safety of the pul^lic, or for the exigencies of the military or naval purpose for which the area to which the byelaws apply is used, may consent to a jjyelaw restricting the public right to such extent as under all the circumstances of the case seems reasonable ; and (c) No such byelaw shall l)e made in relation to any sea, tidal water, or shore which may for the time being be vested in Her Majesty, and under the manasfement of the Commissioners of Woods, without the consent in writmg of such commissioners on behalf of Her Majesty first had and obtained for that purpose, which consent such commissioners are hereby authorised to give. (3.) The Board of Trade, before consenting to any bye- law under this section, shall cause notice of the byelaw to be given by advertisement or otherwise in the locality, in order that any such town, harbour, and other local authorities and persons as are interested may have an opportunity for making objections to the l)yelaw, and shall consider any ol)jections made, and shall make such inquiries as appear to the Board necessary for the purpose of ascer- taining that tlie l)yelaw will not unreasonably interfere vvitli any public right. (4.) For the purposes of this section "public right" means any right of navigation, anchoring, grounding, fishino;, Itatliiuii:, walkinof, or recreation. (5.) A\'here an area to which byelaws under this section The MiUtanj Laiuh Act, 1900. 627 apply (30ii.si.sts of any sea or tidal water, or the sliore thereof, sect 2. iiiid the boundaries of the area cannot, in the opinion of the authority making the byelaws, be conveniently marked by jjermanent marks, those boundaries shall be described in the byelaws, and shall be deemed to be sutiiciently marked within the meaning of section seventeen of the Military Lands Act, 1892, if, while the area is in use for military or naval purposes, sufficient means are taken to warn the public from entering the area. (6.) Section three of the Artillery and Eifie Eanges 48&49Vict. Act, 1885, is hereby repealed. 3. Section twenty-three of the Military Lands Act, 1892, sect. 3. shall have effect as if the definition of "land" in that Extern of .section included the bed of the sea or any tidal water, and !"f J'^^'^'^p *^^ also any right of interference with the free nse of any laud, and the Military Lands Act, 1892, as extended by the ^'aval Works Act, 1895, and as amended by this Act, shall 58&59 vict. be construed accordingly. 4. Notwithstanding anything in section two of the sect^4. Military Lands Act, 1892, the ]jeriod of three years men- Amendment tioned in section one hundred and twenty-three of the y-^^^%^ Lands Clauses Consolidation Act, 1845, shall be calculated s.2.a.sto ' from the passing of the Act confirming any provisional ij.fcompir order under the Military Lands Act, 1892, and not from sory pm-chase. the passing of the MiUtary Lands Act, 1892. # 6. This Act shall be construed as part of the IMilitary sect. 6. Lands Act, 1892, and may be cited as the Military Lands short title Act, 1900, and the Military Lands Act, 1892, the Military and^con- Lands Act, 1897, and this Act, may be cited collectively ""*' as the Military Lands Acts, 1892 to 1900. 40—2 628 THE MERCHANT SHIPPING ACT, 1804 {hi k 58 Vict. c. 60). An Act to consolidate Enactments relating to Merchant Shipping. [2 5 th August, 1894. # # # # # . Sect. 639. 639. — (1.) A general lighthouse authority may take and p , iiurchase any Land which may ha necessary for the exercise Powers as to ^p,.,. y, c ^ • r ^ • land. of their lighthouse powers, or lor the maintenance ot their works, or for the residence of the light keepers, and for that purpose the Lands Clauses Act shall be incorporated with this Act, and shall apply to all lighthouses to l^e constructed and all land to be purchased under the powers thereof. (2.) A general lighthouse authority may sell any land belonging to them. * 629- THE LIGHT RAILWAYS ACT, 1896 (59 & GO Vict. c. 48). An Art, to faciUtate the Constractioii of Li'ulit Bailirujjs in Great Britain, [Utli August, 1896. 2. An application for an order authorising a light rail- Sect^. way under this Act shall 1)6 made to the Light Eailway Application Commissioners, and may be made — ^ authorising (a) By the council of any county, borough, or district, light railways, through any part of which the proposed railway is to pass ; or (b) By an}^ individual, corporation, or company ; or (c) Jointly by any such councils, individuals, corporations, or companies. 3. — (l.) The council of any county, borough, or district, Sect. 3. may if authorised ])y an order under this Act — (a) Undertake themselves to construct and work, or to contract for the construction or working of, the light railway authorised ; (b) Advance to a light railway company, either by way of loan or as part of the share capital of the company, or partly in one way and partly in the other, any amount authorised by the order ; (c) Join any other council or any person or body of persons in doing any of the things above mentioned ; and id) Do any such other act incidental to any of the thino-s above mentioned as mav be authorised by the order. (2.) Provided that— (a) An order authorising a council to undertake to construct and work or to contract for the construction or working of a light railway, or to advance money to a light railway company, shall not be made except on an .application by the council made in pursuance of a special resolution passed in manner directed Ijy the first schedule to this Act ; and (b) A council shall not construct or work or contract for 630 Sect. 3. Code of the Law of Co}i)pens((tiou. tlie construction or working of any light railway wholly or partly outside their area, or advance any money for the purpose of any such railway, except jointly with the council of the outside area, or on proof to the satisfaction of the Board of Trade that such construction, working, or advance is expedient in the interests of the area of the first mentioned council, and in the event of their being authorised so to do their expenditure shall l)e so limited by the order as not to exceed such amount as will in the opinion of the Board of Trade bear due proportion to the benefit which may be expected to accrue to their area from the construction or workino- of the o railway. Sect. 13. Mode of settling jiur- chase-money and compen- sation for taking land. r>2k->?.\\ct. c. 49. 13. — (1.) AVhere any order under this Act incorporates the Lands Clauses Acts, any matter which under those Acts may be determined l)y the verdict of a jury, by arbitration, or by two justices, shall for the purposes of the order be referred to and determined by a single arbitrator appointed by the parties, or if the parties do not concur in the appointment of a single arbitrator then by the Board of Trade, and the provisions of this Act shall apply with respect to the determination of any such matter in lieu of those of the Lands Clauses Acts relatino- thereto. Provided that in determining the amount of compensation, the arbitrator shall have regard to the extent to which the remaininor and contiouous lands and hereditaments belono- mg to the same proprietor may be benefited by the proposed light railway. (2.) The Board of Trade ma}', with the concurrence of the Lord Chancellor, make rules fixino- a scale of costs to be a})plicable on any such arbitration, and may, by such rules, limit the cases in which the costs of counsel are to be allow^ed; (3.) The Arbitration Act, 1889, shall apply to any arbitration under this section. Gai THE METROPOLIS AVATER ACT, 1902 (2 Edw. \U., c. 41). An Act for estahUsli'uKj a Water Board to nianatir the ^apphj of Water ivithin London and certain ((djoininu Districts, for transferring to the Water Board the Undertalintjs of the Metropolitan Water Companies, and for other Vurposes connected there irith. [18tli Decem1)er, 1902. Be it enacted by the King's most Excellent Majesty, by and with tlie advice and consent of tlie Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and l»y the authority of the same, as follows : Estalilislnnent of ]]'ater Board. 1. — (1.) A board, to be called the Metropolitan AVater sect. i. Board, and in this Act referred to as "the Water Board," Estabii^- shall be established for the purpose of acquiring by pur- ment of Water chase and of managing and carrying on the undertakings °^^' " of the companies mentioned in the first schedule to this Act (in this Act referred to as " metropolitan water com- panies"), and generally for the purpose of supplying water ^\ithin tlie area described in the second schedule to this Act, suljject to such alterations therein as may be made by or under this Act (which area is in this Act referred to as " the limits of supply") . (2.) The Water Board shall be a body corporate with a common seal, having power to acquire and hold land for the purposes of this Act without licence in mortmain. (3.) Subject to the provisions of this Act, the Water Board shall consist of a chairman, a vice-chairman, and other members ; the chairman and vice-chairman shall be appointed by the Water Board, and the other members shall be appointed as follows : — - Fourteen by the London County Council. Two by the common council of the City. Two by the council of the city of Westminster. One by the council of each of the other metroi>olitan boroughs. One by the county council of Essex. Two by the council of the borough of AVest Ham. 632 Code of tlie Law of Compensation » Sect. 1. One Ly the council of the urban district of East Ham. One by the council of the urban district of Leyton, One by tiie council of the urban district of Walthamstow. One by the councils of the urban districts of Buckhurst Hill, Chingford, Loughton, Waltham Holy Cross, Wanstead, and AYoodford. One by the county council of Kent, One by the councils of the urban districts of Beckenham, Brondey, Chislehurst, Penge, Bexley, Dartford, Erith, and Footscray. One by the county council of Middlesex. One by the council of tlie urban district of Tottenham. One by the council of the urban district of Willesden. One by the council of the borough of Ealing and the councils of the urban districts of Acton and Chiswick. One by the councils of the urban districts of Brentford, Hampton, Hampton AVick, Hanwell, Heston and Isle- worth, Suubury, Teddington, and Twickenham. One by the councils of the urban districts of Edmonton, Enfield, and Southgate. One by the councils of the urban districts of Hornsey and Wood Green. One by the county council of Surrey. One by the council of the boroug-h of Kingston and the councils of the urban districts of East and West JMolesey, Eslier and the Dittons, Ham, Surbiton, Barnes, the jMaldens and Coombe, and Wimbledon. One l)y the county council of Hertfordshire. One by the Conservators of the River Thames. One by the Lee Conservancy Board. (4.) The Water Board may pay to the chairman and vice-chairman or either of them such salary or salaries as the Board may determine. (5.) Subject to the provisions of this section the pro- visions of the third schedule to this Act with respect to the constitution and proceedings of the Water Board shall have efiect. Traiisftr to Water lliuinJ of' CiuJevtalitKis of Conipaniei^. Sect. 2. 2. — (1.) Subject to the provisions of this Act, as from Tjansfi?7of ^^^^ appointed da}- the undertaking of each of the metro- undertakinjjs poUtau watcr compauics shall be transferred to and shall plnlSTo'' ""' ^^^^ ^'^ t^^^ Water Board, and there shall also be transferred Boaifi. from each company to the Water Board all liabilities with respect to any debenture stock or mortgage debt of such The Metropolis Water Aet, 1902. 633 company, and all other debts, liabilities, and obligations of sect. 2. such company then existing. (2.) The Water Board shall pay to each company, as compensation for the transfer of their undertaking, such sum as may be agreed on between the Board and the com- pany, or, in default of agreement, as may be determined by arbitration under this Act, but the sum so payable may, if the Water Board and the company so agree, be discharged wholly or partly in \vater stock. (3.) An agreement for the purposes of this section shall not be made except in pursuance of a resolution of an absolute majority or the whole number of the Water Board after ten clear days' notice in writing of the meeting and of the intention to propose the resolution has been given to every member of the Board, and any such notice shall state tiie amount of the sum to be paid, or of the water stock to be issued, under the proposed agreement. Any such agreement shall be valid only if and so far as it is confirnied by the Court of Arbitration constituted by this Act, and that Court may confirm the agreement either with or without modifications. Arhttr o 03 • M WENT e wner "^ H ^ ^ B^ •O a H 2 1 1 « -t-3 ^ f^H & r^ s ■ ^ o a CO Names of persons having the custody of the doeuments of title and till! place, or jjlaces, wliero they may be inspected. Particulars of claim, distinguishing sejiarately the amount claimed for value of the land and heredita- ments, and the amount claimed for damages by severance, trade loss, &c. Nature of interest, whether owner, lessi!(% or yearly tenant. If owner, whi^tlier in fee or in tail for life ; if leasehold, state landlord's name, rent reserved, and length of term. 1 f yearly tenancy, state date of commencement of tenancy. Ill ill .S .£ 5 5 jj d " 3 ■z. Igl 1 ? " e4-r o o 05 03 03 ft Precedents. G43 Form No. 3. Notice to Treat for an Easement. To X. Y., of , and to all other persons interested in the lands hereinafter mentioned or described. In pursuance of the [special] Act, and of the Lands Clauses Consolidation Acts and the other Acts incorporated therewith, I hereby, on behalf of the Company, give j^ou and each of you notice that the said Company require for the purposes of their undertaking an easement and right in perpetuity [of placing and laying and of thereafter maintaining, cleansing, repairing, replacing and relaying water pipes in, through, or under] the lands and hereditaments, more particularly described in the schedule hereto, and which said lands and hereditaments are delineated on the plan attached hereto or delivered herewith and are thereon coloured pink, which said easement and right the said company are by the said [special] Act authorised to purchase or take. And I hereby, on behalf of the said company, demand of you and each of you the particulars of your estate and interest in the said lands and here- ditaments and (^f the claim or claims made by you and each of you in respect of the said easement or right [of laying, maintaining, itc, the said water pipes]. And I hereby further give you notice that the said company are willing to treat and contract for the purchase of the said easement or right hereinbefore described, and as to the compensation to be made to you and each of you for the damage that may be sustained by you and each of you by reason of the execution of the works of the said undertaking. And I hereby further give you notice that you and each of you are required within twenty-one days after the service of this notice to deliver, or cause to be delivered, at the office of [C. D.], solicitor to the said company, particulars of your several estates and interests in the lands and hereditaments and of the claims made by you and each of you in respect thereof. And I hereby further give you notice that if for twenty-one days after the service of this notice you fail to state the particulars of your claim in respect of such lands and hereditaments, or to treat with the company in respect of the said easement or right, the amount of compensation payable to you and each of you will be settled in the manner prescribed by the said Acts. And I further give you notice that in case you claim com- pensation as having a greater interest than that of a tenant at will, you are required within the same period of twenty-one days to produce to the said [C. D.] at his office aforesaid any lease or grant under which you or either of you have or claim to have any 41—2 044 Appendix A. estate ov interest in the said lands and hereditaments, or the best evidence thereof in your power. Dated this the day of 190 . (Signed) A. B., Secretary to the Company. Schedule. Parish or place and county in which the lands are situate. No. on plan and in the Book of Reference deposited with the Cleik of the Peace for the County of Warwickshire. Description of lands and hereditaments. \Stratford-on-Avon, Warwiclisliire.] [25] \Orcliard'\ [The flan attached must shoio the lands over which the easement is required. A second plan must be annexed, shoivlng how and where the pijjes will be laid,] N.B. — In order to assist yoit in coniplj-ing with the provisions of the Act, a form of claim, to be filled in and signed b^- you, accompanies this notice. Form No. 4. Notice to Treat under ISIichael Angelo Taylor's Act (57 Geo. III. c. xxix.). To .Y. Y. and all other persons interested in the house, building, land, tenements, and hereditaments hereinafter mentioned and described. I, the undersigned, do hereby for and on behalf of the [Ma^'or and Commonalty and Citizens of the City of London], who are the persons having the control of the pavements of the [City of London], and by direction of the said [Mayor and Commonalty and Citizens], give you and each and every of you notice that for the improvement of the streets and public places within the said [City] and for the public advantage they, the said [Mayor and Commonalty and Citizens], in pursuance of the powers enabling them in that behalf, do intend fortbwith to alter, widen, and extend the street called street, in the said [City], and for such purpose require to purchase and take all your estate and interest in All that piece of land and here- ditaments being and situate in street, in the said [City of Loudon] , together with all rights, ways, and appurtenances thereto belonging, and of which said piece of land and heredita- ments you or some or one of you are possessed, or in which you or some or one of you are otherwdse interested, and which said piece of land and hereditaments so required as aforesaid Precedents. CAl is for the better description thereof delineated on the j^lau annexed hereto or delivered herewith and therein distinguished by a [pink] colour, and I do further give you notice on behalf of the said [Mayor and Commonalty and Citizens] , and by their direction, that they, the said [Mayor and Commonalty and Citizens], have appointed and employed me on their behalf to treat, contract, and agree with you and each and every one of you and with all other or others the several owner or owners, occupier, or occupiers of the said piece of land and hereditaments for the purchase thereof with the appurtenances and all your and their estate and interest by them the said [Mayor and Commonalty and Citizens] for the purposes aforesaid, and I do require you and each and every one of you to treat, contract, and agree with me on behalf of the said [Mayor and Commonalty and Citizens] for the sale to them of the said piece of land and hereditaments hereinbefore described, with the appurtenances and all your estate and interest therein, and I do hereb_y on the part and behalf of the said [Mayor and Commonalty and Citizens] demand from you particulars of your estate and interest in the said piece of land and hereditaments and of the claim or claims made by you in respect thereof pursuant and according to the form of the statute being Chapter 29 of the statutes made and passed in the 57th year of His Majesty King George III., intituled "An Act for the better paving, improving, and regulating the streets of the metropolis and receiving and preventing nuisances and obstructions therein," and desire that such particulars and claim be forwarded to me at the under- mentioned address within twenty-one days from this date. Dated this the day of 190 . (Signed) C. I)., Solicitor to the [City of London]. N.B. — It is requested that the claim be made out on the form herewith. 646 Appendix A. ^ ^-1 o o O Names anil aiMn'sses of solicitors, surveyors, and otlior iiorsons having custody of documents. If i| "3 3 1 :'i III ■j: 2 5 ^ r; X l5 o b - "^ ^11 a " 2.9 es O, 5 S rrcccdents. 647 Form No. 6. Agreement between P>-omoters and Landowner fur the Purchase of Lands. Memorandum of Agreement made the day of , 190 , between A'. V., of Sec. (hereinafter called "the vendor"), of the one part, and the Company (hereinafter called " the promoters ") of the second part : — 1. The vendor agrees to sell, and the promoters agree to purchase, at the price of £ , the land and premises more particularly described in the schedule hereto. 2. The vendor agrees to accept the said sum of £ as full compensation for all claims in connection with the purchase and taking of such lauds and premises, and for all injury and damage sustained by him by reason of the severing of the said lands and premises from other lauds of the vendor, or otherwise injuriously affecting such other lands by the execution of any of the works authorised by the [sjjecirti] Act or the Acts incorporated therewith. 3. The vendor shall, if and when required, send an abstract of his title to the said lauds and premises to the solicitor of the promoters, and shall produce such deeds and documents of title for inspection as the solicitor of the promoters shall require. 4. The promoters shall, on the day of , 190 , pay to the vendor the said sum of £ , at the office of C. D., their solicitor, at which time the purchase shall be completed. 5. Possession of the said lands and premises shall be given to the promoters on payment of the purchase-money as aforesaid, or the promoters may take possession of the said lauds and premises at any time hereafter on depositing the said sum of £ in the Bank in the joint names of the vendor and some person nominated by them or on their behalf, in which case the promoters shall pay to the vendor interest on the said sum of £ , at the rate of £4 per centum per annum between the date of taking possession and the payment of the purchase-price to the vendor. 6. If the completion of the purchase is delayed from any cause other than the wilful default of the vendor, interest at the rate of £4: per centum per annum on the said sum of £ shall be paid by the promoters to the vendor until the date of payment. 7. All costs and legal charges of the vendor of and incident, to this agreement and the conveyance of the said lands and premises shall be paid by the promoters, who shall also pay £ for the fee of the vendor's survevor. (Signed) A'. Y. [tlte Voidorl . A.B. [on behalf of the Companf] . [Schedule.] 648 Appendix A. Form No. 7. Xomixation of I'lco Surveyors under Sect. 9 of the Lcuids Clauses Consolidation Act, 1845. Whereas the Company, in pursuance of the [^special] Act and the Acts incorporated therewith, have agreed to purchase from X. Y. the lands and hereditaments described in the schedule hereto and coloured red on the plan annexed to the said schedule, at a price that shall be determined by the valuation of two practical surveyors : Now, therefore, the said company nominate C. D., and the said X. Y. nominates E. F., as practical surveyors to determine the amount of purchase-money and compensation to be paid for the said lands and hereditaments which the said A'. Y. is, under the said Act and the Acts incorporated therewith, entitled to sell and convey, and the compensation for the permanent damage or injury to any other lands of the said X. Y. held therewith. Dated this the day of , 190 . (Signed) A'. Y. A. B., Secretary to the said Company. [Schedule and Plan.] Form No. 8. Notice of Application to Justices loider Sect. 9 of the Lands Clauses Consolidation Act, 1845, to Appoint a Surveijor. To X. Y. Whereas the two surveyors nominated by us in writing on the day of , 190 , have failed to agree in a valuation of the amount of the purchase-money or compensation to be paid for the lands and hereditaments referred to in the said nomination, and of the amount of compensation to be paid for any permanent damage or injury to any other lands held therewith: Now, therefore, the Company, in accordance with the powers of sect. 9 of the Lands Clauses Consolidation Act, 1845, ^isc you notice that they intend, on the day of , at o'clock in the forenoon, to apply at to two of His Majesty's justices to nominate a surveyor to determine the matters referred to in the valuation of the said two surveyors under our said nomination. Dated this the . day of , 190 . (Signed) A. B., Secretary to the Company. rircc(l'nt><. 649 Form Xo. 9. Appoint me tit of lliinl Sarreiior hij Tiro Justices under Sect. oj the Lands Clauses Consolidation Act, 1845. Whereas application has been made to us, the undersigned A'. L. and M. X., being two of His Majesty's justices assembled and acting together at , by the Company under sect. 9 of the Lands Clauses Consolidation Act, 1845, to nominate a surveyor : And whereas \ve have been informed that the surveyors nominated by the said company and A\ I', have failed to agree in a valuation of tbe amount of purchase-money or compensation to be paid to X. Y. for the lauds and hereditaments belonging to the said A'. Y. and described in the said nomination and the schedule and plan annexed thereto, and of the amount of compensation to be paid for any permanent damage or injury to any other lands held therewith; and that the said company have given due notice to the said A. Y. of this application : Now, therefore, we do nominate G. II. to bo the third surveyor to make the said valuation. Given under our hands this the day of , 190 , at (Signed) K. L. M. X. Form Xo. 10. Certificate of Two Justices that Capital has been Suhscrihed. In pursuance of the \_speeiar\ Act and of the Acts incorporated therewith, we, the undersigned, being two of His Majesty's justices assembled and acting together [or in the case of a metropolitaa police magistrate, I, the undersigned, being a metropolitan police magistrate] , do hereby certify, on the application of the Company, that the sum of £ , being the whole of the capital prescribed by the said [special] Act has been subscribed under contract binding the parties thereto, their heirs, executors, and administrators, for the payment of the several sums by them respectively subscribed. Form Xo. 11. Counter -Xoticc hy an Owner under Sect. 92. To the Company. Whereas upon the day of notice was served upon me by the Company that the company required to purchase 650 Appendix A. and take all my right and interest in the messuages and heredita- ments described in the schedule to the said notice, and whereas the said lands and hereditaments are a part only of a house, or building or manufactory known as \_iascrt descrijytioii] : Now, therefore, take notice that I, the undersigned, am willing and able to sell and convey the whole of the said house, building, or manufactory, more particularly described in the schedule hereto and delineated and coloured red on the plan hereunto annexed, and that I require you to purchase and take the whole of the said house, building, or manufactory. Dated this the day of , 190 . (Signed) X. Y. [Schedule and Plan.] FoKM No. 12. Withdrawal oj Notice to Treat hi/ Promoters after Receiving a Counter-Notice. To X. Y. Whereas on the day of a notice was seiTed upon you by the Company stating that they required to purchase and take for the purposes of their undertaking certain messuages and hereditaments therein described : And whereas on the day of a counter-notice was served by you upon the Company requiring them to purchase and take the whole of a certain house, building, or manufactory, of which the said messuages and hereditaments are a part only, and stating that you were willing and able to sell and convey your interest in the whole : Now, therefore, the said company hereby give you notice that they revoke and withdraw the said notice served upon you on the day of , 190 . Dated this the day of , 190 . (Signed) A. B., Secretary to the Company. Form No. 13. Assessment of Compensation hy Two Justices. Whereas the Company did, on the day of , in pursuance of the provisions of the [sjyecial] Act and the Acts incorporated therewith, serve upon A'. 1". a notice requiring him to give up possession of certahi lands and hereditaments [insert dcsrrijitioii] now occupied by the said A. 3'. as a L^.g^yy tenant : And whereas no agreement has been come to between Precedents. 661 tlie said company and the said X, Y. as to the amount of compensation to be paid by the said company to the said X. Y. for the value of the unexpired term or interest of the said X. Y. in the said lands and hereditaments, and for any loss or injury he may sustain, including any damage suffered by him in his tenancy by severing the lauds held by him, or otherwise injuriously affecting the same : Now, therefore, we, the undersigned C. D, and E. F., being two of His Majesty's justices of the peace for the county of , assembled and acting together, having heard the evidence adduced by the said X. Y. and the said company, do determine the sura of £ to be the amount of the said com- pensation payable by the said company to the said X. Y. Given under our hands this day of (Signed) C. D., E. F., Justices of the Peace for the County of [N.B. — Any one of the metropolitan police magistrates and every stipendiary magistrate for any county, borough, or place, has power to do alone what may be done by two justices of the peace,] Form Xo. 14. Xotice of Desire to have Compensation Assessed hy an Arbitrator under Sect. 23 of the Lands Clauses Consolidation Act, 1845. To the Company. Whereas I, the undersigned X. 1 ., of , have received from you a notice dated the day of , 190 , demanding from me the particulars of my estate and interest in the lands and here- ditaments described in the schedule thereto, and of the claims made by me in respect thereof : Now I do herewith send you the said particulars and give you notice that unless you are willing to agree to pay to me the said sum oi £ ,1 desire to have the amount of purchase-money and compensation to be paid by you for my interest in the said lands and hereditaments and the amount of compensation for damage to be sustained by me by reason of the severing of the lands taken from my other lands, or otherwise injuriously affecting such other lands by the exercise of the powers of the [sjiccicd] Act and the Acts incorporated there- with, settled by arbitration in the manner prescribed by the Lands Clauses Consolidation Act, 1845. Dated this the day of , 190 . (Signed) X. Y. 652 Appendix A. Form No. 15. Ik'DicDuJ for Ai'hitnitio)! under Sect. 68, ivhcre Lands have been Iiijuriotish/ Affected. To the Compauy. Whereas I, A'. Y., of , am the owner in fee simple of [r;r, have a leasehold interest in] the lands and hereditaments descrihed in the schedule hereto : And whereas the said lauds and hereditaments have heen injuriously affected hy the works carried out hy you under the powers conferred upon you by the [speciaV] Act and the Acts incorporated therewith, in the manner following, that is to say \]iere describe the injury coniplaincd of], and I claim £ as compensation in respect of the said injury : Now, therefore, I give you notice that, unless you are willing to pay the said sum of £ , and enter into a written agreement for that purpose within twenty-one days after the receipt of this notice, I desire to have the amount of the said compensation settled by arbitration in the manner provided by the Lands Clauses Consoli- dation Act, 1845. Dated this the day of , 190 . [Schedule.] (Signed) X. Y Form No. 16. Appo'uitmoit of an Arbitrator bi/ the CIai>na>it. To C. D., of Whereas the Company have given me, the undersigned, notice that they require for the purposes of their undertaking certain lands and hereditaments described in the said notice and in the schedule hereto, and whereas I did, by notice in writing dated the day of , 11)0 , signify to the said company my desire to have the amount of compensation payable to me by the said company in respect of the said lands and hereditaments settled by arbitration : Now, therefore, I appoint 3'ou, C. L)., of , to be arl)itrator on my behalf, to determine the amount of purchase- money and compensation to be paid to me by the said company for my estate and interest in the said lands and hereditaments, and also the amount of damage (if any) to be sustained by me by reason of the severing of the lands taken from my other lands, or other- wise injuriously affecting such otber lands by the exercise of the powers of the [^^pee'tal] Act and the Acts incorporated therewith. J)ated this the day of , 190 . (Signed) A'. Y. [Schedule.] Precedents. 653 Form No. 17. Notice hi) Chiimant of Appointment of Arbitrator, and Ilequest to Promoters to Appoi)it an Arbitrator. To the Company. I, the uudersigued X. Y., hereby give you notice that I have ou the day of 190 , appointed C. D., of , to he arbitrator on my behalf to determine the amount of purchase- money and compensation to be paid by you for my estate and interest in the hinds and hereditaments described in the schedule hereto, and also the amount of damage (if any) to be sustained by me by reason of the severing of the lands taken from my other lauds, or otherwise injuriously aft'ecting such other lands by the exercise of the powers of the [special] Act and the other Acts incorporated therewith. And I hereb}^ require you, within fourteen days from the date hereof, to appoint an arbitrator to act on your behalf in the said matters. Dated this the day of , 190 . (Signed) X. Y. [Schedule.] FoitM No. 18. Appointment of an Arbitrator by the Pronioters. Whereas the Company did on the day of 190 , receive a notice in writing signed by A'. Y. informing them that the said X. Y. had appointed C. D., of , to be arbitrator on his behalf, to determine the amount of purchase-money and compensation to be paid by the said company for the interest of the said X. Y. in certain lands and hereditaments described in the schedule thereto, and also the amount of damage (if any) to be sustained by the said X. Y. by reason of the severing of the lands taken from the other lauds of the said X. Y., or otherwise injuriously affecting such other lands, by the exercise of the powers of the said Acts, and requiring the said company within fourteen days from the date thereof to appoint an arbitrator to act on their behalf iu the said matters : Now, therefore, the said company do hereby appoint P. P., of , to be the arbitrator on behalf of the said company to whom the said matters shall be referred. Dated this the day of , 190 . (Signed) A. B., Secretary to the Company. 654 AiJiJendix A. Form No. 19. Notice by Promoters of Appointment of an Arbitrator and Request to Landowner to Appoint an Arbitrator. To X. Y., of I, on behalf of the Company, hereb}' give you notice that the said company have by writing on the day of , 190 , appointed E. F., of , to be arbitrator on their behalf to determine the amount of purchase-money and compensation to be paid by the said company for the interest which you claim to be entitled to in the lands and hereditaments described in the schedule hereto, and also the amount of damage (if any) to be sustained by you by reason of the severing of the lands taken from your other lands, or otherwise injuriously affecting such other lands, by the exercise of the powers contained in the {^sjniciat} Act and the Acts incorporated therewith. And I hereby require you, within fourteen days from the date hereof, to appoint an arbitrator to act on your behalf in the said matters. Dated this the day of , 190 . (Signed) A. B., Secretary of the Company. [Schedule.] Form No. 20. App(ii)itment of a Single Arbitrator by Agreement. Whereas under the provisions of the \_special'\ Act and of the Acts incorporated therewith the Company and X. Y.,oi , have concurred in the appointment of a single arbitrator to determine the amount of purchase-money and compensation to be paid by the said company to the said A'. Y. for his interest in certain lands and hereditaments described in the schedule hereto : Now, therefore, the said company and the said X. Y. do concur in appointing C. D., of , to be a single arbitrator to determine the amount of purchase-money and compensation to be paid by the said company for the interest of the said X. Y. in the said lands and hereditaments, and also the amount of damage (if any) to be sustained by the said X. Y. by reason of the severing of the lands taken from the other lands of the said X. Y., or otherwise injuriously artecting such other lands, by the exercise of the powers conferred Pm-cdcuts. 655 on the said company by the [special] Act and the Acts incorporated therewith. Dated this the day of , 190 . (Signed) A. B., Secretary to the Company. A'. Y. [Schedule.] Form No. 21. Appointment of Arbitrator to Act for both Parties under Sect. 25 of the Lands Clauses Consolidation Act, 1845. Whereas under the provisions of the [special] Act and of the Acts incorporated therewith the Company on the day of , 190 , gave me, the undersigned, notice that they required for the purposes of their undertaking certain lands and heredita- ments described in the said notice and in the schedule hereto : And whereas before the said company had issued their warrant to the sheriff to summon a jury in respect of the matter of the said lands and hereditaments I signified to them, by notice in writing, my desire to have the amount of compensation payable to me for my interest in the said lands and hereditaments settled by arbitration : And whereas by writing under my hand on the day of , 190 , I appointed C. D., of , to be arbitrator on ray behalf to determine the amount of purchase-money and com- pensation to be paid by the said company for my interest in the said lands and hereditaments or the interest therein which I am enabled to sell and convey under the said Acts, and also the amount of damage (if any) to be sustained by me by reason of the severing of the land taken from my other lands, or otherwise injuriously aftecting such other lands, by the exercise of the powers of the said Acts : And whereas on the day of , 190 , I gave notice in writing to the said company of the said appointments and requested them within fourteen days thereof to appoint an arbitrator to act on their behalf in the said matters : And whereas fourteen days have elapsed since the time of the said notice and request, and the said company have failed to appoint an arbitrator to act on their behalf : Now, therefore, I appoint the said C. D. to act both on my behalf and on behalf of the said company in the matters aforesaid. Dated this the day of , 190 . (Signed) X. Y, 656 Appendix A. Form No. 22. Apjiointiiient of an Arhitrator under Sect. 64 of the Lands Clauses Act, 1845, ht/ a Claiuiant wlio is Dissatisfied u-itli the Valuation of a Surrej/or Appointed under Sect. 58. Whereas the Company, in consequence of their being unable to find me after diligent inquiry, caused the amount of purchase-money or compensation in respect of my interest in certain lands described in the schedule hereto to be determined by the valuation of a surveyor under sect. 58 of the Lands Clauses Consolidation Act, 1845, and have deposited the amount of such valuation in the Bank of England : And whereas I am dissatisfied with such valuation, and have given due notice in writing to the said company requiring the question of such compensation to be submitted to arbitration : Now, therefore, I hereby appoint C. I)., of , as arbitrator on my behalf to determine whether the said amount so deposited as aforesaid by the said company is a sufficient sum or whether any and what further sum ought to be paid or deposited by them. Dated this the day of , 190 . (Signed) X Y. [Schedule.] Form No. 23. Appointment of Umpire hy Arbitrators under Sect. 27 of the Lands Clauses Consolidation Act, 1845. AVhereas the undersigned C. D. was on the day of appointed arbitrator on behalf of X. Y., and the undersigned E. F. was on the day of appointed arbitrator on behalf of the Company to determine the amount of purchase-money and compensation to be paid by the said company for the interest to which the said A'. Y. is entitled or which he is enabled to sell under the [special] Act and the Acts incorporated therewith, in the lands and hereditaments more particularly described in a schedule to a notice to treat dated the day of , 190 , and also the amount of damage (if any) to be sustained by the said A'. Y. by reason of tbe severing of the lauds taken from the other lands of the said X. Y., or otherwise injuriously affecting such other lands, by the exercise of the powers of the said Acts : Now, therefore, we, before entering upon the matters referred to us, nominate and appoint (J. H. to be umpire to decide on any matters on which we Precedents, 657 shall differ or which shall be referred to him under the said [special'\ Act and the Acts incorporated therewith. As witness our hands this day of ,190 . (Signed) C. D. E. F. Form Xo. 24. Appointment of an Umpire hi/ the Board of Trade under Sect. 28 of t]ie Lands Clauses Consolidation Act, 1845. "Whereas application has been made to the Board of Trade by the Company under the \_special'\ Act and the Acts incorpo- rated therewith to appoint an umpire : And whereas it has been made to appear to the Board that the arbitrators appointed by the said company and X. Y. to determine the amount of purchase- money and compensation to be paid by the said company for the estate and interest to which the said X. Y. is entitled or which he is enabled to sell under the said Acts, in the lands and heredita- ments described in the schedule hereto, and also the amount of damage (if any) to be sustained by the said A'. Y. by reason of the severing of the lands taken from the other lands of the said X. Y., or otherwise injuriously affecting such lands, by the exercise of the powers of the said Acts, have refused [or, have for seven days after request from the said company neglected] to appoint an umpire : Now, therefore, the said Board do hereby appoint C. D. to be the umpire to decide on any matters on which the said arbitrators shall differ, or which shall be referred to him under the provisions of the said Acts. Dated this the day of , 190 . (Signed) Secretary to the Board of Trade. [Schedule.] Form No, 25. Enlargement of Time for Mahiwj Award. We, C. D. the arbitrator appointed by and on behalf of A'. Y. and E.F. the arbitrator appointed by and on behalf of the Company, do hereby extend the time for making an award respecting the matters referred to us until the day of , 190 . As witness our hands this day of , 190 . (Signed) C. D. E. F. L.c. 42 658 Appendix A. Form No. 26. Notice hy Arbitrators of Failure to Agree. To G. H. We, the undersigned C. D. and E. F., hereby give you notice that we are unable to agree in respect of the matters referred to us by X. ¥., of , and the Company, and that the determina- tion of the said matters has thereby devolved upon you as umpire, duly appointed by us on the day of , 190 . The day of , 190 . (Signed) C. D. E.F. Form No. 27. Award h>j Tiro Arbitrators. To all to whom these presents shall come we, C. D., of , and E. F., oi , send greeting : Whereas on the day of the Company gave notice to A". Y. that in pursuance of the powers of the [special] Act and the Acts incorporated therewith they required to purchase and take certain lands and hereditaments [insert description con- tained in notice to treat] : And whereas the said A'. Y. claimed to be interested in the said lands and hereditaments under a lease for years dated the day of , of which a term of about seven years was then unexpired : And whereas the said company and the said A". Y. failed to agree as to the amount of purchase-money and compensation to be paid by the said company for the interest claimed by the said A'. Y. in the said lands and hereditaments, and also the amount of damage (if any) to be sustained by him by reason of the severing of the lands taken from his other lands, or otherwise injuriously affecting such other lauds, by the exercise of the powers of the said Acts : And whereas the said company on the day of appointed by writing under the hand of their secretary the said E. F. as arbitrator to act on their behalf in the determination of the amount of the said purchase-money and compensation : And whereas the said A'. 1'. on the day of appointed by writing under his hand the said C. D. as arbitrator to act on his behalf in the determination of the amount of the said purchase-money and compensation : And whereas we, the said arbitrators, before entering upon the con- sideration of the matters referred to us duly appointed an umpire, and made and subscribed the declaration required by the said Acts : Now know ye, that we, the said arbitrators, having viewed the said lands and hereditaments, and having considered the Precedents. 659 evidence adduced by the said respective parties, do award and determine that the sum of £ is the amount of purchase- money and compensation to be paid by the said company for the interest chiimed by the said A'. 1'. in the said lands and heredita- ments, and that the said sum includes an amount for all damages sustained or to be sustained by the said X. Y. by reason of the severing of the lands taken from his other lands, or otherwise injuriously affecting such other lands, by the exercise of the powers of the said Acts. As witness our hands this day of [Schedule.] , 190 . (Signed) C. D. E.F. FoEM No. '28. Au-ard hy an Uiiipirc. To all to whom these presents shall come I, G. II., of send greeting : Whereas on the day of the Company gave notice to X. Y., that in pursuance of the powers of the [sjyecial] Act and the Acts incorporated therewith, they required to purchase and take for the purposes of their undertaking all the lands and hereditaments described in a schedule to the said notice : And whereas under the said Acts the said A'. Y. claims to be enabled to sell the said lands and hereditaments and the fee simple thereof in possession : And whereas the said company and the said X. Y. have failed to agree as to the amount of purchase-money and com- pensation to be paid to the said A'. Y. by the said company for the interest in the said lands and hereditaments which he claims to be enabled to sell under the said Acts, and also the amount of damage (if any) to be sustained by him by reason of the severing of the lands taken from his other lands, or otherwise injuriously affecting such other lands, by the exercise of the powers of the said Acts : And whereas the said company on the day of appointed by writing under the hand of their secretary, E. i^., of , as arbitrator to act on their behalf to whom the question of such pui'chase-money and compensation as aforesaid should be referred : And whereas the said A'. Y. on the day of appointed by writing under his hand C. D., of , as arbitrator to act on bis behalf to whom the question of such purchase-money and com- pensation should be referred : And whereas the said C. D. and E. F., before entering upon the consideration of the matters referred to them, did, on the day of , by writing under their 42—2 660 Appendix A. hands, duly nominate and appoint me, the before-mentioned G. H., to be the umpire in the matter of the said arbitration to decide on any matters referred to them as to which they should differ : And Avhereas the said arbitrators disagreed and differed respecting the matters referred to them, and by reason of such differences have failed to make an award : Now knoAv ye, that I, the said G. H., having taken upon myself the burthen of the reference, and having, before entering upon or taking into consideration any of the matters referred to me, duly made the declaration required by the said Acts, and having viewed the said lands and hereditaments, and having considered the evidence adduced by the respective parties, do award and determine that the sum of £ is the amount of purchase- money and compensation to be paid by the said company to the said A'. Y. in respect of the estate and interest in the said lands and hereditaments which the said X. Y. claims to be enabled to sell under the said Acts, and that the said sum includes an amount for all damages sustained by the said X. Y. by reason of the severing of the lands taken from his other lands, or otherwise injuriously affecting such other lands, by the exercise of the powers of the said Acts. As witness my hand this day of , 190 • (Signed) G. H. FoKM No. 29. An-ard in the Form of a Spec'ud Case. {The recitals should folloic those in Form No. 28, and the award slioiihl he continued as follows :] Now know ye, that I, G. 11. , having taken upon myself the burthen of the reference, and having, before entering upon or taking into consideration any of the matters referred to me, duly made the declaration required by the said Acts, and having viewed the said lands and hereditaments, and having considered the evidence adduced by the respective parties, hereby state my award of and concerning the matters so referred to me in the form of a special case for llie opinion of the Division of the High Court of Justice. [Here set out the facts in numbered ■parcKjraphs.'] If the Court shall bo of opinion that the said {claimant^^ is entitled to compensation in respect of the matters stated in paragraphs , I award and determine that the sum of i' is the amount to be paid by the said company in respect of the matters referred to Pirccdrnts. 661 me ; but if the Court shall be of opinion that the said [clainhott] is not entitled to compensation in respect of the said matters, then 1 award and determine that the sum of 4* is the amount to be paid b}- the said company in respect of the matters referred to me. As witness my hand this day of (Signed) (J. H. Form No. 30. Xotice DeslriiKj a Jui'y iclicre Lands have been Injarioushj Affected. [Follow Form Xo. 15 doini to " said injury.'"] Now, there- fore, I give you notice, that unless you are willing to pay me the amount of the said compensation so claimed and shall enter into a written agreement for that purpose, then I do heieby request and require you, within twenty-one days after the receipt by you of this notice, to issue your warrant to the sheriff of or other the proper officer to summon a jury to assess the amount of the said compensation in the manner provided by the Lauds Clauses Consolidation Act, 1845, and the Acts amending the same. And Further Take Notice, that the documents showing my title are in the possession of Messrs. , my solicitors, at whose office, , you may inspect the same. As witness my hand this the day of (Signed) X. Y. FoKM No. 31. Xotice of Intention to Sn)nnt0)i a Janj and of Offer of Co)Hpe)isation. To X. Y. Whereas by a notice in writing addressed to you and dated the day of , 190 , I, on behalf of the Company, gave you notice that it was the intention of the said company to take and use for the purposes of the [speciaVl ^^^ the property specified in the schedule and annexed thereto : And whereas on the day of , 190 , you caused to be delivered to the said company a document bearing date the day of 190 , in which you claimed to be interested as lessee of and 662 Appendix A. you claimed to be paid for your estate and interest in the aforesaid land and premises the sum of £ as purchase-money and compensation : And whereas the said company and you have not agreed and cannot agree as to the amount of the purchase-money or compensation to be paid to you for your interest in the said hereditaments and for any loss or damage which may be sustained by you by reason of the taking and using of the said hereditaments : Now I, on behalf of the Company, hereby, in pursuance of the said Act, give you notice that it is the intention of the said company, after the expiration of ten days from the service of this notice, and in pursuance of the provisions in the said Act contained, to issue their warrant to the sheriff or other proper officer of the county of to cause a [special'] jury to be summoned to inquire into and assess the amount of such purchase-money and compensa- tion as aforesaid, which you are or may be entitled to receive under the provisions of the said Act. And Further Take Notice, that the said company are willing to give and hereby offer you the sum of £ for your estate and interest in the lands and hereditaments sought to be purchased from you and for all damage to be sustained by you by reason of the severing of the said lands and hereditaments from your other lands, or otherwise injuriously affecting such other lands, by reason of the executi(Mi of the works authorised by and powers contained in the said Act. Dated this the day of , 190 . (Signed) A. B., Secretary to the said Company. Form No. 82. J]^ai-ra)it to Shcrilf to su))U)W)i Jnri/ to iJctcrmiiie the ]'alnc of Lands to he Purchased or Taken. To the Sheriff of the County of Whereas in pursuance of the provisions contained in the [speciaQ Act and the Acts incorporated therewith the Company on the day of duly served notice on A'. Y., of , that they required to purchase and take for the purposes of their undertaking certain lands and hereditaments mentioned in the schedule hereto, and more particularly described in the schedule to the said notice : And whereas the said X. Y. claims to be interested in the said lands and hereditaments under a lease thereof for a term of years from the day of , 190 : And whereas the said A. B. and the said company have been unable to agree as to the amount Precedents, 663 of purchase-mouey and compeusatiou to be paid by the said com- pany to the said X. Y. for his estate and interest in the said lands and hereditaments, and as to the amount of compensation for the injury to be done by reason of the severing of the said lauds and hereditaments from other lands of the said A'. 1'., or by otherwise injuriously atfecting such other lands, by the exercise of the powers of the said Acts : And whereas the said company on the day of , 190 , being more than ten days before the date hereof, did serve on the said X. Y. a notice of their intention to issue their warrant for summoning a jury to determine the amount of such purchase-money and compensation as aforesaid : Now, therefore, the said company do by this warrant, issued under their common seal to you, the sheriff of the said county, require you to summon a [s2)eciaQ jury, in accordance with the provisions of the said Acts, for the purpose of determining by their verdict the amount of purchase-mouey and compensation to be paid to the said X. Y. by the said company for the jjurchase of his estate and interest in the said lauds and hereditaments, and also the amount of compensation for the damage (if any) sustained or to be sustained by the said X. Y. by reason of the severing of the said lauds and hereditaments from the other lauds of the said X. Y., or otherwise injuriously affectins: such other lands, by the exercise of the powers contained in the said Acts. Given under the common seal of the Company this the day of , 190 . " (Seal.) [Schedule.] Form Xo. 3B. Xutice of Desire for a Special Junj. To the Company. Whereas on the day of last I, the undersigned A'. 1'., received from you a notice of your intention to issue your warrant to the sheriff" requiring him to summon a jury for the purpose of determining by their verdict the question of the com- pensation to be paid by you to me : And whereas you have not issued such warrant to the sheriff: Take Notice, that I, the said X. Y., desire such compensation to be tried before a special jury. Dated this the day of , 190 . (Signed) A. Y. 664 Appendix A. Form No. 34. 2\(iticc from Sherif of Time and Place for No)iiii)ating and StriJdmj SjJccial Jury. « In the Matter of the claim of X. Y. against the Company. I hereby give you notice that I have appointed o'clock in the forenoon of the day of , 190 , at my office at , in the county of , as the time and place of nominating and striking a special jury in the above matter, and that I summon the parties or their agents to appear before me at the time and place aforesaid. Dated this the day of , 190 . (Signature) To the Company. To X. I'. Form No. 35. Notice to Attend for Reducing a Specicd Jury. In the Matter of the claim of X. Y. against the Company. I hereby give you notice that I have appointed o'clock in the forenoon of the day of at my office at , in the county of , as the time and place for the parties or their agents to appear before me to reduce the number of the special jury in the above matter. Dated this the day of , 190 . (Signature) To the Company. To X. Y. Form No. 36. Notice of Time and Place of Inquiry to he given hy Promoters. To X. 1'., of Whereas on the day of 190 , the Company gave you notice of their intention to cause a jury to be summoned to determine the amount of the purchase-money and compensation payable to you for your interest and estate in the lands and heredi- taments mentioned therein, and also the amount of compensation (if any) payable to you for the damage sustained by you by reason of the severance of the said lands and hereditaments from other lands held therewith, or otherwise injuriously affecting such other lands : And whereas the said company on the d;iy of , 190 , .I'rcrcckiils. 666 issued their warrant to the sberifl' requiring liini to summon a jurv to determine the amount of the purchase-money and compensation aforesaid : Now, therefore, the said company hereby give you notice that the inquiry before the jury to determine the same will be held on the day of , 190 , at o'clock in the forenoon at (Signed) A. B., Secretary of the Company. Form Xo. 37. VcnJirt and Jmhjment. [Name of CoiDiii/] to wit. An inquisition, verdict, and judgment had and taken pursuant to the [special] Act and the Acts incorporated therewith, and pursuant to a warrant hereunto annexed, dated the day of , 190 , and issued by the Company under their common seal at , not being more than eight miles distant from the lands in question hereinafter mentioned, on the day of , 190 , before me , sherift' of the said county, on the oaths of [[/ire names of jurors], all indifierent persons duly qualified to act as common' or jurymen in the High Court of Justice, each of whom, special before proceeding to inquire of and assess the compensation or damage in respect of which their verdict was given, severally made oath before me that he would truly inquire of and assess such compensation or damage : And the said X. Y. in the said warrant named, and the said company having appeared before mo and the jurors aforesaid, at the time and place aforesaid, by their respective counsel, solicitors, or agents : And the several persons who had been summoned as witnesses on behalf of the said A'. Y. and the said company having been examined upon oath, and the said jurors having viewed and inspected the place or matter in controversy : The said jurors on their oaths aforesaid say that they do assess and give a verdict for the sum of £ for the purchase- money of the estate and interest of the said A'. 1'. in the lauds and hereditaments described in the said warrant hereunto annexed : And the jurors aforesaid on their oaths aforesaid say that they do assess and give a verdict for the sum of £ by way of compensa- tion to the said A^ Y. for the damage sustained by him by reason of the severing of the lands taken from the other lands of the said X, Y., or otherwise injuriously affecting such other lands, by the 666 Ajypendix A, exercise of the powers of the [special] Act, and the Acts incor- porated tlierewitb. And I, the said sheriff, do order the said sums of £ and £ to be paid by the said company. In witness whereof I, the said sheritf, have hereunto set my hand and seaL And the said jurors have hereunto set their hands and seals, the day and year first above written. (Signed) L. J\I., Sheriff of the county of '- Jurors. I [N.B. — The warrant must be annexed to the above. If it is agreed that the jury shall give their verdict in one sum to include purchase-money and compensation, the above form must be amended accordingly.] Form No. 38. Deed Poll in Default of Conveyance Pursuant to Sect. 75 of the Lands Clauses Act, 1845. To all to whom these presents shall come. AVe, the Company, send greeting : Whereas under the powers contained in the [s2)ecial] Act and the Acts incorporated therewith the said company gave notice to A'. ¥., being a party interested in the lands hereinafter mentioned, that they required to purchase and take all the lands, particulars of which are contained in the schedule hereto, for the purposes authorised by the said Act : And whereas, pursuant to the provisions of the said Acts, the sum of £ has been settled as the amount of purchase-money and compensation due to X. Y. from the said company for his interest in the lands hereinafter mentioned : And whereas the said company have deposited the said sum of £ in the Bank of England for and on behalf of the Supreme Court of Judicature to be placed to the credit of A'. I'.'s account: And whereas the said X. Y. has failed to adduce a good title to such lands to the satisfaction of the said company : And whereas the said company have taken the lands from the said X. Y.: Now these presents Avitness that we, the said company, hereby declare that the said A'. Y. has failed to adduce a good title to such lands to our satisfaction. And we, the said company, execute this deed poll under our common seal, to the intent that all the estate and interest in the said lands of or capable of being sold and conveyed by the said X. Y. shall vest absolutely in us, the said company, and that as against the said A'. Y. and all parties on I'irnuhnitx. 667 behalf of whom he is by the said Acts euahled to sell and convey, we, the said company, shall be entitled to immediate possession of the said lands. In witness, Sec. [The Schedule.] [X.B, — For a deed poll under sect. 77 and other sections, this furm must be altered where necessary.] Form No. 39. Xomiiiation of a Surveijor hy Tico Justices under Sect. 59 oj the Lands Clauses Act, 1845. AVhereas the Company have applied under the [special] Act and the Acts incorporated therewith to us, the undersiofned A. B. and C. D., being two of His Majesty's justices of the peace for , to nominate a surveyor, and have proved to our satisfaction that they are prevented, by reason of his absence from the kingdom, from treating with X. Y. as to the amount of purchase-money and compensation to be paid to him in respect of the lands and hereditaments described in the schedule hereto, and the amount of compensation to be paid for the damage (if any) sustained by him by reason of the severing of the lands taken from his other lands, or otherwise injuriously affecting such other lands by the exercise of the powers in the said Acts contained : Now, therefore, sve do hereby nominate by writing under our hands, E. F. as sur- veyor to determine the amount of the said purchase-money and compensation. Given under our hands this day of , 190 . [Schedule.] (Signed) A. B. C. l>. Form No. 40. Appniiitmod of a Surrei/or hi; Tao Justices under Sect. 85 oJ the Lauds Clauses Act, 1845. Whereas it has been made to appear to us, the undersigned A. B. and C. ]>., being two of His Majesty's justices of the peace assembled and acting together at , that the Company are empowered to purchase, under the [sp)ecial] Act and the Acts incorporated there\\-ith, certain lands and hereditaments, more particularly described in the schedule hereto, and in a notice to treat, dated : And whereas the said company are 668 Appoidix A. desirous of entering upon and using the said lands and heredita- ments, notwithstanding that no agreement has been come to or award made or verdict given for the purchase-money or compensa- tion to be paid by them in respect of such lauds and hereditaments : And whereas the said company, in pursuance of the 85tli section of the Lands Clauses Consolidation Act, 1845, have applied to us to appoint a surveyor: Now, therefore, we, in pursuance of the powers vested in us, do hereby appoint E. F. to be the surveyor to determine the value of such lands and hereditaments, or the interest therein, which A'. Y., mentioned in the said notice to treat, has or is enabled to sell and convey, and also the amount of damage (if any) to be sustained by the said X. Y., by reason of the severing of the lands taken from the other lands of the said X. Y., or otherwise injuriously affecting such other lands, by the exercise of the powers contained in the [sj^t'ciaZ] Act, or any Act incorporated therewith. (Signed) A. B. C. D. [Schedule.] Form Xo. 41. Notice of Intention to Apply to Board of Trade to Appoint a Savccyor ititder Sect. 36 of the Fuiihcay Conqxinies Act, 1867. To X. Y. Whereas by a notice in writing under the hand of the secretary of the Kailway Compan}-, dated the day of , and served upon you on the day of , the said company gave you notice that they required to purchase and take, under the powers of the [special] Act and the Acts incorporated therewith, certain lands and hereditaments [iiiseii descri2)tion] : And whereas no agreement has been come to or award made, or verdict given for the purchase-money or compensation to be paid by the said company in respect of your interest in the said lands and hereditaments : And whereas the said company are desirous of entering upon and using the said lands and hereditaments for the purposes of their undertaking, under the powers con- ferred upon them by the Lands Clauses Consolidation Act, 1845: Now we, the said company, hereby give you notice that we intend, on the day of , being not less than seven days after the service of this notice, to apply, under sect. BG of the llailway Companies Act, 1867, to the ])oard of Trade, for the appointment of a surveyor to determine the value of the interest claimed by you, or which you are under the said Acts enabled to sell, in the said I'mrdnits. 660 lands ami hereditaments, and the amount of compensation for all damage and injury to be sustained by you by reason of the exercise of the powers conferred by the 85th section of the Lands Chiuses Consolidation Act, 1845, as far as such damage and injury are capable of estimation. Dated this the day of , 190 . (Signed) Secretary of the Company. FoRJE No. 42. Appointmant of Surveyor hi/ Board of Trade under Sect. 36 of tlie liaiUvay Companies Act, 1867. Whereas it has been made to appear to the Board of Trade that the Company are empowered to purchase certain lands and hereditaments, more particularly described in a notice to treat dated the day of (a copy of which is annexed hereto), and that the said company are desirous of entering upon and using the said lands and hereditaments, notwithstanding that no agreement has been come to or award made or verdict given for the purchase- money or compensation to be paid by them in respect of the said lands : And Mdiereas the said company, in pursuance of the 36th section of the Railway Companies Act, 1867, have applied to the Board of Trade to appoint a surveyor to make the valuation prescribed by the 85th section of the Lands Clauses Consolidation Act, 1845, in respect of the said lands : Now, therefore, the Board of Trade, in pursuance of the powers vested in them, do hereby nominate and appoint E. F., of , to be the surveyor to determine the value of the said lands hereinbefore described or the interest therein which the said X. Y. is entitled to sell and convey, including the amount of compensation for all damage and injury (if any) to be sustained by reason of the exercise of the powers conferred by the said 85tli section as far as such damage and injury are capable of estimation, and do require and direct the said E. F. to proceed in respect of such valuation in the manner prescribed in the 59th, 60th, 61st, 62nd and G3rd sections of the Lands Clauses Consolidation Act, 1845. Signed by order of the Board o^ Trade, this day of , 190 . 670 Appendix A. Form No. 43. Bond entered info witJt Sni^eties nndei- Seet. 85 of tJw Lands Clauses Act, 1845. Know all men b}- these presents that we, the Company, andJ. B., of , and C. ])., of , being sureties duly approved in accordance with the provisions of sect. 85 of the Lands Clauses Consolidation Act, 1845, are jointly and severally held and firmly bound to A'. 1"., of , in the sum of .4' to be paid to the said A". ¥., or his attorney, executors, administrators, or assigns, for which payment to be well and truly made, we, the said company, bind ourselves and our successors, and we, the said A. B, and C. D., bind ourselves and each of us, and the heirs, executors, and administrators of ourselves and each of us, respectively by these presents. Sealed with the common seal of us, the said company, and with the respective seals of us, the said A. B. and C. I>. Dated this day of , 190 . Whereas the said company, in pursuance of the powers of the \_sj)ecial^ Act and the Acts incorporated therewith, on the day of gave notice to the said X. Y. that they required to purchase and take certain lands and hereditaments, more particularly described in the schedule hereto : And whereas no agreement has been come to or award made or verdict given for the purchase-money or com- pensation to be paid to the said X. Y. in respect of his estate and interest in the said lands and hereditaments : And whereas the said company are desirous of entering upon and using the said lauds and hereditaments before the purchase-monej' or compensation payable by them has been agreed upon or settled, but the said X. Y. refuses to consent thereto : And whereas a survej'or duly appointed by two justices under section 85 of the Lands Clauses Con- solidation Act, 1845, has determined the amount of purchase- money or compensation to be paid to the said X. Y. in respect of the estate and interest which he claims to be enabled to sell under the said Acts at the sum of £ : And whereas, in compliance with the said Acts and sect. 85 of the Lands Clauses Consolidation Act, 1845, the said company have deposited in the Bank of England by way of security the said sum of £ in the name and with the privity of the Paymaster-General, to be placed to his account there for and on behalf of the Supreme Court of Judi- cature in England to the credit of the said X. Y. : Now, therefore, the condition of the above-written bond is such that if the said company shall pay to the said X. Y. or deposit in the Bank of England for the benefit of the parties interested in the said lands and hereditaments, under the provisions contained in the Lands Precedents. G71 Clauses Cousolidation Act, 1845, all such purchase-money or coni- peusatiou as may iu manner in the said Act provided be determined, to be payable by the said company in respect of the said lands and hereditaments, together with interest thereon at the rate of £o per cent, per annum from the time of entering on the said lands and hereditaments until such purcbase-money or compensation shall be paid to the said X. Y. or deposited in the Bank of England for the benefit of the parties interested in the said lauds and hereditaments under the provisions contained in the Lands Clauses Consolidation Act, 1845, then the above-written bond shall be void, otherwise the same to remain in full force. Sealed with the common seal ^ of the Company, and j by the said .4.^. and CD., | in the presence of . J [Schedule.] FoEM No. 44. Declaration of ImpartiaUiii hi/ a Siirreijor Appointed under Sect. 59 or Sect. 85 of the Lands Clauses Consolidation Act, 1845. I, of , surveyor, do solemnly and sincerely declare that I will faithfully, impartially, and honestly, according to the best of my skill and ability, execute the duty of making the valuation hereby referred to me. Made and subscribed in the presence of , Justice of the Peace. FoFai No. 45. Vcduation hij a Surveyor Appointed under the Lands Clauses Consolidation Art, 1845, I, the undersigned, , being the surve3'or named in the annexed nomination to determine the value of the lauds iu the said nomination mentioned, and having made my valuation concern- ing the same, and having, previously to entering upon the duty of making such valuation, subscribed the declaration of impartiality annexed hereto, do hereby determine the value of the said lauds at the sum of £, Dated this the day of , 190 . Witness . (Signed) Annex : (1) Nomination of Surveyor ; (2) Declaration of Impartiality ; (3) Declaration of Correctness. 672 Appendix A. Form No. 46. Declaration of Correctness of Valuation hi/ a Surveyor Appointed under Sect. 59 or Sect. 85 of the Lands Clauses Consolidation Act, 1845. I, the above-named , do hereby declare the foregoing valuation to be correct, and that it includes compensation for all damage and injury to be sustained by reason of the exercise of the powers conferred by sect. 85 of the Lands Clauses Consolidation Act, 1845, as far as such damnge and injury are capable of estimation. Witness . (Signed) Form No. 47. Notice to Promoters to Apportion Bent under Sect. 119 of the Lands Clauses Consolidation Act, 1845. To the Company. Whereas certain lands [insert parcels as in lease] by an indenture dated the day of , 190 , were demised to me, the under- signed A'. Y., for a term of twenty-one years from the day of , 190 , whereof nine years are still unexpired, at the rent of £ per annum, which lands are more particularly delineated on the plan annexed hereto, and coloured blue and red : And whereas the Company under the [speciaV] Act and the Acts incorporated therewith did on the day of serve upon me a notice to treat for so much only of the said lands as are coloured red on the plan annexed hereto : Now, therefore, I hereby give notice to the said company that I require the rent payable in respect of the said lands, to be apportioned in accordance with the provisions of the said Acts. Dated this the day of , 190 . (Signed) A'. Y. Form No. 48. Summons to Apportion Ilcnt. To the Company and C. D. (lessor). Whereas information has this day been laid before me, one of His Majesty's justices of the peace for the county of , by X. Y. that the Company have, in pursuance of the [sj^eciaQ Act and the Acts incorporated therewith, served upon him a notice to treat in respect of part only of certain lands [insert j^a reels as in lease] , comprised in an indenture of lease dated the day of , 190 , Vrccedents. 673 and made between C. D. of the one part and the said A. B. of the other part, for the term of years from the day of , 190 , whereof about nine years are still unexpired, at the rent of £, per annum : And whereas no agreement has been made as to the apportionment of rent between the lands comprised in the said notice and the residue of the lands included in the said lease: These are, therefore, to command you and each of you in His Majesty's name, to be and appear on the day of , at o'clock in the forenoon, at , before such two of His Majesty's justices of the peace as may then be sitting for the purpose of determining such apportionment in accordance with the provisions of the said Acts, and to give you and each of you notice that if you do not appear such apportionment will be made in your absence. Given under my hand and seal this day of , 190 . (Signed) (l. s.) Justice of the Peace for the County of FoKM No. 49. Apportionment of Rent by Tico Justices. At the petty sessions of , for the county of , holden at , on the day of , 190 . Whereas certain lands [i)isert parcels from lease'] are comprised in a lease dated the day of , 190 , made between X. Y., the lessee, of the one part, and C. D., the lessor, of the other part, whereof nine years are still unexpired, at the rent of M per annum, which lands are more particularly delineated on the plan annexed hereto and thereon coloured blue and red : And whereas the Com- pany, under their [special] Act and the Acts incorporated therewith, have served a notice to treat upon the said A', Y. in respect of so much only of the said lands as are coloured red on the annexed plan : And whereas it is necessary that an apportionment should be made of the said rent of £ between the part of the lauds required to be purchased by the said company and the residue of such lands, and no agreement has been made : Xow, therefore, we, the undersigned, being two of His Majesty's justices of the peace for the county of , assembled and acting together at , do hereby apportion the said yearly rent of £ as follows, namely, the sum of £ shall be the yearly rent payable for that part of the said lands which are required by the said company, and the sum of £ shall be the yearly rent for the residue of the said lands comprised in the said indenture of lease. Given under our hands and seals this day of , 190 . (Signed) E. F. (l. s.), J. H. (L. s.), Justices of the Peace for the County of L.c. 43 674 . Appendix A. Foinr No. 50. Notice to a Person Jiavinfi no Greater Interest in Lands tlian as Tenant for a Year or from Year to Year. To X. Y. Take Notice, that tlie Company, in pursuance of their powers under the [specied] Act and the Acts incorporated there- with, require you to give up possession of the hinds occupied by you, and more particularly described in the schedule hereto and coloured red on the annexed plan, on the day of next, before the expiration of your term or interest therein. And Further Take Notice, that you are entitled to compensation for the value of your unexpired term or interest in such lands, and for any just allowance which ought to be made to you by an incoming tenant, and for any loss or injury you may sustain, and for the damage (if any) done to you in your tenancy by severing the lands held by you, or otherwise injuriously affecting the same, and to have the amount of such compensation determined by two justices if no agreement is come to between you and the said company in reference to the same. Dated the day of , 190 . (Signed) A. B., Secretary to the Company. Schedule of Lands and Plan. Form No. 51. Summons to Appear before Tiro Justices for Assessment of Compensation Pai/ahle to a Yearlj/ Tenant. Whereas information has this day been laid before me, one of His Majesty's justices of the peace for the county of , by X. Y., that you, the Company, did on the day of serve a notice upon him requiring him to give up posses- sion of certain lands and hereditaments [insert description from schedule in notice] and occupied by him as a yearly tenant, and that no agreement has been made as to the amount of compensa- tion payable to him for the value of his unexpired term or interest in the said lands and hereditaments, and for any just allowance which ought to be made to him by an incoming tenant, and for any loss or injury he may sustain : You are therefore summoned, in His Majesty's name, to be and appear on the day of , at o'clock in the forenoon, at , before such two of His Majesty's justices of the peace as may then be there, in order that Vrecedents. 675 the amount of the said compensation ma}' then and there be determined. Given under my hand and seal this day of (Signed) L. M., Justice of the Peace for the County of [For Assessment of Compensation by Justices, see Form 13.] Form No. 52. Notice to Produce Lease under Sect. 122 of the Lands Clauses Consolidation Act, 1845. To X. Y. Whereas you claim compensation in respect of an unexpired term under a lease in the lands comprised in a notice to treat served upon you by the Company on the day of , 190 : Take Notice, that the Company require you to produce the said lease or the best evidence thereof in your power; and Further Take Notice, that if, after receiving this demand made in writing by the Company, you do not produce the said lease or the best evidence thereof in your power within twenty-one days, you will be considered as a tenant holding only from year to year, and be entitled to compensation accordingly, in accordance with the pro- visions of sect. 122 of the Lands Clauses Consolidation Act, 1845. Dated this the day of (Signed) Solicitor to the Company. Form No. 53. Notice of Trial and. to Produce. In pursuance of the provisions of the {^special^ Act and the Acts incorporated therewith, notice is hereby given to you that a special jury, to be summoned, impanelled and returned according to the provisions of the said Act, will come before the sheriff of the county of , at a Court to be holden at on the day of , 190 , at half-past ten of the clock in the forenoon, for the purpose of inquiring, assessing, and giving a verdict for the purchase-money and compensation to be paid for and in respect of certain premises known as , in the parish of , in the county of , and numbered in the plan and book of reference deposited with the clerk of the peace for the county of , and which premises are more particularly described 43—2 676 Appendix A. in the notice to treat given to you by the Company and bearing date the day of , 190 , at which time and place aforesaid, you are required to attend and produce all and every of your grants, leases, agreements for leases, valuations, receipts for rent, accounts of rents received, receipts for rates and taxes, bankers' pass-books, book of daily takings, day-books, ledgers, vouchers, and all other evidence papers and writings what- soever relating to the said lands and hereditaments, the subject of your claim, and to the trade carried on in such premises, together with all letters and copies of letters (except such as have been written without prejudice) relating to the matters aforesaid, and particularly [Jicre fill in anytldnfj specialli/ required^. Dated this the day of , 190 . (Signed) Solicitor to the said Company. Form No. 54. Notice to Admit. Take Notice, that X. Y. proposes to adduce in evidence at the inquiry which has been appointed to be held on the day of at the documents hereunder specified, and that the same ma}' be inspected by the Company, their solicitor or agent, at , on , between the hours of , and the Company are hereby required, within hours from the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed as they purport respectively to have been ; that such as are specified as copies are true copies, and that such documents as are stated to have been served, sent, or delivered were so served, sent, or delivered respectively, saving all just exceptions to the admissibility of all such documents in evidence. Dated this the day of , 190 . (Signed) Solicitor to X. Y. To Solicitor for the Company. Originals. Description of Document. Dates. Precedents. Copies. Deseiitition of document. Dates. Oiijjinal or fluplicate served, sent, or delivered, when, liow, and by whom. 677 Form No. 55. O^ffer of the Right of Pre-emption of Supcrfliious Land to Otrner from whom they were Taken, under Sect. 128 of the Lands Clauses Consolidation Act, 1845. To A'. Y. Whereas the Company acquired the lauds and heredita- ments mentioned in the schedule hereto under the [special^ Act and the Acts incorporated therewith, and do not require the same for the purposes thereof : Now, therefore, the said company hereby offer to sell the same to you as the person entitled to the lands from w^hich the same were originally severed, and hereby give you notice that unless within six weeks from the receipt hereof you signify to the said company your desire to purchase the same, the right of pre-emption hereby offered to you will cease and determine. Dated this the day of , 190 . (Signed) A. B., Secretary to the Company. 678 APPENDIX B. Sect. 1. Submission to be irrevoc- able, and to have effect as an order of Court. Applies to arbitration commenced after Act. THE ARBITRATION ACT, 1889 (52 & 53 Vict. c. 49). A)i Act for Amending and Consolidat'nu/ the Enactments relating to Arbitration. ' ' [26th August, 1889.'] References hy Consent out of Court. 1. A submission, unless a contrary intention is expressed therein, shall be irrevocable, except by leave of the Court or a judge, and shall have the same effect in all respects as if it had been made an order of Court. Application and Construction of the Act. — This Act in great measure follows the provisions of the Common Law Procedure Act, 1854 ; where, therefore, the language used in both Acts is the same, the decisions determining the construction of the earlier Act wull be adhered to in construing the present Act (ft). The Act, however, is an amending Act, and where larger words are used, they are used in- tentionally, and must have a meaning given to them accordingly (b). The Act is expressly made applicable to every arbitration under any former Act, except in so far as it is inconsistent A\'ith such Act, and the inconsistency must be such that where the provisions of this Act are imposed on the earlier Act, the two are so at variance that the machinery will not work (c). This Act is, by sect. 25, made to apply to an arbitration commenced after the Act {i.e., after 1st January, 1890), under an agreement or order made before the commencement of the Act, and the expression " this Act" in that section means the whole Act (d). Submission. — A definition of a submission will be found in sect. 27 (e). Where an order of reference is drawn up by consent, and it is shown to the Court that there has been some omission on the part of its ofticer, or that by some accident or mistake the order is not in (a) I„ re Keiqhlni, jMaxfed and Compaiiij [1893], 1 Q. B. 40S ; (32 L. J. Q. B. 105 ; 70 L. T. 155 ; 41 W. E. 437. Sec also IIud re Wil/iains and Siepne,/ [1891], 2 Q. B. 257; 60 L. J. Q. B. 635 ; V>o L. T. 208 ; 39 AV. E. 533. (e) Post, p. 697. Thr Afhitnifuw Art, 1889. 679 accordance \Yith the intention of the parties, or if any fraud is shown, the Court may make such amendment as will give effect to that which the parties have agreed to (/). Where the parties under the Lands Clauses Consolidation Act, 1845, have agreed to appoint arbitrators, they have agreed to that which is a suljmission to arbitration within the Common Law Pro- cedure Act, 1854, s. 5 (corresponding to sect. 7 of this Act), and consequently the arbitrators have power to state a special case for the opinion of the High Court (g). An arbitration under sects. 16 and 308 of the Pulihc Health Act, 1875, is, by sect. 180, deemed to be a submission. But if the local authority, after appointment of arbitrators, decides not to proceed with the work, the arbitration is at an end, and no award can be made for costs {Jt). "Irrevocable." — A suljmission was always irrevocable, for there was always an action for breach of an agreement to refer. Formerly, however, the parties, although they could not revoke the agreement to submit to arljitration, were able to revoke the authority of the arbitrator whom they had named. The Act of the 3 & 4 Will. IV. c. 42 made the submission irrevocable in cases where it had been made a rule of Court and the arbitrators had been appointed. The words " a submission shall be irrevocable," used in this Act, are the same as those used in the Act of Will. IV., and mean that the power of the arbitrator cannot be revoked when once he has been appointed. It does not mean that the agreement to refer is irrevocable, because that always was, in the true sense of the word, irrevocable (/). The application for leave to revoke should be made, in the Chancery Division, by motion or originating summons under Order 54, rule 4f. ; in the King's Bench Division by originating summons. The appeal from Chambers is within the Judicature Act, 1894, s. 1(4), and must be made to the Court of Appeal (A-). Leave will not be given ex parte. Prior to the Act. — Whether a refusal by the arbitrator to state the grounds of his decision on the face of the award, where authorised to do so by the submission, is a good ground of revocation qu(sre(l). A very strong case must be made out to obtain leave ; it is not a good ground that the umpire was chosen by lot where the party Sect. 1. Lands Clauses Consolidation Act, 18i5. Public Health Act. 1875. Application for leave to revoke : Appeal. Grounds for revocation. (/) V,iurdsl>ire llailiviui Cfinpmnj (1878), 4 Q. li. D. 412 ; 48 L. J. Q. 13. 248; 40 L. T. 801 ; 27 W. E. 540. {h) Daris v. ]\'itne>/ Urhan DIdriH C'(-«/(c// (1899), 15 T. L. E. 275; (53 J. P. 279. (0 In re Smith and Xelsox (1890), 25 Q. B. 1). 545 ; 59 L. J. Q. P. 533; 63 L. T. 475; 39 W. E. 117. {k) lleFortluiid Vrlan District CoimriJ [1896], 2 Q. B. 98; 05 L. J. Q. B. 527 ; 74 L. T. 703. (/) C/nrl-r V. Storhrn (1835), 3 Scott, 90 ; 5 D. P. C. 32 ; 2 Bing. N. C. 651. 680 Appendix B. Sect. 1. acquiesced in that mode of choice {in). The fact that the arbitrator accepted disputed evidence, but \vould not pledge himself to raise any particular objection on the award, is not sufficient {n). The Court or judge ought to give leave where they see some error will be committed h\ the arbitrator unless they interfere. Where the arbitrator refused legal evidence, the Court ordered revocation unless the arbitrator received the evidence on the judge's ruling (o). The Court has jurisdiction to give leave if it has reasonable ground to suppose that the arbitrator is going wTong on a point of law, even in a matter within his jurisdiction ; and will order a revocation unless the parties consent to the arbitrator raising the questions by making his award in the form of a special case [p). But the exercise of this right is in the discretion of the Court, and is not to be claimed as of right (g). Tinder the Act. — Where an arbitrator had wrongly admitted evidence which should have been rejected, the submission was revoked (r). The mere fact of one party bringing an action against the arbitrator charging him with fraud is not enough to obtain revocation (s) ; but it is sufficient where the arbitrator had been an interested party {e.g., litigation between the arbitrator and one of the parties) (i*). An arbi- trator is not in the position of a judge as regards bias, but it must be show^n, if not that the arbitrator would be biased, at least that there is a probability that he would be, in order to obtain leave (»). Where a substantial part of the claim is based on the misconduct of the arbitrator, leave will be given, and vice versa {x). Where a party appointed his own manager as sole arbitrator, a revocatioii was ordered unless another arbitrator was appointed (//). The Court will not Order a party to consent to a commission on pain of revocation {.z). "And shall have the same eflfect." — A submission to arbitration is neither a " cause " nor a "matter "' within Order 37, rule 5 (1), and the Court has no jurisdiction to order a commission to issue for the (//() James v. Attwuod (1839), 7 Scott, 841 ; b P.ing. N. C. G'28. {u) Scott V. Van Saudaii (1841), 1 Q. B. 102; 4 P. & D. T2j. (o) Hart V. J)hJ:i- (1863), 32 L. J. Q. B. 5 o ; 9 Jur. N. S. 119 ; 11 W. E. To. {]>) East and West India Dodcs v. Kirh (1887), 12 Ajip. Cas. 738 ; bl L. J. Q. B. 295 ; 58 L. T. 158. (7) James V. James (1889), 23 Q. B. D. 12; 58 L. J. Q. B. 424 ; (il L. T. 310 ; 37 W. E. 600. {)•) Be Lord (hrard [1895], 1 Q. 15. 459; (54 L. J. Q. B. 2(J0 ; 72 L. T. 142; 43 W. E. 374; 14 E. 201. («) BtUher V. Roedean ScJxx.I Site (1901), 85 L. T. 468. (/) Be Bariiaj Brothers (1892), 61 L. J. (i. B. 704. {») Erkerslei/ V. Mersei/ Dorks [1894], 2 Q. B. 6(57 ; 71 L. T. 308 ; 9 E. 827 ; nriani/ [1900], 2 C'h. 835 ; 70 L. J. Ch. 59 ; 82 L. T. 793 ; 49 W. E. 132 ; 64 J. P.' 695. (r) Re Donhin (1893), 9 T. L. E. 192. (y) Be i'raiilenliinui (1894), 10 T. L. E. 393. Pee al-so Fmerson v. Sicretani of State for ]Var (1893), 9 T. L. E. 470. (2) /// re Dreijfiis (1893), 9 T. L. E. 35S. The Arhitmtion Act, 1889. ()Sl examination of witnesses abroad (a). The section gives no new Sect. 1. powers, and the only effect of it is, that a submission is to be irre- vocable in the sense in which that phrase was used before the Act ; and it is to have the same effect in all respects as if before the Act it had been made a rule of Court, i.e., the award can be forced as a judgment of the Court (A). 2. A submission, unless a contrary intention is expressed therein, Sect. 2. shall be deemed to include the provisions set forth iu the First pj.oy~j^,^ Schedule to this Act, so far as they are applicable to the reference inij:>lied in under the submission. submissions. A Submission. — This section, l)y virtue of sect. 25, refers to all sub- missions, whether made before or after the commencement of the Act (c), and the Act applies so as to introduce certain provisions into a submission, unless the contrary is provided, but does not override the submission (d). If parties wash to get rid of these provisions they must insert terms in the submissions that expressly exclude them (e). A submission to arbitration amounts to a w^aiver of any objection which might have been taken to the claim by the defendants (/). The First Schedule. — The provisions of the first schedule are as First t 11 Schedule, lollows : — The First Schedule. Provisions to he Implied in Sidtiiiifi-^ioiis. (a) If no other mode of reference is provided, the reference shall be to a single arbitrator. See sects. 5 and 7 ({/). (b) If the reference is to two arbitrators, the two arbitrators may appoint an umpire at any time within the period during which they have power to make an award. See sect. 6 (/;), and sect. 27 of the Lands Clauses Consolidation Act, 1845 (/). May Appoint. — The appointment of the third person must be the result of tlie judgment of the two. It must be a matter of choice and not of chance, unless the parties consent to, or acquiesce in, some ((>) In re Shaw [1892], 1 Q. B.-91 : 61 L. J. Q. B. 143. (//) la re Smdh and Xe/son (1890). 2o Q. B. D. 545 ; 59 L. J. Q. B. 533 ; 03 L. T. 475; 39 W. E. 117. (r) B>- Wnilains and St>p,>r>/ [1891], 2 Q. B. 257; 60 L. J. Q. B. 635 ; 65 L. T. 208 ; 39 W. E. 533. (d) lie Wilnou and Eastern Counties, itc. ('uinjiam/ [1892], 1 Q. B. 81; 61 L. J. Q. B. 237 ; 65 L. T. 853. (e) lie Stephens. Smith and (onqHini/ (1892), 36 Sol. J. 464. ( /■) Loverin'j v. <'itii of London ami Simtliwark Snijn-ai/ Canipani/ (1^91), 7 T. L. E. 600. («/) Post, pp. 687, 689. (h) Fast, p. 689. (/) Ante, p. 88. 682 Appendix B. First Schedule. Arbitrators appointed under Lauds Clauses Act, 1845. other mode (A). Where each arbitrator proposed an umph'e, both of whom were agreed to be equally fit and the appointment between them was made by lot, the appointment was held to be valid (/) ; but where the arbitrators each nominated a man unknown to the other and drew lots, sccus {in). "An Umpire." — An umpire is technically a person appointed to settle any diti'erences that may arise between two arbitrators [n) ; an umpire differs from a third arl^itrator in that he only begins to act when the two arbitrators have ceased, and can alone give a good award, whereas a third arbitrator acts with his co-arbitrators, and the award must be the unanimous award of all three (o). A committee may be the umpire {p). Where arbitrators have l^een appointed under sect. 25 of the Lands Clauses Act, 1845, and one arbitrator refuses or neglects to concur in the appointment of an umpire, the other arbitrator has power under sect. 30 of the Act to proceed ex parte to make an award without proceeding with the appointment of the umpire {q). (c) The arbitrators shall make their award in writing within three months after entering ou the reference, or after having been called on to act by notice in writing from any party to the submis- sion, or on or before any later day to which the arbitrators, by any writing signed by them, may from time to time enlarge the time Icr making the award. See C. L. P. Act, 1854, s. 15. The words "the arbitrators" include cases of reference to a single arbitrator (Interpretation Act, 1889, s. 1 (b) ). "Entering on a reference." — An arbitrator enters on a reference when he begins the real business of the reference by holding a meeting of the parties or proceeding under a peremptory appointment ex parte ; the mere giving notice that he will enter on the i-eference is not an entering on the reference (r). "Within three months." — Notice to arbitrators to appoint an umpire is a notice by which they are "called on to act " within the meaning of this clause and the " three months " run from the service (/.•) Ik Cassell (1829), 9 B. & C. G24 ; 4 M. & E. ooo ; EurojKa,,, .Ct. Com- j.iniy V. Crosskn/ (ISOO), 8 C. B. N. S. 397 ; 29 L. J. ( '. V. loo ; G Jur. N. S. 896 ; 8 W. E. 230. (0 Jle Hopper (1867), L. E. 2 Q. B. 367 ; 3() I.. J. (i. B. 97 ; lo L. T. J66 ; lo W. E. 44 J; 8 B. & S. 100. (m) Fescod v. rcsraiJ (1887), oS L. T. 76. (h) Jie J'Ji/re oud Corporation of Leicester [1892], 1 Q. B. 140 ; 61 L. J. (i. B. 438; 65 L.T. 733; 40 W. E. 203; o6 J. V. 228. (o) United KiiKjilom Assorintion v. //(nis/nn [1896], 1 (i. B. ,367; GoJj.J. Q. B. 484. {ji) Jle Kei,ihhij [1893], 1 Q. B. 40.3 : 62 L. J. (i. B. 10.3; 6S L. T. 61 ; 11 W. E. 437 ; 4 E. 136 ; 7 Asp. M. ('. 26S. (7) Shepherd V. Corpomtion of ^'oiwirh (1885), 30 C. D. 5.33; 54 L. J. Cli. 1050; 53 L. T. 251 ; 33 W. E.'841. (r) Baker v. Stephens (1867), L. E. 2 U. B. 523; 36 L. J. Q. B. 2.36; 8 B. &S. 438; 15 W. E. 902. The ArUtration Ad, 1889. G83 of that notice upon them {s). Whether taking up an award known First to have been made after the Umited time amounts to a waiver of the condition qucere {t). " Enlarge the time."— See sects. 9 and 10 (2) («), and Order 64, rule 14a {v), and the Lands Clauses Consohdation Act, 1845, ss. 23 and 31. The Court has power to enlarge the time subsequent to the a,ward («•). (d) If the arbitrators have allowed their time or extended time to expire without making an award, or have delivered to any party to the submission, or to the umpire a notice iu writing, stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators. See C. L. P. Act, 1854, s. 15. See also the Lands Clauses Con- sohdation Act, 1845, s. 31 (.r), and sect. 9 of this Act. (e) The umpire shall make his award within one mouth after the original or extended time appointed for making the award of the arbitrators has expired, or on or before any later day to which the umpire by any writing signed by him may from time to time enlarge the time for making his award. See the Lands Clauses Consolidation Act, 1845, s. 23 (?/), and sect. 9 of this Act. (f) The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire, on oath or affirmation, in relation to the matters iu dispute, and shall, subject as afore- said, produce before the arbitrators or umpire, all books, deeds, papers, accounts, writings, and documents within their possession or power respectively which may be required or called for, and do all other things which during the proceedings on the reference the arbitrators or umpire may require. See the Lands Clauses Consolidation Act, 1845, s. 32 [z), and sects. 7, 8, 18 of this Act, and Order 36, rules 48— 55c. (g) The witnesses on the reference shall, if the arbitrators or umpire thinks lit, be examined on oath or attirmatiou. See note to (f). (h) The award to l)e made by the arbitrators or umpire shall be (s) Barimi-GouJtl v. Sliariiinytou, &c. Syndiatte [18991, 2 Ch. 80; 68 L. J. Ch. 4'i9 ; 80 L. T. 739 ; 47 AV. E. 564. (t) DarnJcij v. London, C/icdJiani, and Lorer Juiilujai/ Compaiiy (1867), L. E. 2 11. L. 43 ; ■ 36 L. J. Cli. 4U4 ; 16 L. T. 217 ; 15 AV. E. 817. (ii) Past, p. 691. ( '•) Ai)peiiclix D, iiogt. {"■) Mail V. Harcnnrt (1884), 13 Q. B. D. 688 ; Lord v. Lee (1868), L. E. 3 Q. 15. 404 ; 9 B. & S. 269 ; 37 L. J. Q. B. 121 ; 16 AV. E. 856 ; Know/es and Sons V. Bolton Corporation [1900], 2 H B. 253; 69 L. J. n. B. 4S1 ; ,s2 L. T. 229 ; 48 W. E. 433. (.«;) Autt; p. 91. (//) Ante, p. 77. (2) Ante, p. 92. 684 Appendix B. Schedule ^"^^ ^^^^ binding on the parties and the persons claiming under ■ them resfjectivelj'. See the Lands Clauses Consolidation Act, 1845, s. 23 (a), and sects. 10 (1), 11, and 12 of this Act. ** Binding." — Where the parties to a contract referred the question of its construction to an arbitrator, his award was held to l)e con- clusive evidence as to the construction in a subsequent action brought for other breaches of the same contract (b). (i) The costs of the reference and award shall be in the discretion of the arbitrators or umpire, who may direct to and by Avhom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client. "Costs." — This provision applies to all submissions except where expressly excluded (c). The effect of this clause is to make arbitra- tors and umpires judges in their own cause, and to allow them to settle finally the amount of costs to be paid to them, but this power, unless exercised in and by the award itself, cannot be exercised at all, and the charges of the arbitrator, if not fixed in the award itself, are liable to taxation. It is an open question whether an excessive and extravagant charge by an arbitrator made l)y him in the award as part of the award might not amount to such misconduct as would justify the Court in setting that award aside {d). Power over the costs of the reference includes power to give the costs of the award {e) ; and the costs of the reference include the costs wdiich are incidental to the reference and incurred in bringing it about (/). Costs of a special case under sect. 19 fall under this provision, unless when the order for a special case is made the Court imposes terms as to costs ((/). Where the award does not deal with costs and the master taxes the costs, the Court has jurisdiction to review the taxation of the master (//). Where a party took up an award and paid the costs of the umpire's solicitor for drawing up the award, the bill was held taxable under sect. 38 of the Solicitors Act, 1813 {i). {a) Ante, p. 77. \b) Giieret v. A luloKy {1^93), (52 L. J. Q. R G;J:J. (c) He Williams aiul Stepneii [l^i'l]. '1 Q. B. 2J7 ; 60 L. J. d E. Oljj • G.J L. T. 208 ; ;39 W. R. o3;}. ■ ^ ' (d) Be J'reUI,' [1892], 2 Q. 13. <3()2 ; (J7 L. T. 2(57 ; 41 W. E. 30 ; o7 J. P. 54 : i.V Stephens [1893], 3(5 Sol J. 4G4. {e) Re Walkrr ami Jirown (1882), 9 Q. V>. B. 434; ol L. J. LI B. 4"4 • 30 W. R. 703. (/) Re Aiitothreptir Co,iq,a»i/ (1888), 21 (i. B. 1). 182 ; 57 L. J. (i. B. 488 • 59L. T. (532; 37 W. R. 15. ' (V) Jlr Knifiht [1892], 2 Q. ]5. (513; (52 L. J. Q. B. ,33; G7 L. T. 403; 41 ^^ . E. 35 ; 4 R. 67 ; 57 J. P. 229. (//) Malrem Urhan District Coiniril v. Mx/nni Link (las Com),auii (1900\ 83 L. T. 326. i J \ .^ (0 It" C'ai/f/er-Dristaireaial ('nmpam/ [19011. 2 K. B. 839; 70 L. J. K. B. 941 ; 85 L. T. 208; 50 W. R. 4. The Arhitratiou Act, 1889. 085 See also sect. 20 (A-), and sect. 31 of the Lands Clauses Consolida- First tion Act, 1845 (/), and the Lands Clauses (Taxation of Costs) Act, Schedule. 1895 (m). 3. Where a submissiou provides that the reference shall be to Sect. 3. au official referee, any official referee to whom application is made shall, subject to any order of the Court or a judge as to transfer or ottidal"*^^ ^^ otherwise, hear and determine the matters agreed to be referred. let'eiee. See the Judicature Act, 1881, s. 11, and Order 36, rules 45, 47, 47b, and 55c. 4. If any party to a submission, or any person claiming through Sect. 4. or under him, commences any legal proceedings in any Court against p .TT ^a any other party to the submission, or any person claiming through proceedings or under him, in respect of any matter agreed to be referred, any where there is party to such legal proceedings may at any time after appearance, ^ ^^^^^ra'ssion. and before delivering any pleadings or taking any other steps in the proceedings, apply to that Court to stay the proceedings, and that Court or a judge thereof if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings. Practice. — Application should be made by summons before a master (n), and should he supported by an affidavit showing that at the time of the bringing of the action the defendant was ready and wilhng to concur in all acts necessary for causing the matter to be referred to arbitration (o), but where there is more than one defendant it is not necessary that all parties should concur in the application ( »). The step to be taken must be a step taken by the applicant. A step in the proceedings means something in the nature of an application to the Court, and not mere talk between solicitors or solicitors' clerks, nor the -^liting of letters, but the taking of some step such as taking out a summons or something of that kind, wliich is, in the technical sense, a step in the proceedings ((/). An application for leave to administer interrogatories is a step in the proceedings (?•) ; so also is the attending of the defendant at chambers on the hearing of a summons for directions taken out by the plaintiff on which an order {k) Post, p. 696. (0 Ante, p. 95. (m) Ante, p. 352. (n) Ord. 54, r. 12a. (o) Piercy v. Younr/ (1879), 14 C. D. 200 ; 42 L. T. 710 ; 28 W. E. 845. (/») WiUesfordy. ]Vatsou (1873), L. E. 8 Ch. 473; 42 L. J. Ph. 447 • ''8 L. T. 428 ; 21 W. E. 350. (q) Ives and Barlxcr v. WiUuns [1894], 2 Ch. 484; 63 L. J. Ch.. 5'>1 ■ 70 L. T. 674 ; 42 W. E. 483 ; 7 E. 243 ; Ford's Hotel Compauy v. BartJett [18961 A. C. 1 ; 65 L. J. Q. B. 166 ; 73 L. T. 665 ; 44 W. E. 241. (r) Chappell v. ^'^orth [1891], 2 Q. B. 252; 60 L. J. Q. B. 554; 65 L. T. 23 ; 40 W. E. 16. 686 Appendix B. Sect. 4. is made that the plaintiffs and defendants should respectively make discovery of documents (s) ; an application to the Court for a stay until security for costs be given is a step in the proceedings {t) ; an application made after delivering statement of defence is too late(?;) ; so also is an application made where the party applying has obtained time to plead, and agreed to take short notice of trial (j:). But a mere application by letter from one party to another requiring the delivery of a statement of claim is not such a step(?/); nor is an application by letter under Order 6-4, rule 8, for extension of time to put in a statement of defence {z) ; nor the mere filing of affidavits in defence to a motion for a receiver («). Onus of Under a similar provision of the Eaihvay Passengers' Assurance showing that C^ompany's Act, 18G4, it was held that the burden lay on the plaintiffs proceed. to show that sufficient reason existed why the dispute should not be referred to arbitration {h). Costs. — As to costs, see sect. 20 (c). Refusing a Stay. — x\n application to stay an action will be refused where the arbitrator is an interested and unsuitable person (d). But where parties to a contract agree to submit their quarrel to a person who is not wholly unbiased, but who from his position must come to the reference with a preconceived opinion, it is no part of the duty of the Court to set aside such submission if the arbitrator has done nothing to unfit himself to act, or render himself incapable of acting, not as an arbitrator without previously formed or even strong views, but as an honest judge of this very special and exceptional kind. Moreover, under sect. 19 of this Act a party to the contract can, if he feels aggrieved, obtain the opinion of the Court upon the true construc- tion of the contract (e). Where, however, the arbitrator would be in effect adjudicating upon his own cause a stay will be refused (/). The mere fact that one of the arl)itrators has accepted the hospi- tality of one of the parties prior to making his award is not of itself a sufficient reason to set aside the award, imless it can be shown that (s) Covvty Theatres uud Hotels Limited v. Knowlea [1902], 1 K. B. 480; Tl L. J. KB. 351 ; 86 L. T. 132. {t) Adams v. Cattley (1892), 6(3 L. T. 687; 40 W. E. 570. {a) West London jhiir;/ Societi/ v. Abbott (1881), 29 W. E. 584; 44 L. T. 376. (x) S.riifJi and Comj)aiii/ V. British Marine MtdnaJ Insurance Association (1883), W. N. 176. {y) Ires and liarker V. WlJIans [1894], 2 Ch. 478, supra. (z) Iiri(/idon Marine Palace ami Pier, Limited v. Woodhouse [1893], 2 Ch. 486 ; 62 L. J. Ch. 697 ; 68 L. T. 669; 41 W. E. 488 ; 3 E. 565. {a) Zidinoff V. Ihnnmond [1898], 2 Ch. 92; 67 L. J. Ch. 370; 78 L. T. 456. {b) Ilodi/son V. Hail way Passen). (t) Re Eyre and the Corporation of Leicester [1S92], 1 Q. E. 136 ; 61 L. J. Q. B. 438 ; 65 L. T. 733; 40 W. K. 203 ; 56 J. P. 228. ill) Aide, pp. 88, 90. (x) Be Wilson and Son and Eastern (bounties Naviyation and Transport Company [1892], 1 Q. B. 81 ; 61 L. J. Q. B. 237 ; 65 L. T. 853. (y) Ante, pp. 89, 352, (z) Ante, J). 88. {a) (1S93), 03 L. J. Q. B. 171 ; 10 R. 611. [h) In re Smith and Nelson (1890), 25 Q. B. D. 515; 59 L. J. Q. B. 533 • 63 L. T. 475; 39 W. R. 117. The Arhitration Act, 1889. 689 any party may serve the other parties or the arbitrators, as the case Sect. 5. may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator. If the appointment is not made within seven clear days after the service of the notice, the Court or a judge may, on appHcation by the party who gave the notice, appoint an arbitrator, umpire, or third arbitrator, who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties. "Notice to appoint." — "Appoint" means "concur in appointing," and, therefore, a notice which is not a notice to appoint, but only to concur in appointing, an arl)itrator is good (c). "May . . . appoint." — Where the conditions of this section are satisfied " may " means " must," and the Court is bound to appoint an arbitrator, and has no discretion (d). The Court has no jurisdiction to make an order calling upon a party to appoint. The application should ask the Court to appoint {c), and should l)e h\ summons to a master in Chambers. 6. Where a submission provides that the reference shall be to Sect. 6. two arbitrators, one to be appointed by each party, then, unless — ~ the submission expresses a contrary intention— parties in (a) If either of the appointed arbitrators refuses to act, or is certain cases incapable of acting, or dies, the party who appointed him may t" supply ajjpoint a new arbitrator in his place ; ■ "-. • (b) If, on such a reference, one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been ap^iointed by consent : Provided that the Court or a jndge may set aside any appoint- ment made in pursuance of this section. A reference to three arbitrators does not come within this section (/). 7. The arbitrators or umpire acting under a submission shall, Sect. 7. unless the submission expresses a contrary intention, have power — „ ^ * • • I OWOTR Or (a) to administer oaths to or take the affirmations of the parties arbitrator. and witnesses appearing ; and See first schedule (g) {g) and sects. 8, 18, 22 (/;) ; also the Lands Clauses Consolidation Act, 1845, s. 32(/). (c) Br El/re uxd Corporation of Leicester [1892], 1 U. B. 13(j, sii/ir<(. (d) Ihid". (e) Be Smith aud Nelson and Sons (1890), 25 Q. B. D. o-io ; 59 L. J. Q. B. 533 ; 63 L. T. 475 ; 39 W. E. 117. (/) Il^i'l. {(/) Ante, p. 683. (//) Infra. (0 Aide, p. 92. L.c. 44 090 Appendix B. Sect. 7. "Witnesses appearing." — In an arbitration which has never been before tlie Court, the Court has no power to order the issue of a com- mission to examine witnesses (A:) ; contra where there is an order of the Court for reference (/). (b) to state an award as to the whole or part thereof in the form of a special case for the opinion of the Court ; and Special Case. — It is not a condition precedent to the right to order a case to be stated that the arbitrator has indicated in what way he will decide the point of law raised (»(). An umpire under the Lands Clauses Consolidation Act, 1845, was held to have power to state a case under the corresponding section of the Common Law Procedure Act, 18e54 («). It is the duty of an arbitrator to affirmatively, and not in the alternative, find the facts upon which the question of law depends (o). An arbitrator must find and state the material facts, l)ut not the evidence upon which he finds those facts (_/;). Practice. — An award stated in the form of a special case must be filed at the Court Order Office, Eoom 486. In the Chancery Division it will be assigned to a judge at time of filing; in the King's Bench Division it comes before a Divisional Court. The Court may, if necessary, send the case l^ack to the arbitrator for inquiry upon a particular point, and deliver judgment subject to such inquiry' (i^). Appeal. — When the arbitrator has stated his award in the form of a special case he has exhausted his powers ; and the opinion of the Court in that case is an effective determination of the rights of the parties, and an appeal lies from the decision of the Divisional Court accordingly (r). Compare sect. 19 (s). Costs.— See sect. 20 (/). (c) to correct in an award any clerical mistake or error arising from any accidental slip or omission. (/.) Ilr Sh((\o and Ronahlson [1892], 1 Q. B. 91 ; Gl L. J. Q, B. 141. (J) Ihn/wanlx. Mid ital J^cserce Association [IS9\], 2 Q. B. 23(3 ; Go L. T. 491 ; 139 W. R. 624. (m) Jle Spi/lers and Ilalrr [1S97], 1 Q. B. 312 ; 66 L. J. Q. B. 326; 76 L. T. 35 ; 45 W. E. 245. (//) lUiodcs V. Airedale Drainatje ('n/nmissiaiuj (1889), 22 Q. B. D. 504 ; 5S L. J. Q. B. 191'; GO P t. 297 ; 37 W. P. 477. (ii) Norfli and South Wedern Junction Jiailii-ai/ (^ninpii nij v. Brentford. (1S89), 58 P. J. M. C. 95 ; 13 A. C. 592 ; 60 P. T. 274. (}>) Darln/shire v. l.eiql, [1896], 1 Q. B. 554 ; G5 P. J. d P.. 360 ; 74 P. T. 241 ; 40 W. P. 452. ('/) ^'ani/ (1892), 8 T. P. P. 228. (/■) lie Knii/ld anil Tahernacle Permanent Itiii!din(/ Societi/ [1892], 2 Q. B. 613; 62 P. j. Q. ]5. 33; 67 P. T. 403; 41 W. P. 35; 57 J. P. 229; Be Kirlcleatham Local Hoard [1893], 1 (i. B. 380; 62 L, P (i. P. ISO; 67 P. T. 811 ; 57 J. P. 421. (s) Infra. {() Ii'fra. The Ai-hUmtlon Ad, 1889. 691 Where the arbitrator is functus officio, he cannot, of his o\Yn Sect. 7. nuthority, remedy any mistake, but the Court has power under sect. 10 of this Act to remit the matters referred for his recon- sideration (//). An error as to jurisdiction is not within this 8ub-section (.r). 8. Any party to a submission may sue out a writ of subprena ad Sect. 8. testiticaiidum, or a Avrit of siibpcena duces tecum, but no person ^^.jfj^^^ ^shall be compelled under any such writ to produce any document ^^^^y ,3^' which he could not be compelled to produce ou the trial of au action, summoaed by subpoeua. See Order 37, rules 26—34, and sect. 18 (//). 9. The time for making an award may from time to time be Sect. 9. <'nlarged by order of the Court or a judge, whether the time for p^^.^^ making the award has expired or not. enlmge time for making See the Lands Clauses Consolidation Act, 1845, ss. 23— 31 (z). award. Practice.— Application should be made by summons in Chambers, supported l)y affidavit ; the order will not be made ex parte. See iilso Order 64, rule 14.\. " The time . . . may ... be enlarged by order." — The Court may / Brothers [1901], 1 Q. B. 105 ; 70 L. J. K. B. 19; 49W. E. 111. {x) Fe>Uer V. Harchi (1902j, IS T. L. B. 591. (jl) Infra. (z) Aide, pp. 77 — 92. («) Lord V. Lee (1868), L. E. 3 Q. B. 404 ; 37 L. J. Q. B. 121 ; 10 N\ • 1^. S56; 9 B. & 8. 269; Ma>i v. JIarconrt (1884), 13 Q. B. D. 688. [h) lie Bare VaUeij BaiJicai/ Campanij (1869), L. E. 4 Cli. 554 ; 38 L. J . Ch. (r) Kiioirlt'S and Sons, Limited x. Bolton Corporation [1900], 2 Q. B. 253; ■69 L. J. Q. B. 481 ; 82 L. T. 229 ; 48 W. E. 433. 44—.^ 092 Appendix B. Sect. 10. power to refer back the award to the arbitrator or umpire (d), and the Court has this power even though the arbitrator he functus officio (e). Practice. — See Order 54, rule 12a, and Order 52, rules 1 — 3. The application to remit must be made within reasonable time, regard being had to the facts of the case (/). Grounds for Remitting. — An award may ))e sent back for review where there has been corruption or fraud or where it appears on the face of the award that there has been a mistake of law or fact, or if the arbitrator himself admits that he has made a mistake of law or fact (g) ; or if material evidence has been discovered since making the award f//) ; or where the arbitrator has exceeded his jurisdiction in dealing with a question not submitted to him(«'). Appeal. — An appeal from a refusal to set aside an award or remit it to the arbitrator is analogous to an application for a new trial, and should he set down in the list of interlocutor}' appeals (k). Arbitrator has no Power to Alter Award.— An arl:)itiator may not alter his award, except as to a clerical error within sect. 7 (/). Power to set aside award. Sect. 11. 11. — (1-) Where an arbitrator or umpire has misconducted him- self, the Court may remove him. (2.) Where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the Court may set the award aside. Practice.— See Order 40, rules 2, 6, 6a, Order 52, rules 1, 2, 4. As to time, see Order 64, rule 14 (nt). Where notice of motion has been given l^efore the last day of the sittings next after the award, the application was held to be within the time prescril^ed l:)y Order 64, rule 14, and the motion not too late, although it did not come on for hearing until the next sittings (?t). Under Order 64, rule 7, the Court has power to enlarge the time even where the application is not made till after the time has expired (o). Appeal. — An appeal from a judgment of the Divisional Court upon a motion to set aside the findings and judgment of an official referee ((7) He ]\('i(/JiJn/, Muxtcd (ii,(J Company [1893], 1 Q. 15. 405; 62 L. J. Q. B. 105; 68 L. T. 6l'; 41 W. E. 487 ; 4 E. 136; 7 Asp. M. C. 268. (e) He HtriiHjer ami Ililn/ JJroiher.^ [1901], 1 K. 15. 105; 70 L. J. Iv. B. 19; 49W. B. 111. {/■) Warhnrton v. lladiiajihit Local Board (1879), 48 L. J. C. P. 451. ((j) Diiui V. Jllale (1875); L. E. 10 C. P. 388 ; 44 L. J. C. P. 276; 32 L. T. 489. (//) lie KcifjIiJei/, Maxicd avd (Joinjxnnj [1893], 1 (i. V>. 405, suj/ra. (?') J{(- Gn'iu and Balfour (1890), 63 L. T. 325. (/.) y.V The Thhai<,a Jh// Cowpam/ and Tawnd (1889), 61 L. T. 343; 37 W. E. 578. (0 Mordae v. Palmer (1870), L. E. 6 Ch. 22 ; 40 L. J. Ch. 8 ; 23 L. T. 752 ; 19 W. E. 8(5, was overruled bj' sect. 7 (c), ante, p. 690. (m) Appendix D, jiost. (//) In re (lalh,,> (1890), 25 Q. P.. D. 230; 59 L. J. d. 1'.. 4(iO; (52 L. T. 834 ; ;i8 W. E. 621. (o) Be Olirer and SroU'.-< Arhifratam (1889), 43 Ch. D. 310; 59 L. J. ('\k 148 ; 61 I-. T. 552 ; 38 W. E. 476. 'Hw Arhiinttioii Jd, 1880. (393 is an appeal within sect. 1, sub-sect. 5, of the Judicature Act, 1894, Sect. 11. uiul cannot be brought without leave (j)). Misconduct. — Where one party sold his interest to his arbitrator "without tlie knowledge of the other arbitrator or tlie umpire, prior to the hearing, the award was set aside iq) ; so also where the arbi- trators, without proper notice, gave audience to one side in the absence of the other (r). An agreement that an award shall not be set aside for fraud is, in the absence of fraud on either side, valid and not against public policy (s). It is not a good objection to < the award of an umpire under the Lands Clauses Consolidation Acts that before nniking his award he has given evidence on behalf of one of the parties in another inquiry as to the value of land taken for the same purpose and under the same powers (t). Eefusal to state a special case under sect. 19 on a question of law is primd facie misconduct (?(). \Vliere a lump sunr is awarded l:)y an arbi- trator, and it appears on the face of the award, or is proved by extrinsic evidence, tliat in arriving at the lump sum matters were taken into account wliich the arbitrator had no jurisdiction to con- sider, the award is bad ; but it is not necessarily bad l^ecause it fails to state in terms that the arbitrator has rejected matters wliich were not properly referable (.r). 12. Au award ou a suhmissiou may, by leave of the Court or a Sect. 12. judge, be enforced in the same manner as a judgment or order to — the same effect. '^iS''^" I ward. Hee Order 51, rule 4f. Lands Clauses Consolidation Act, 1845. — See sect. 36 (//). The mode of enforcing the taking up of the award under that Act is by prerogative writ of mandamus (z). Where the basis of assessment is disputed, the mode of enforcing an award under this Act is by action: Loicther v. Caledonian liailway Company [a). (/') Daijlish V. Uioion [1900], 1 Q. B. 284; 08 L. J. il B. 1044; 81 L. T. oJl ; 48 \V. E. dO. ('/I JJlanchardv. Sun Fire Office (1890), G T. L. II. ;i()0. (/■) lie (ji-ei/svu and AriiistruiKj Arbitration (1894), 70 L. T. lOti ; 10 It. 408; T/>r IVurn-irk (1890), 15 P. 189 ; 63 L. T. oGl. {■i) TidUs V. Jac-son [1892], 3 Ch. 441 ; (51 li. J. Cli. 6-5.5 ; 67 L. T. ;J40 ; 41 W. If. 11. (/) !!>■ ]Ii(i<]]i and Linidun (tnd Xurf/i- Western J!ail";n/ CnnptiniJ [1896], 1 Q. 1!. 649 ; 6J L. J. Q. 13. Jll ; 74 L. T. 655 ; 44 W. R. 618. (") lie Falincr (iniL ('mnpami mid Ilnsken and Vom'piiny [1898], 1 U. B. 131 ; G7 L. J. Q. B. 1 ; 77 L. T. 350; 46 W. B. 49. I./) Fidhlmjlnun v. Victorian li'nihnti/.-i Ccnnni-svioiur [1900], A. C. 452; 69 L. J. r. C. 89 ; 82 L. T. 506. (//) Ante, p. 103. ('.) liey. \. London and Xortli- Western Uaihnnj ('ouqiany [1894], 2 Q. B. 512; 63 L. J. Q. B. 695 ; 10 B. 359; 55 J. P. 719; liey.\. London and Xorth- IVrstern liai/wa,/ ('onan>/ [1899], 1 U. B. 921; 68 L. J. Q. B. 685 ; 80 L. T. 782; London and yortlt-Wedem liailn-ay (/onipany \. Il'(^//irr [1900], A. C. 1 09 ; 69 L. J. Q. B. 367 ; 82 L. T. 93 ; 48 W. 11. 384 ; 64 J. P. 483. I") [1892], 1 Ch. 73 ; 61 L. J. Ch. 108 ; 66 L. T. 62 ; 40 AV. B. 225. 694 Appnulix 77. Sect. 12. Costs. — As to costs, see Lands Clauses Consolidation Act, 1845, s. 34(6); also Earl of Shrewsbury v. Wirral liailicays Committee [c), where it was held that a landowner who took up an award could not recover the costs of the arbitration from tlie promoters. Public Health Act, 1875, s. 150. — An award under sect. 150 of that Act cannot be enforced under this section, as the section only applies where the rights and liabilities of the parties have been definitely settled, whereas under the Public Health Act nothing more than a quantum or amount is adjudicated upon, and there is no adju- dication as to the liability of the person who is called upon to pay the amount {d). Sect. 13. Reference for report. Sect. 14. Power to refer in certain cast liefereiiccs iiitdo- Order of Court. 13. — (.1.) Subject to Rules of Court and to any right to liave particular cases tried by a jury, the Court or a judge may refer any question arising in any cause or matter (other than a criminal proceeding by the Crown) for inquir}' or report to any official or special referee. (2.) The report of an official or s])ecial referee may be adopted wlioll}' or partially by the Court or a judge, and if so adopted may be enforced as a judgment or order to the same effect. 14. In any cause or matter (other than a criminal i)roceeding by the Crown), — (a) If all the parties interested who are not under disability consent : or, (b) If the cause or matter requires any prolonged examination of documents or any scientific or local investigation which cannot in the opinion of the Court or a judge conveniently be made before a jury or conducted by the Court through its other ordinary officers : or, (c) If the question in dispute consists wholly or in part of matters of account ; the Court or a judge may at an}- time order the whole cause or matter, or any question or issue of fact arising therein, to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an official referee or officer of the Court. Sect. 15. 15. — (1.) In all cases of reference to an official or special referee or arbitrator under an order of the Court or a judge in an}- rt^unera'tion ^^^^^ ^^' iTiatter, the official or special referee or arbitrator shall be of referees and deemed to be an officer of the Court, aiul shall have such authority, arbitrators. and shall conduct the reference in such manner, as may be prescribed by liules of Court, and subject thereto as the Court or a judge may direct. (/') Jlltr, I). Uo. {<■) [1S96], 2 Ch. S12 ; (H I.. J. ( 'li. s.)(> ; To T,. T. -j:;-! : A-\ W. E. 19 : lii U, 546. (meri/ (tnd Coininniij utid LiehentlntJ (1898), 78 L. T. 400. (y) Tuheniade Pcrmuueid BuildliKj Sariefi/ v. Kniijld [1IS92]. A. C. 302; 62 L. J. Q. B. 50 ; 67 L. T. 483 ; 41 W. E. 207 ; oG J. E. 709. (A) lltf Montijviin-ry and Coinjnnn/, if-c, supra. (/) 7iV Kirkhathua Load 7;o«?v/"[1893], 1 Q. B. 375; 62 L. J. Q. B. 180 ; 07 L. T. 811 ; 4 E. 194 ; 57 J. V. 421. 696 Appendix B. Sect. 19. Sect. 20. Costs Sect. 21. Exercise of powers by masters and other officers. Sect. 22. Penalty for perjiuy. Sect. 23. Crown to be bound. Sect. 24. Application of Act to refer- ences under statutory powers. "And shall." — There is nothing to prevent a party applying to the Court for a special case in the fact that the arbitrator has expressed no opinion hostile to such party on the point (k). Appeal. — The decision of the Divisional Court on the special case is an opinion, not a judgment or order, and therefore there is no appeal from their decision {/). See also the Judicature Act, 1894, s. 1 (b) (v.). Costs. — Unless the Court imposes terms as to costs at the time when tlie order for a special case is made, the Court cannot award costs on the hearing, the costs in such case being costs of the arbitration to be dealt with by the arbitrator (7u). 20. Any order made under this Act may be made on such terms as to costs, or otherwise, as the authority making the order thinks just. 21. Provision may from time to time be made by Rules of Court for conferring on any master, or other officer of the Supreme Court, all or any of the jurisdiction conferred by this Act on the Court or a judge. See Order 54, rule 12a. 22. Any person who wilfully and corruptly gives false evidence before any referee, arbitrator, or umpire shall be guilt}' of perjury, as if the evidence had been given in open Court, and may be dealt with, prosecuted, and punished accordingly. 23. This Act shall, except as in this Act expressly mentioned, apply to any arbitration to which Her Majesty the Queen, either in right of the Crown, or of the Duchy of Lancaster or otherwise, or the Duke of Cornwall, is a party, but nothing in this Act shall empower the Court or a judge to order any proceedings to which Her Majesty or the Duke of Cornwall is a party, or any question or issue in any such jiroceedings, to be tried before any referee, arbitrator, or officer without the consent of Her Majesty or the Duke of Cornwall, as the case may be, or shall affect the law as to costs payable by the Crown. 24. This Act shall apply to every arbitration under any Act passed before or after the commencement of this Act as if the arbitration were pursuant to a submission, except in so far as this Act is inconsistent with the Act regulating the arbitration or with any rules or procedure authorised or recognised by that Act. Tlie effect of this section is to apply the arbitration provisions to arbitrations under any other Act, except so far as the arbitrations (/.•) Be Spillers and Bal-er [1S97], 1 Q. B. ;512 ; 06 L. J. Q. B. ;32() ; 76 L. T. 35; 45 W. 11. 241. (/) /iV Kniijlif iiikI Tdha-iiiKlf Bin7ilinii)//it (iml Tabiiinirli: JinildiiKj Socirfi/, i) In re (lOiifi/ a ml Hn- ^ranrJu-ifir, S/iff/i'/iJ, a ml J.iiirohisliire Railway ('imiiKiny [1896], "2 U. B. 439, 450; (ho L. J. Q. 13. 625; 75 L. T. 239; 45 AY. R. 83. ('/) Re Williams awl Stt-jmey [1891], 2 Q. E. 257 ; 60 L. J. Q. B. 635; 65 L. T. 208; 39 W. Pi. 533. See al:«o R< Wilson and Sons ami Eastern Counties^ *tv., Comjumy [1892], 1 Q. B. 81; 61 L. J. Q. B. 237; 65 L. T. 853. (/•) Ani^, p. 83. 098 Sect. 28. Exlent. Sect. 29. Commence- ment. Sect. 30. Sliort title. Appruili.r J I. 28. This Act shall not extend to Scotland or Ireland. 29. This Act shall commence and come into operation on the first day of January one thousand eij^dit hundred and ninety. 30. This Act may he cited as the Arbitration Act, 1889. ***** The Secoxd Schedule. Enactments Repealed. Session and Chapter. Title or Short Title. 9 Will. '6, c. 15. '6 &: 4 Will. 4, c. 42. 17 & IS Vict. c. 125. 36 & 37 Yict. 0. 66. An Act for determining dilferences by arbitra- tion. An Act for the further amendmeut of the law and the better advauce- mont of justice. The Common Law Pro- cedure Act, 1854. The Supreme Court of Judicature Act, 1873. Extent of Rejieal. The whole Act. Sections thirty-nine to forty-one, both in- clusive. Sections three to seven- teen, both inclusive. Section fifty-six, from "Subject to an J' Eules of Court" down to " as a judgment by the Court," both inclu- sive, and the words "special referees or." Sections fifty-seven to fifty-nine, both inclu- sive. 47 & 48 Yict. c. 61. Tlio Supreme Court of Sections nine to eleven,. Judicature Act, 1884. both inclusive. 699 APPENDIX C. SETTLED LAND ACT, 1882 (45 & 46 Vict. c. 38). ***** In rest Die lit or otltrr Application of Capital Trust Moiiej/. 21. Capital money arising under this Act, subject to pa}'- Sect. 21. ment of claims projierly payable thereout, and to application , . thereof lor any special authorised object for which the same was mouey under raised, shall, when received, be invested or otherwise applied Act : invest- wholly in one, or partly in one and partly in another or others, of "'ent, &c., by the following modes (namely) : ^^^?^^^^^';^ "'" The Court has no jurisdiction to order capital moneys to be paid to persons resident abroad, even although all the beueliciaries are domiciled abroad: In re Lloyd, Edwanh v. Llo//d{a). (i.) In investment on Government securities, or on other securi- ties on which the trustees of the settlement are by the settle- ment or by law authorised to invest trust money of the settlement, or on the security of the bonds, mortgages, or debentures, or in the purchase of the debenture stock, of any railway company in Great Britain or Ireland incorporated by special Act of Parliament, and having for ten years next before the date of investment paid a dividend on its ordinary stock or shares, with power to ^ary the investment into or for any other such securities : See the Trustee Act, 1893 (56 & 57 Vict. c. 53), ss. 1 — 7, as to investments permitted b}- law to trustees. (ii.) In discharge, purchase, or redemption of incumbrances affecting the inheritance of the settled land, or other the whole estate the subject of the setLlement, or of land tax, rent-charge in lieu of tithe. Crown rent, chief rent or quit rent, charged on or payable out of the settled land : The words " whole estate " refer to an interest in the settled land, and not to the land itself ; therefore capital moneys arising under the Act may be applied in the discharge, purchase, or redemption of incumbrances which affect only a part of the land : In re CJiaytor's {<() W. X. (ISSG) 37 ; 54 L. T. U3. 700 Appciulix C. Sect. 21. Settled Estate Act {b). For this purpose a mortgage of a long term is ■ equivalent to a mortgage in fee : In re Freiven, Freiceu v. James (c). An annuity charged upon tithes for a long term is an " incum- brance " within the sub-section, in the redemption of which capital moneys may be applied : In re Esdaile (d). Where there are several estates held under the same trust, capital moneys arising from one of the estates may be applied in discharge of incumbrances affecting another where this is for the benefit of all parties: In re Stamford's (Lord) Settled Estates (e). See also on this point : In re JIundy's Settled Estate (f), In re Bymfs Settled Estates (g), In re Freme, Freme v. Lo(jan (h), In re Eyre Coote, Coote v. Cadogan (/). The word "incumbrance" in this sub-section did not, prior to the Settled Land Act, 1887, include terminable charges. See now sect. 1 of that Act, 2)ost. (iii.) In payment for any improvement authorised by this Act : See also sect. 25, and Settled Land Act, 1887, s. 2, and Settled Land Act, 1890, ss. 13 and 15. (iv.) In payment for equality of exchange or partition of settled land : (v.) In purchase of the seignory of any part of the settled laud, being freehold land, or in purchase of the fee simple of any part of the settled land, being copj'hold or customary land : (vi.) In purchase of the reversion or freehold in fee of any part of the settled land, being leasehold land held for years, or life, or years determinable on life : (vii.) In purchase of laud in fee simple, or of copyhold or customary land, or of leasehold land held for sixty years or more unexpired at the time of purchase, subject or not to any exception or reservation of or in respect of mines or minerals therein, or of or in respect of rights or powers relative to the working of mines or minerals therein, or in other laud : This sub- section does not authorise the investment of capital money in the purchase of an equity of redemption : In re liadnor's (Earl) Settled Estates {k). Where money is authorised by statute, e.g., the Lands Clauses Act, the Settled Estates Act, or a private Act, or by a settlement, to be laid out in the purchase of land, such money may be applied in the erection of new ])uildings, l)ut not in permanent improvements : (b) (1884), 25 Ch. D. 651 ; 53 L. J. Ch. 31'J ; 50 L. T. 88 ; 32 W. E. 517. (c) (1888), 38 Ch. D. 383 ; 57 L. J. t 'h. 105:2 ; 5i» L. T. 131 ; 3(j AV. E. 84(». (f/) (1886), 54 L. T. 637. (<-) (1890), 43 Ch. D. 84 ; 58 L. J. Ch. 84i); 61 L. T. 504. ( /■) [1891], 1 ("h. 399; 60 L. J. ("h. 273; 64 L. T. 29 ; 39 W. 1!. 209. ((/) [1892], 2 Ch. 219; 61 L. .J. Ch. 511 ; 66 L. T. 754 ; 40 W. E. 457. (/,) [1894], 1 Ch. 1 ; 63 L. J. Ch. 1:59; 69 L. T. 613; 42 W. E. 119. (i) (1900), 81 L. T. .y.i.-). (A-) W. X. (1898), 174. SrftJed Lrnid Act, 1882. 701 Sect. 21. Drale v. Trefnsis (I). The Settled Land Act itself contains extensive provisions as to erection of buildings. See sect. 25, ^:)osf, and sect. 13 of the Settled Land Act, 1890, post. (viii.) In purchase, either in fee simple, or for a term of sixty years or more, of mines and minerals convenient to be held or worked with the settled land, or of any easement, right, or privilege convenient to be held with the settled land for mining or other purposes : (ix.) In payment to any person becoming absolutely entitled or empowered to give an absolute discharge : (x.) In payment of costs, charges, and expenses of or incidental to the exercise of any of the powers, or the execution of any of the provisions, of this Act : It was held in In re Stamford's (Lord) Settled Estates ((in) that the costs as between solicitor and client of the solicitor and surveyor of the tenant for life of preparing and carrying out the schemes for various improvements were costs which came within this sub-section, and were consequently payable out of the capital moneys. An estate agent's commission for procuring a lease of the settled land is also payable out of capital money : In re Man/on Wilson's Settled Estate (n). (xi.) In any other mode in which money produced by the exercise of a power of sale in the settlement is applicable thereunder. Capital money may be applied for certain purposes under the Agricultural Holdings Acts, 1883 (46 & 47 Yict. c. 61) and 1900 (63 & 64 Vict. c. 50). 22. — (1.) Capital money arising under this Act shall, in order to its being invested or applied as aforesaid, be paid either to the trustees of the settlement or into Court, at the option of the tenant for life, and shall be invested or applied by the trustees or under the direction of the Court, as the case may be, accordingly. aiKi incomo oE This section presupposes that there are trustees for the purposes securities, &c. of the Act in existence, so that if there are no trustees a purchaser cannot be required to pay the purchase-money into Court : In re Fisher and Grazebrook's Contract (o). Where, however, the purchaser pays the purchase-money into Court in ignorance of the fact that there are no trustees in existence, he will get a good title (o). (2.) The investment or other application by the trustees shall be made according to the direction of the tenant for life, and in default thereof, according to the discretion of the trustees, but in the last-mentioned case subject to any consent required or direction given by the settlement with respect to the investment or other {/) (1S75), L. R. 10 Ch. 364 ; 33 L. T. 85 ; 23 W. E. 762. (vh) (1890), 43 Ch. D. 84 ; 58 L. J. Ch. 849 ; 61 L. T. 504. («) [1901], 1 Ch. 934 ; 70 L. J. Ch. 500 ; 84 L. T. 708. (o) [1898], 2 Ch. 660 ; 67 L. J. Ch. 613; 79 L. T. 268 ; 47 W. E. 58 Sect. 22. Eegulatiiiiis respecting- investment, (levfilution. 702 Appendix C. Sect. 22. Sect. 23. Investment in land in En<;lan 1 i 1 i_ J. ii /-I 1. Land Lom- for approval to the trustees or the settlement, or to the Court, as mjssioners of the case may require, a scheme for the execution of the improve- scheme for ment, showing the proposed expenditure thereon. Lnd^^avment See also sect. 15 of the Settled Land Act, 1890, post. The Court thereon, will not make a prospective order for the expenditure of capital moneys when such moneys shall come into the hands of the trustees : In re Millard's Settled Estates {e). But where a scheme has been submitted to the trustees by the tenant for life and approved by them before they have capital moneys in hand, and the scheme has been executed and paid for by the tenant for life bond fide, the trustees are (22) Ante, p. 703. (o) W. N. (l.Si)4), 135. (h) [1891], 1 Ch. 399; 60 L. J. Ch. 273 ; 64 L. T. 29 ; 39 W. E. 209. (c) [1S931, 3 Ch. 252 ; 63 L. J. Ch. 23 ; 69 L. T. 393 ; 9 T. L. E. 587. id) (1887), 35 Ch. D. 307 ; 56 L. J. Ch. 302 ; 56 L. T. 294 ; 35 W. E. 603. {e) [1893], 3 Ch. 116; 62 L. J. Ch. 761 ; 69 L. T. 202; 41 W. E. 577; 9 T. L. E. 514. L.c. 45 706 Appendix C. Sect. 26. Sect. 27. Concurrence in improve- ments. Sect. 28. Obligation on tenant for life and suc- cessors to maintain, insure, &c. entitled with or without the apx^roval of the Court, to reimburse such expenditure where it has been for the benefit of all parties interested : In re Duke of No7-foIk's Estates (/). (2.) Where the capital money to he expended is in the hands of trustees, then, after a scheme is approved by them, the trustees may apply that money in or towards payment for the whole or part of any work or operation comprised in the improvement, on (i.) A certificate of the Land Commissioners certifying that the work or operation, or some specified part thereof, has been properly executed, and what amount is properly payable by the trustees in respect thereof, which certificate shall be con- clusive in favour of the trustees as an authority and discharge for any payment made by them in pursuance thereof; or on The Land Commissioners are now replaced by the Board of Agiiculture. (ii.) A like certificate of a competent engineer or able practical surveyor nominated by the trustees and approved by the Commissioners, or by the Court, which certificate shall be conclusive as aforesaid ; or on (iii.) An order of the Court directing or authorising the trustees to so apply a specified portion of the capital money. (3.) Where the capital money to be expended is in Court, then, after a scheme is approved by the Court, the Court may, if it thinks fit, on a report or certificate of the Commissioners, or of a competent engineer or able practical surveyor, approved by the Court, or on such other evidence as the Court thinks sufficient, make such order and give such directions as it thinks fit for the application of that money, or any part thereof, in or towards pay- ment for the whole or part of any work or operation comprised in the improvement. 27. The tenant for life may join or concur with any other person interested in executing any improvement authorised by this Act, or in contributing to the cost thereof. 28. — (1.) The tenant for life, and each of his successors in title having, under the settlement, a limited estate or interest only in the settled land, shall, during such period, if any, as the Land Commissioners by certificate in any case prescribe, maintain and repair, at his own expense, every improvement executed under the foregoing provisions of this Act, and where a building or work in its nature insurable against damage by fire is comprised in the improvement, shall insure and keep insured the same, at his own expense, in such amount, if any, as the Commissioners by certificate in any case prescribe. (2.) The tenant for life, or any of his successors as aforesaid, shall not cut down or knowingly permit to be cut down, except in (/) [1900], 1 Ch. 461 ; 69 L. J. Ch. 236 ; 82 L. T. 613; 48 W. E. 328. Settled Land Act, 1882. proper tliiuniug, any trees planted as au improvement under the foregoin*^ provisions of this Act. (3.) Tlie tenant for life, and each of his successors as aforesaid, shall from time to time, if required hy the Commissioners, on or without the suggestion of any person having, under the settlement, any estate or interest in the settled land in possession, remainder, or" otherwise, report to the Commissioners the state of every improvement executed under this Act, and the fact and particulars of fire insurance, if any. (4.) The Commissioners may vary any certificate made hy them under this section, in such manner or to such extent as circum- stances appear to them to require, hut not so as to increase the liahilities of the tenant for life, or any of his successors as aforesaid. (5.) If the tenant for life, or any of his successors as aforesaid, fails in any respect to comply with the requisitions of this section, or does any act in contravention thereof, any person having, under the settlement, any estate or interest in the settled land in pos- session, remainder, or reversion, shall have a right of action, in respect of that default or act, against the tenant for life ; and the estate of the tenant for life, after his death, shall be liable to make good to the persons entitled under the settlement any damages occasioned by that default or act. 707 Sect 28 Execution and Repair of Inipvovcnients. 29. The tenant for life, and each of his successors in title Sect. 29. having, under the settlement, a limited estate or interest only in pj-Q^^^^ as the settled land, and all persons employed by or under contract regards waste with the tenant for life, or any such successor, may from time in execution to time enter on the settled land, and, without impeachment of f,^pi.oTC^'^ °^ waste by any remainderman or reversioner, thereon execute any ments. improvement authorised by this Act, or inspect, maintain, and repair the same, and, for the purposes thereof, on the settled land, do, make, and use all acts, works, and conveniences proper for the execution, maintenance, repair, and ase thereof, and get and work freestone, limestone, clay, sand, and other substances, and make tramways and other ways, and burn and make bricks, tiles, and otlier things, and cut down and use timber and other trees not l)lanted or left standing for shelter or ornament. Improvement of Land Act, 1864. 30. The enumeration of improvements contained in section nine Sect. 30. of the Improvement of Land Act, 1864, is hereby extended so as to ^/~~^ c comprise, subject and according to the provisions of that Act, but 27 & 28 Vict, only as regards applications made to the Land Commissioners c. 114, s. 9. after the commencement of this Act, all improvements autliorise 1 by this Act. Section 9 of the Improvement of Land Act 1864, is as follows : — "By 'the improvement of land ' shall herein be meant all or any of the following matters : " 1. The drainage of land and the straitening (.s/(), widening, 45—2 708 Appendix C. Sect. 30, deepening, or otherwise improving the drains, streams and water- courses of any kind : " 2. The irrigation and warping of land : " 3. The embanking and weiring of kind from tli'e sea or tidal waters, or from lakes, rivers, or streams, in a permanent manner : " 4. The inclosing of lands and the straitening (sic) of fences and re-division of fields : "5. The reclamation of land, including all operations necessary thereto : " 6. The making of permanent farm roads and permanent tramways and railways and navigable canals for all purposes connected with the improvement of the estate : " 7. The clearing of land : " 8. The erection of labourers' cottages, farmhouses, and other buildings required for farm purposes, and the improvement of and addition to labourers' cottages, farmhouses and other buildings for farm purposes already erected, so as such improvements or additions be of a permanent nature : " 9. Planting for shelter : " 10. The constructing or erecting of any engine-houses, water- wheels, saw and other mills, kilns, shafts, wells, ponds, tanks, reservoirs, dams, leads, pipes, conduits, water-courses, bridges, weirs, sluices, flood-gates, or hatches, which will increase the value of any land for agricultural purposes : " 11. The construction or improvement of jetties or landing places on the sea coast, or on the banks of navigable rivers or lakes, for the transport of cattle, sheep, and other agricultural stock and produce, and of lime, manure, and other articles and things for agricultural purposes ; provided that the Connnissioners shall be satisfied that such works will add to the permanent value of the lands, to be charged to an extent equal to the expense thereof : " 12. The execution of all such works as in the judgment of the Commissioners may be necessary for carrying into effect any matter hereinbefore mentioned, or for deriving the full benefit thereof." Sect. 32. Application of money in Court under Lands Clauf-es and other Acts : 8 & 9 Vict. c. 18 ; 23 & 24 Vict, c. 106 ; 82 &i 33 Vict. c. 18; 40 & 41 Vict. c. 18. IX. Miscellaneous PiiOvisioNS. 32. AVhere, under an Act incorporating or applying, wholly or in i)art, the Lands Clauses Consolidation Acts, 1845, 1860, and 18(59, or under the Settled Estates Act, 1877, or under any other Act, public, local, personal, or private, money is at the connnence- mcnt of this Act in Court, or is afterwards paid into Court, and is liable to be laid out in tin- junchase of land to be made subject to a settlement, then, in addition to any mode of dealing therewith authorised by the Act under which the money is in Court, that money may be invested or applied as capital money arising under Settled Land Jd, 1882. 709 this Act, on tlie like terms, if any, respecting costs and other Sect. 32. things, as nearly as circumstances admit, and (notwithstanding anything in this Act) according to the same procedure, as if the modes of investment or application authorised by this Act were authorised by the Act under which the money is in Court. The Court has jurisdiction under this section and sect. 22 when read together, to order money paid in upon a sale of land by the tenant for life under the Lands Clauses Act, 1845, to be paid to the trustees of the settlement, the tenant for life consenting : In re Rut- land's {Duke) Settlement (g). See also In re WrigJit's Trusts (h), In re Harrops Trusts {i), In re Bathminesl Drainage Act{k), In re Wooton's Estate (/), In re Belfast Improvement Acts (m). Where funds of large amount were in Court, representing the proceeds of sale of settled lands which were vested in a tenant in tail who was restrained by statute from alienating, the funds were, on the application of the tenant in tail, ordered to be paid oiit to trustees appointed for the purposes of the Settled Land Acts ; but the Court, while of opinion that it would ])e proper for the trustees to give notice to the tenant in tail next in remainder of everything proposed to be done, could not impose upon the trustees any conditions as to giving such notice : In re Bolton Estates Act («). x\ public body taking lands compulsorily must pay any extra- ordinary additional expenses caused by the circumstances of the case. See In re Brooshoft's Settlement {o), In re Olive's Estate {jj), In re Arclen (q), In re EisJier{r). The proceeds of lands belonging to a charity paid into Court can be dealt with under this section as " money hable to be laid out in the purchase of land to be made subject to a settlement" : In re Byron a Charity (s). So, too, can the purchase-money of glebe lands which have been compulsorily taken by a railway company : Ex parte Vicar of Castle Bytham [t) ; and the purchase-money of land belonging to a municipal corporation : Ex parte London Corporationiii). As to costs of interim investment, see In re Hanbimfs Trusts (x). As to separate examination of a married woman, party to a petition (y) (1883), 49 L. T. 195 ; 31 AV. E. 9-17. [ii) (1883), 24 Ch. L>. (J(i2 ; 53 L. J. Ch. 139. (0 (1883), 24 Ch. D. 717 ; o3 L. J. Ch. 137 ; 48 L. T. 937. [k) (1885), 15 L. li. Ir. 576. (/) W. IS'. (189U), 158. {in) [1898], 1 Ir. iJ. 1. (») (1885), 52 L. T. 728. [o) (1889), 42 Ch. L>. 250 ; 58 L. J. Ch. (i54 ; 61 L. T. 320 ; 37 AV. E. 744. (2,) (1890), 44 Ch. L>. 316, 59 L. J. Ch. 360; 62 L. T. 626; 38 AY. E. 459. Iq) (1894), 70 I.. T. 506. (r) [1894], 1 Ch. 53, 450; 6'^ L. J. Ch. 235; 70 L. T. 62; 42 ^\. E. 241. (s) (1883), 23 Ch. D. 171 ; 53 L. J. Ch. 152 ; 48 L. T. 515 ; 31 AV. E. 517. {t) [1895], 1 Ch. 348 ; 64 L. J. Ch. 116; 71 L. T. 606; 43 AV. E. 156. («) (1900), 17 T. L. E. 232. (a,-) (1883), 52 L. J. Ch. 687 ; 31 W. E. 784. 710 AjypemJix C. Sect. 32. for payment out, see In re Ward's Settled Estates (ij) and In re Bait's - Settled Estates (z). Where an application for payment out by petition is cheaper and more expedition's than by summons, the Court' may allow the costs of the petition: In re Bethlehem and Brideiuell IIosintals{a). Sect. 36. 36. The Court may, if it thinks fit, approve of any action, ~T defence, petition to Parliament, parliamentary opposition, or other for protec^on proceeding taken or proposed to be taken for protection of settled or recovery of land, or of any action or proceeding taken or proposed to be taken land settled ji-q^. recovery of laud being or alleged to be subiect to a settlement, settled. ^^^^ ^'^^1 direct that any costs, charges, or expenses incurred or to be incurred in relation thereto, or any part thereof, be paid out of property subject to the settlement. The Court in Lunacy can make an order under this section giving leave to the committee of a lunatic tenant for life to oppose a bill in Parliament : In re Blake (b). Under its general jurisdiction the Court can allow the costs of opposing bills in Parliament to be paid out of capital moneys : In re Ormrod's Settled Estates (c). Similarly, the Court has power to allow the costs of an action to establish rights to be paid out of the estate : Hamiltony. Tighe (d). See also In re Earl of Aylesford's Estates (e). As to costs of an application to Parliament, see Stanford v. Boherts (/). SETTLED LAND ACTS (AMENDMENT) ACT, 1887 (50 & 51 Vict. c. 80). Sect. 1. 1. Where any improvement of a kind authorised by the Act of "~j~ 1882 has been or may be made either before or after the passing of of s. 21 of the ^^^^ '^ct, and a rent-charge, whether temporary or perpetual, has Settled Land been or may be created in pursuance of any Act of Parliament, with Act, 1882. j^i^g object of paying off any moneys advanced for the purpose of defraying the expenses of such improvement, any capital money expended in redeeming such rent-chiirge, or otherwise providing for the payment thereof, shall be deemed to be applied in payment for !in improvement authorised by the Act of 1882. See also sect. 15 of Settled Land Act, 1890, post. By this section trustees are authorised to apply capital moneys in (y) W. N. (1895), 41. (2) [LSyT], 2 Ch. 65; 66 L. J. Ch. 6:35; 45 AV. R. 611. («) (1885), ;30 Ch. D. 541 ; 54 L. J. Ch. 114;j; 5;j L. T. 558 ; U W. 11. 148. ih) (1895), 72 L. T. 280. (0 [1892], 2 Ch. 318; 61 ].. J. Ch. 651 ; My L. T. 815 ; 40 \\ . R. 490. {i re Clarke's Settlement (t) it was said that an " addition " within the sub-section must be a structural addition. In Standing v. Ciraij (n) it was held that the laying of a new system of drainage came within the sub-section, and semble, that the putting in of a bath and hot-water supply were likewise wnthin it. See also In re GaskeU's Settled Estates {x), and In re Lord Gerard's Settled Estates [y). (iii.) Erection of buildings in substitution for buildings within an urban sanitary district taken by a local or other public authority, or for buildings taken imder compulsory powers, but so that no more money be expended than the amount received for the buildings taken and the site thereof; (iv.) The rebuilding of the principal mansion house ou the settled land : Provided that the sum to be applied under this sub-section shall not exceed one-half of the annual rental of the settled laud. As to meaning of " annual rental," and also as to " rebuilding," see In re De Teissers Settled Estates (z). In re Lord Gerard's Settled Estates (a). In re Walker's Settled Estate [b), In re Lord de Tabley, Leighton v. LeigJiion (c), In re Wright's Settled Estates [d). The cost of works which are not permanent improvements will not be allowed out of capital moneys : In re Tucker's Settled Estates(e); but in every {>,) [1901], 1 Ch. 440 ; 70 L. J. Ch. 203 ; S3 L. T. 756; 49 W. E. 315 (r) [1902], , , ___ [s] [1902], 87 L. T. 62, S. C. in C. A. [1903], 1 Ch. 560. (t) Kiiij)r(i. {u) [1903], 1 W. 11. 49. (a-) [1894], 1 Ch. 485; 63 L. J. Ch. 243 ; 42 W. R. 219. (2) Supra. (a) Siijira. (b) [1894], 1 Ch. 189; 63 L. J. Ch. 314 ; 70 L. T. 259. (c) W. N. (1896), 162. {d) (1900), S3L. T. 159. (f) [1895], 2 Ch. 468 ; 61 L. J. Ch. 513 ; 72 L. T. 619 ; 43 W. R. 581, trustees. Sect. 16. Settled Land Act, 1890. 713 •case the question depends on the circumstances : In re Thomas, Sect. 13. Wethemll v. Thomas (/). See also note on sub-section (ii.), supra. In In re LegJi's Settled Estates (g) the Court sanctioned the repay- ment to the tenant for hfe by the trustees out of capital moneys of a sum equal to one-half of the rental of the settled estate where the tenant for hfe had rebuilt and reconstructed the mansion house, but the Court declined to allow the repayment of any additional sum by way of salvage. 14. All or any part of any capital money paid into Court may, Sect. 14. if the Court thinks fit, be at any time paid out to the trustees of (_.^_j^ the settlement for the purposes of the Settled Land Acts, 1882 to money in 1890. Court may be paid out to 15. The Court may, in any case where it appears proper, make an order directing or authorising capital money to be applied in or towards payment for any improvement authorised by the Settled c'ourt may Land Acts, 1882 to 1890, notwithstanding that a scheme was not, order pay- before the execution of the improvement, submitted for approval, "1.^°*^°^^^° as required by the Act of 1882, to the trustees of the settlement or executed. to the Court. The Court cannot under this section direct the trustees to apply capital moneys in repaying to the tenant for life any instalments of a rent-charge paid by him before the date at which he has required provision to be made for payment or redemption under the Settled Land Act, 1887 : In re Dalison's Settled Estate (h). As regards the cost of improvements executed since the commence- ment of the Act of 1882, this section is retrospective in its operation, and enables the Court to direct payment out of capital moneys : In re Ormrod's Settled Estate (i). Under this section the Court will not make a prospective order directing future capital money to be applied in repayment to the tenant for life money expended by him on permanent improvements he has already executed, or in keeping down rent-charges created by him for raising money for such improvements : In re Bristol's (2Iarquis) Settled Estates {k). The section gives the Court a discre- tion which it may refuse to exercise in favour of the tenant for hfe, where there is a trust which provides for improvements : Cardigaii (Countess) v. Curzon-Hoiceil), In re Partington, Beigh v. Kane{m). Improvements executed and paid for by the tenant for life without the submission of a scheme may be reimbursed out of capital moneys, (/) [1900], 1 Ch. 319 ; 69 L. J. Ch. 198 ; 48 W. E. 409. {g) [1902], 2 Ch. 274; 71 L. J. Ch. 668; 86 L. T. 884; 50 W. E. 570; 66 J. P. 600. (/<) [1892], 3 Ch. 522; 61 L. J. Ch. 712; 41 W. E. 15. (0 [1892], 2 Ch. 318; 61 L. J. Ch. 651 ; 66 L. T. 845; 40 W. E. 490. (/c) [1893], 3 Ch. 161 ; 62 L. J. Ch. 901 ; 69 L. T. 304 ; 42 W. E. 46. (0 [1893], 9 T. L. E. 244. (m) [1902], 1 Ch. 711 ; 71 L. J. Ch. 472 ; 86 L. T. 194 ; 50 W. E. 388. 714 Appendix C. Sect. 15. but the Court, in sanctioning such reimbursement, will take care that no expenses are thrown upon capital which, as between tenant for life and remainderman, ought in fairness to be paid out of income : In re Tucker s Settled Estates («). So, too, will the tenant for life be reimbursed where his expenditure on improvements has been with the knowledge of the trustees : In re Earl of Lishurne's Settled Estates (o). Where the expenditure has been made by the trustees themselves the Court will permit such expenditure to be recouped out of capital moneys in the same way as reimbursement is allowed where the expenditure has been by the tenant for life : In re Thomas, Weatlierall v. Tlioriias{p). Under this section the Court can direct capital moneys to be applied in payment for improvements unauthorised by the Act of 1882 but aiithorised by a settlement made prior to the Act of 1890 : In re Egmont's (Earl) Settled Estates, Egmont v. Lefroy (q). {ii) Aide, p. 712. {o) W. N. (1901), 91. ( jj) Ante, p. 713. {q) (1900), 16 T. L. E. 300. APPENDIX D. 715 ORDER ^LII. (Order 53, E.S.C., 187o.) Motions and otJirr ^ipplicdtions. 1. Where by these rules any appHcation is authorised to be Application made to the Court or a judge, such application, if made to a '^^ motion. Divisional Court or to a judge in Court, shall be made by motion. 2. Xo motion or application for a rule nisi or order to show cause shall hereafter be made in any action or to set aside, remit, or enforce an award, or for attachment, or to answer the matters in an affidavit, or to strike oflt" the rolls, or against a sheriff to pay money levied under an execution. Eestiiction on rules niii and orders to show cause. 4. Every notice of motion to set aside, remit, or enforce an award, or for attachment, or to strike off the rolls, shall state in general terms the grounds of the application; and, where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion. 5. Unless the Court or a judge give special leave to the contrary there must be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion ; provided that in applications to answer the matters in an affidavit or to strike off the rolls the notice of motion shall be served on the parties not less than ten clear days before the time fixed by the notice for making the motion. 6. If on the hearing of a motion or other application the Court or a judge shall be of opinion that any person to whom notice has not been given ought to have or to have had such notice, the Court or judge may either dismiss the motion or application, or adjourn the hearing thereof, in order that such notice may be given, upon such terms, if any, as the Court or judge may think fit to impose. 7. The hearing of any motion or application may from time to time be adjourned upon such terms, if any, as the Court or judge may think lit. When grounds of notice of motion to be stated. Length of notice of motion. Motions may be dismissed or adjourned where necessarj' notice not given. Adjournment of iiearing. 18. In the case of applications under Acts of Parliament Affidavits directing the purchase-money of any property sold to be paid into "P^'^ applica- Court, any persons claiming to be entitled to the money so paid statute direct- in must make an affidavit not only verifying their title, but also ing purchase- stating that they are not aware of any right in any other person, or mon'^y to °^ Court. 710 Appendix I). of any claim made by any other person, to the sum claimed, or to any part thereof, or, if the petitioners are aware of any such right or claim, they must in such affidavit state or refer to and except the same. ORDER LXIV. (Order 57, R.S.C., 1875.) Time. Time for 14. An application to set aside an award may be made at any applicatiou to j^jj^g before the last day of the sittings next after such award has award. been made and published to the parties. Enlar£?inc l^k. Where the time for making an award is enlarged, the time for enlargement shall be deemed to be for one month unless a diiferent award. ^ime is specified in the order. APPENDIX E. SUPREME COURT FUNDS RULES, 1894. 717 IV. Lodgment of Funds in Court. 29. All funds to be paid into or deposited in Court shall be paid or deposited at the Bank of England (Law Courts Branch), or in the case of funds to be lodged in Court in the district registries of the High Court in Liverpool or Manchester, at the branch banks of the Bank of England in Liverpool or Manchester, and placed in the books of the bank to the account of the Paymaster- General for the time being for and on behalf of the Supreme Court of Judica- ture ; and the bank shall cause a receipt to be given to the person making the payment or deposit. All securities to be transferred into Court shall be transferred to the said account in the books of the bank or other company in whose books such securities are registered. Any effects brought to the bank to be so deposited in Court shall be deposited in locked boxes, or in such other secure manner as shall satisfy the bank ; and before taking custody of a box the agent, or other officer acting on behalf of the bank, may at his discretion require an inspection of its contents in presence of the person depositing it. Cheques for lodgment of money are to be made payable to the Bank of England (Law Courts Branch), for the account of the Paymaster-General (and not to the paymaster personally). 30. In the Chancery Division a direction for a lodgment directed by an order, or in a lodgment schedule signed by a chief clerk (in the case of purchase-moneys or receivers' balances), shall be issued by the paymaster upon receipt of a copy of the lodgment schedule ; and a direction for a lodgment under the Trustee Act, 1893, shall be issued by him upon receipt of an office copy of the schedule mentioned in rule 41, or upon receipt of the request and certificate of the Commissioners of Inland Revenue mentioned in that rule. All funds lodged in Court to be placed to the .iccountof the paymaster. Manner of lodgment of funds in Chancery Division and particulars to be stated in request. 39. Money lodged in Court in the Chancery Division pursuant to the 69th section of the Lands Clauses Consolidation Act, 1845, in respect of lands in England and AVales, shall be placed in the books at the pay office to the credit of ex parte the promoters of the undertaking, in the matter of the special Act (citing it), and some words shall be added in each case briefly expressive of the nature of the disability to sell and convey, by reason of which the When money is lodged under Act 8 Vict. c. 18, s. 69, dis- ability to be stated. 718 Appendix E. money shall be so paid in, which particulars shall be stated in the request for the direction for the lodprmeut. Form No. 8. [Request for Lodgment in Chaneerij Division, referred to in Rule 30.] High Court of Justice. — Chancery Division. I. Request for Direction for Lodgment. Title of cause or matter v, 19 . A., Xo. Ledger credit ) ryp ^^^^ , ,,,.*•, to tchich lodged. \ L^^ ^^^® ^^ ^^^^^ *o cause, state "As above."] Further particulars (if any) required to be stated The paymaster is hereby requested to issue a direction to the bank to receive from the sum of ^6 for the ledger credit in the books of the pay office above specified. {Signature) [Note. — The above request should show the name of the party on whose behalf the money is paid in (see Sol. Jo. pp. 141, 282).] II. Paymaster's Direction for Lodgment. To the agent of the Bank of England (Law Courts Branch). Please receive the above-stated sum, and place it to the account of the Paymaster-General for the time being for and on behalf of the Supreme Court of Judicature, {Signature) (Date) 19 . III. Bank Certificate of Receipt. To the Assistant Paj'master-General, Bank of England, 19 . The above-stated sum has been this day received. (Signature) Form No. 9. [Request for Lodgment or Transfer of Securities in Chancery Division, referred to in Rule 30.] High Court of Justice. — Chancery Division. I, Request for Direction for Lodgment or Transfer of Securities. Title of cause or matter 19 . A., No. , ?■• 7 7 ; 7 ( [If same as title of cause, state "As above."] to u-hich Lodged.) ^ ' ■' Authority is hereby requested for the lodgment or transfer to the account of the Paymaster-General for and on behalf of the Supreme Court Fumh Bules, 1894. 719 Supreme Court of Judicature of the securities mentioned below, for the ledger credit in the books of the pay office above specified. To be lodged or transferred by Description and amount of securities. Date of order (if any) 19 . {SiguatHi'c) [See note to Form 8, supra. 1 II. Paymaster's Direction for Lodgment or Transfer. Authority is hereby given for the lodgment or transfer of the above - mentioned securities to the account of the Paymaster- General for the time being for and on behalf of the Supreme Court of Judicature. (Signature) (Date) 19 . III. Certificate of Lodgment or Transfer. Address , Date ,19 . It is hereby certified that in accordance with the above authority the securities herein mentioned have this day been lodged or transferred to the account of the Paymaster-General. (Signature) X.B. — Under the Supreme Court Funds Piules made in pursu- ance of the Acts of Parliament, the bank or other company in ■whose books the transfer herein authorised is made, is required to certify such transfer hereon, and to return this document to the Assistant Paymaster-General, Pioyal Courts of Justice, London. 720 APPENDIX F. TITLES TO ORIGINATING SUMMONSES OE PETITIONS UNDER THE LANDS CLAUSES CONSOLIDATION ACTS, 1845, 1860, AND 1869. I- 19 , ^\., No. . In the Matter of the Estate of G. W., deceased. Ex jxtrte the Railway Company. In the Matter of the Railway Act, 19 , the vendors,. John Smith and Robert Stiles, trustees of the estate of G. W., deceased, vendors without power of sale. And in the Matter of the Lands Clauses Acts, 1845, 1860, or 1869 {as the case man ^"')- II' 19 , J., No. . In the Matter of the Trusts of the Settlement made on the Marriage of John Jarvis and Sarah his wife. Ex parte the Metropolitan Board of "Works. In the Matter of the Metropolitan Street Improvement Act, 1883^ the vendors, John Smith and Robert Jones, trustees of the settlement of John Jarvis and Sarah his wife, without power of sale. And in the Matter of the Lands Clauses Consolidation Acts, 1845, 1860, and 1869. ™- 19 , T., No. . In the Matter of the Estate of William Thomas, an infant. Ex parte the Metropolitan Board of Works. In the Matter of the Metropolitan Street Improvement Act, 1883, the vendor, William Thomas, an infant. And in the Matter of the Lands Clauses Consolidation Acts, 1845, 1860, and 1869. I^'- 19 , W., No. . Ex parte the Rector of Woolwich, in the County of Kent. Ex parte the South Eastern Railway Company. In the Matter of the South Eastern Railway Act (Additional Powers), 1882, the vendor, the Rector of Woolwich, without power of sale. And in the ^Matter of the Lands Clauses Consolidation Acts, 1845, 1860, and 1869. [Note. — If the land taken belongs to a rector, vicar, or other corporate body, the summons must be entitled Ex parte the Rector, Yicar, or corporate body, as the case may be, and In the Matter of the Act or Acts.] 721: APPENDIX G, CROWN OFFICE RULES, 1886. Mandamus. 60. Application for a prerogative writ of mandamus shall, during the sittings, be made to a Divisional Court of the Queen's Bench Division hy motion for an order nisi; and in the vacation to a judge in chambers for a summons to show cause, upon its being showTi to the satisfaction of such judge that the matter be urgent. Provided that this rule shall not apply to any application for a writ of mandamus under 45 & 46 Yict. c. 50, s. 225. 61. Notice shall be given by the order Jiisi for a mandamus to every person who by the affidavits on which the order is moved shall appear to be interested in or likely to be affected by the pro- ceedings, and to any person who in the opinion of the Court or judge ought to have such notice. 62. The order nisi shall be served upon each person to whom notice is given by the order, as well as the party whom the order requires to show cause. 63. Any person, whether he has had notice or not, w^ho can make it appear to the Court or judge that he is affected by the proceeding for a writ of mandamus may show cause against the order nisi or summons, and shall be liable to costs in the discretion of the Court or a judge if the order should be made absolute, or the prosecutor obtain judgment. 64. The order absolute for a mandamus need not be served, but the costs of service of the order absolute may be allowed in the discretion of the taxing officer, where the writ is not issued. 65. If the writ of mandamus is directed to one person only the original must be personally served upon such person, but if the writ be directed to more than one, the original shall be shown to each one at the time of service, and a copy served on all but one, and the original delivered to such one. 66. When a writ of mandamus is directed to companies, cor- porations, justices, or public bodies, service shall be made upon such and so many persons as are competent to do the act required to be done, the original being delivered to one of such persons, except where by statute service on the clerk or some other officer is made sufficient service. 67. The Court or a judge may, if they or he shall think fit, order that any writ of mandamus shall be peremptory in the first instance. 68. Every writ of mandamus sball bear date on the day when it is issued, and shall be tested in the name of the Lord Chief Justice L.c. 46 722 Appendix G. of England. The "writ may be made returnable forthwith, or time may be allowed to return it, either with or without terms, as the Court thinks fit. A writ of mandamus shall be in the Form in the Appendix, No. 37, with such variations as circumstances may require. 69. Any person by law compellable to make any return to a writ of mandamus shall make his return to the first writ. 70. Where a point of law is raised in answer to a return or any other pleading in mandamus, and there is no issue of fact to be decided, the Court shall, on the argument of the point of law, give judgment for the successful party, without any motion or judgment being made or required. 71. Where under Rules 70 and 136 the applicant obtains judg- ment he shall be entitled forthwith to a peremptory writ of mandamus to enforce the command contained in the original w^it, and the judgment shall direct that a peremptory writ do issue. 72. No action or proceeding shall be commenced or prosecuted against any person in respect of anything done in obedience to a writ of mandamus issued by the Supreme Court or any judge thereof. 73. When it appears to the Court that the respondent claims no right or interest in the subject-matter of the application, or that his functions are merely ministerial, the return to the writ, and all subsequent proceedings down to judgment shall still be made and proceed in the name of the person to whom the writ is directed, and, if the Court thinks fit so to order, may be expressed to be made on behalf of the persons really interested therein. In that case the persons interested shall be permitted to frame the return and conduct the subsequent proceedings at their own expense; and if judgment is given for or against the applicant it shall likewise be given for or against the persons on whose behalf the return is expressed to be made ; and if judgment is given for them, they shall have the same remedies for enforcing it as the person to whom the writ is directed would have in other cases. 7-1. Where, under the last preceding rule, the return to a writ of mandamus is expressed to be made on behalf of some person other than the person to whom the writ is directed, the proceedings on the writ shall not abate by reason of the death, resignation or removal from office of that person, but they may be continued and carried on in his name ; and if a peremptory writ is awarded, it shall be directed to the successor in office or right of that person. 75. In any case of mandamus, in which a proceeding by way of interpleader may be proper, the provisions of Order 57 of the Eules of the Supreme Court, 1883 (Interpleader), shall be applicable, so far as the nature of the case will admit. 76. No order for the issuing of any writ of mandamus shall be granted, unless at the time of moving an affidavit be produced by which some person shall depose upon oath that such motion is made at his instance as prosecutor, and if the writ be granted, the name of such person shall be indorsed on the writ as the person at whose instance it was granted. 77. Every application for the costs of a mandamus shall, unless Croicn Office? Bales for Mandaimis. 728 the Court or a juclf:je shall otherwise order, be made before the fifth day of the sittings next after that in which the right to make such application accrued, and shall be upon notice of motion to be served eight days before the day named therein for moving. 78. The party moving for costs shall leave at the Crown Office Department a notice for the production in Court of all the affidavits filed in support of, and in opposition to, the original order. 79. Every application for a writ of mandamus to justices to enter continuances and hear an appeal shall be made within two calendar months after the first day of the sessions at which the refusal to hear took place, unless further time be allowed by the Court or a judge, or unless special circumstances appear by affidavit to account for the delay to the satisfaction of the Court. Okders in the Nature of Mandamus. 80. An application for an order in the nature of a mandamus to justices, or to a County Court judge, or to justices to state and sign a case, shall be by motion for an order nisi (in the same manner as is provided in Rule 60). 37. Writ of Mandamus. Victoria, by the grace of God, &c. To of greeting. Whereas by [Jiere recite Act of Parliament, or charter, if the act required to he done is founded on either one or the other']. And whereas we have been given to understand and are informed in the King's Bench Division of our High Court of Justice before us that [insert necessary inducement and averments]. And you the said were then and there required by [insert demand] but that you the said well knowing the premises, but not regard- ing your duty in that behalf then and there wholly neglected and refused to [insert refusal] nor have you or any of you at any time since in contempt of us and to the great damage and grievance of as we have been informed from their complaint made to us. Whereupon we, being willing that due and speedy justice should be done in the premises as it is reasonable, do com- mand you the said and every of you firmly enjoining you that you [insert comma)id] or that you show us cause to the contrary thereof, lest by your default the same complaint should be repeated to us and how you shall have executed this our writ make known to us in our said Court at the Royal Courts of Justice, London, forthwith then returning to us this our said writ, and this you are not to omit. Witness, &c. [To he indorsed.] By Order of Court [or of Mr. Justice ]. At the instance of This writ was issued by, &c. [Note. — A peremptory icrit of mandamus must he in the same form, omitting the words "or that you show us cause to the contrary thereof."] 4(3—2 724 Apjjendix G. 38. Ileturn to Writ of Mandamus. The return man either he indorsed on the hack of the original writ, or engrossed on a separate jmrehment schedule. When indorsed on the hack of the original writ. The answer of [the 2)arties to ichom the u-rit is directed] to this writ. We, the, &c. [the defendants], to whom this writ is directed, do most humbly certify and return to our Sovereign Lord the King at the time and place in this writ mentioned, that we have, Ov:c. [u-lioi the return is an obedience to tliis uiit, the words of the vtandatorif ixirtof the icrit should he recapitulated in tliepiast instead of the future tense], as by the said writ we are commanded. [To he signed hy the parties making the return, or a sufficient number to form a quorum, unless they be a corporate body, in which case it is sufficient to attach the corporate seed.] When the return is engrossed on a separate schedide. Indorse the original writ [or a copy served] thus : The return of to this writ [or if the return is obedience, say, the execution of this writ'] appears in the schedule hereunto annexed. The answer of [To be signed or sealed as above.] Action of Mandamus. Order 53 of the Fades of the Supreme Court. 1. The plaintiff in any action in which he shall claim a mandamus to command the defendant to fulfil any duty, in the fulfilment of which the i>laintifi" is personally interested, shall indorse such claim upon the writ of summons. 2. The indorsement shall be in the form given in sect. 4 of Appendix A., Part III. This is the form : — The plaintiff's claim is, for, &c. , and for a mandamus commanding the defendant to, &c. 8. If judgment be given for the plaintiff, the Court or judge may by the judgment command the defendant either forthwith, or on the expiration of such time and upon such terms as may appear to the Court or a judge to be just, to perform the duty in question. The Court or a judge may also extend the time for the performance of the duty. 4. No writ of mandamus shall hereafter be issued in an action ; but a mandamus shall be by judgment or order, which shall have the same effect as a writ of mandamus formerly had. APPENDIX H. SPECIMENS OF VALUATIONS MADE FOR THE PURPOSE OF ASSESSING COMPENSATION. PAGE 1. Valuation of Trade Premises held on a long lease . . . 726 2. Valuation of Trade Premises held on a short lease . . . 726 3. Valuation of a Lessee's Interest in Land upon which he was about to erect Shops and Houses ...... 727 4. Valuation of Premises which have depreciated in value . . 727 5. Valuation of Freehold Land on the bank of a river, but for which there was no demand ........ 728 6. Valuation of Freehold Land taken out of an Estate with injurious affection to remainder ...... 728 7. Valuation of Freehold Land as Clear Site with an Alternative Valuation on basis of Owner building Shops upon it . . 728 8. Valuation of Agricultural Land taken for a Railway with injurious affection to adjoining land ...... 729 9. Valuation of Freehold Houses let to weekly tenants . . . 729 10. Valuation of Business Premises carried on in three houses held under leases for different terms ..... 730 11. Valuation of Premises where well-known trade was carried on . 731 12. Valuation of a Pawnbroker's Business where Premises were required for a Street Improvement ...... 731 13. Valuation of a Theatre 732 14. Valuation of Premises used partly for Business and partly for Residential Purposes ........ 732 15. Valuation of a Freehold "Wharf held b}- Executors into whose possession it would pass on the death of the tenant for life . 733 16. Valuation of Front Portion of a proposed Building taken for widening a street ......... 734 17. Valuation similar to No. 16 . . . . . . . . 735 18. Valuation of Land taken by a Gas and "Water Company with consequential damage to the I'emainder of the Estate . . 735 19. Valuation of Water Rights taken by a Corporation from a Landowner .......... 736 20. Valuation of a tied Public-house ....... 737 21. Valuation of a Public-house (free lease) 738 22. Valuation of a Brewer's Leasehold Interest. .... 739 23. Valuation of a Public-house where mortgagees are in possession 740 24. Valuation of Premises taken for a Street Improvement with Allowance for Betterment ....... 741 726 Appendix H. 1. Valuation of Trade Premises held on a 99 years lease, of which 95 years remain iinexpired, at a ground rent of ^62 10s. Od, £ s. d. Kental value 220 Deduct — £ s. d. Ground rent . . . 62 10 Insurance, say . . . 1 10 Repairs, 10 per cent. . 22 86 Leaving a profit rental of . . 134 This capitalised for an unexpired term of 95 years at 6 per cent, gives years' j)urchase .... 16'6 Add 10 per cent, for forced sale Disturbance of trade, 1 year's profits (less profit rental) .... Furniture, fixtures, Sec. Damage to machinery and plant . Loss by removal of stock Total compensation . 2. Valuation of Trade Premises held under a lease with 7i years unexpired. Annual rental value .... Rent payable under lease . Profit rental 150 Capitalised on the 6 per cent, table for the unexpired term of 7^ years = years' purchase 5-90, say . / ' 6 2,224 222 8 2,446 8 1,610 435 500 250 £5,241 8 lease with 7i 3 • £ 650 500 900 Add 10 per cent, for compulsory sale ... 90 990 Add for fixtures ....... 50 Add two years' nett profits as compensation for disturbance — £ Average annual profit . . 1,172 Less profit rental . . . 150 Twice 1,022 2,044 Total compensation . . . i'3,084 I ^(iluations. Til 3. Valuation of a Lessee's Interest in Land held on a lease which had 75 years to run, and upon which the lessee was about to erect shops and houses, the plans of which had already been prepared. Estimated rents — £ Corner shop .... 180 Small shop .... 85 Three shops at ii95 . 285 Large house .... 80 Six smaller bouses at i'40 240 870 Less ground rent 35 Balance rent Held for 75 years, on 6 per cent, tables = years' purchase . Deduct — Prime cost of building four shops Prime cost of altering corner shop Prime cost of making up road and altering large bouse Prime cost of building six bouses Literest on i.'6,600 for one year at 5 per cent. ..... Surveyor's and other fees and charges Add 10 per cent, for forced sale Total compensation . . tables 835 16i 13,777 ^•3,200 250 150 3,000 330 250 7,180 ^ , 6,597 659 • £7,256 4. Valuation of Premises which have depreciated in value. The premises were held under a lease for 40 years, at a rent of a peppercorn for the first year, £120 for the next three years, and £150 a year for the remainder of the term. Rental value ..... Therefore no beneficial value in lease. Consideration for assigning lease and for on premises ..... Fixtures and fittings Total compensation £ . 80 outlay 100 35 £135 728 Appendix H. 5. Valuation of a Piece of Freehold Land on the banks of a river but for which there was no demand. The area was 1,200 feet super. o Ground rent value at id. per ft., or per annum . 20 Freehold, capitalised at, years' purchase . . 20 Giving a ground rental value of . . . . 400 For compulsory sale, 10 per cent. ... 40 Total compensation ..... £4:40 N.B. — If the land had had no river facilities the value would have been 2d. per ft. or i^lO per annum (ground rent). 6. Valuation of Freehold Land in the East End of London, taken for the purpose of a Board School. The land taken is out of the middle of an estate, and there is in consequence a claim for damage for injurious affection of the residue. j. 39,095 ft. super, at Id. per ft. — ground rent . 1,140 28i- years' purchase (3i per cent, when secured) 28-57 32,570 Add 10 per cent, for compulsory sale . . 3,257 35,827 Injurious affection to the residue of the property 5,000 Total compensation .... £40,827 7. Valuation of Freehold Land as a Clear Site with an Alternative Valuation on the basis of the owner building shops on the site. £ . Frontage 41 ft. at 25s. per ft., ground rent. . 52 Years' purchase 28 1,456 Deduct one year peppercorn .... 52 1,404 Add 10 per cent 140 Total valuation ..... i;'l,544 Alteiiiativc Valuation. ^ Two shops, rental value £d5 each . . . 190 Capitalised on 5 per cent, tables = years' purchase 20 3,800 Deduct total cost of building .... 2,250 _ Total compensation . . . . ii;l,550 " Valuations. 729 8. Valuation of Agricultural Land near the seashore, taken by a railway company for the purpose of constructing a railway to connect two fashionable watering places. £ ■ Section 1.— 31- acres at £300 per acre . . 1,050 The adjacent land (41^ acres) depreciated 20 per cent., or i'60 an acre, by the coming of the railway 2,500 Section 2. — 3| acres at £600 per acre . . 1,950 Depreciation of adjoining 7 acres, 50 per cent. 2,500 Total for land taken 8,000 Add 10 per cent 800 8,800 Compensation for timber .... 50 Total compensation .... £8,850 9. Valuation of Three Freehold Houses let to "Weekly Tenants. The total area covered by the three houses was 1,457 ft. super. £ s. d. 1,457 ft. super, at Is. per ft. ground rent per annum . . . . • • 72 17 Value, years' purchase .... 25 Total 1,821 The rents are in respect of — £ s. d. No. 1 — 19s. 9d. per week = per annum . . . 51 7 No. 2. — 19s. 3(/. per week = per annum . . . 50 1 No. 3. — 19s. Qd. per week = per annum . . . 50 1 151 9 Deduct, to cover rates and taxes, repairs, insurance, losses, &c., 33^ per cent, per annum . . . 50 9 Deduct yearly ground value Value, years' purchase . Total compensation 101 72 17 28 3 10 '^81 10 • . £2,102 10 730 Ajipendix H, 10. Valuation of Premises upon which the business of a provision dealer was carried on. The premises consisted of three adjoining houses, held under different leases and for different periods. A. Held on lease with 9 years unexpired at a rental of £140 per annum. £ £ Rental value worth , . . 200 Held at 140 Net profit rental ..... 60 For 9 years on 6 per cent, table is worth 6'8 years' purchase ..... 6*8 B. Held for a similar term at a rental of ^£75 per annum for 2 years, and ^£80 per annum thereafter. Eental value ..... £90 Held at 75 Net profit rental ... 15 For 2 years on 6 per cent, table . 1.83 Rental value. . . . £90 Rent after 2 years. . . 80 Net profit rental . . 10 At 6 per cent. 9 years = 6'80 y. p. 2 years = 1*83 y. p. 408 27 4-97 say, 5 y. p. . . 50 485 Add 10 per cent 48 533 C. Yearly tenancy at £52. One year's rental . . . . . . 52 585 Disturbance and loss of trade, 2 years' pur- chase of net profits (less profit rental) . . 2,000 Loss on forced sale of stock, 25 per cent. . 250 Fixtures as per valuation ..... 75 Loss on utensils and removal of furniture . . 100 Total compensation ..... £3,010 'Vahidttons. 731 11. Valuation of the Premises of a Well-known Maker of Billiard Tables, taken for a Street Improvement, the premises heing held on a lease having 13 years unexpired. £ S. d. Estimated rental value on lease, per annum ....•• 530 Eent payable under lease . . . 265 Estimated profit rental, per annum 285 For 13 years unexpired, to pay 6 per cent. = years' purchase . . . 8'853 Making the total value of the leases . 2,523 2 Add 10 per cent, for compulsory pur- chase 252 6 2,775 8 Add, for fixtures, as valued . . 57-1: Add, for cost of removal . . . 200 Business, very well known, can be removed, without much loss to trade. This would be well covered by one year's profits, calculated on the average net profit of the last three years. . . .£3,823 From which must be deducted the estimated improved annual rental . . . 285 3,538 Total compensation . . . £7,087 8 12. Valuation of a Pawnbroker's Shop taken for a Street Improve- ment, where the premises were held under a lease for 25 years, of which 22^ remained unexpired. Kental value, per annum .... 450 Eent paid under lease ..... 400 Profit rental 50 For 22^ years on 6 per cent, table = year's purchase . . . . . • • I'^'l 605 Add 10 per cent, for compulsory sale . . 60 665 Fixtures as valued ..... 490 Carried forward . . 1,155 732 Jppeiidix H. £ Brought forward . . 1,155 Loss on Stock — Sale stock, valued at i'10,000. Loss on this, say 10 per cent, to include cost of removal 1,000 Pledge stock — no loss on sale, but cost of removal, say ...... 100 Compensation for disturbance, one year's profit, average annual profit for the last three years . . ^63,547 From which deduct profit rental . 50 say, 3,500 Total compensation .... £5,755 13. Valuation of a Theatre held on a 21 years' lease at £6,000 a year, of which 18^ remain unexpired. £ s. d. Average rental (including rent of bars, &c.), obtained by the claimant for 2J years 7,889 9 10 Deduct annual disbursements — n 7 ± s. a. Kental .... 6,000 Insurance premium . 157 10 Eepairs, including external painting every third year, internal painting every seventh year, gild- ing, upholstering, &c. . 300 6,457 10 (living an average annual profit of, say . ^B 1,442 Having regard to the possibility of the authorities requiring an outlay of a large sum upon the theatre, and having regard to the theatre being without a tenant for part of the year, the value of the claimant's interest is equal to four years' purchase of their profits, viz. . £5,768 14. Valuation of Premises used partly for business and partly for residential purposes. Basement, ground floor, first floor and second floor were used for business purposes, and the third and fourth floors for residential purposes. The whole premises were held under a lease for 21 years, having about 8 years uu expired. The claimant also held a warehouse in another building on a tenancy having about 3^ years unexpired. This warehouse was used in connection with the Valuations. 733 business carried on at the premises taken. The business done was obtained mainly by a Uirge expenditure on advertisements. Kental value of third and fourth floors 87 Rental value of remainder of premises 352 439 Less rent under lease ..... 285 Profit rental 154 Capitalised on the 6 per cent, table = years' purchase ...... 6"25 9(32 Ten per cent, for compulsory sale . . 9(> 1,058 For furniture, fixtures, &c. . . . 600 For trouble and loss caused by temporary dis- turbance of business by removal, one year's nett profits less profit rental . . . 1,516 To part of last year's expenditure on adver- tising rendered unproductive by removal . 500 For loss of rent on the unexpired term of the tenancy of the warehouse held with the premises . . . • • • 612 Cost of removal of stock .... 250 [The stock could be sold equally well any- where.] Cost of removal of the furniture from the residential floors 25 Total compensation .... .£-1,561 15. Valuation of a Wharf (freehold) held by executors in whose hands the property would pass at the death of the tenant for life. The latter paid them £10 a year rent during his lifetime. The executors would thus he entitled to compensation under three heads : n A. The value of the £10 a year that they would receive during the lifetime, of the tenant for life. As it is well secured, it should be capitalised on the 4 per cent, tables. If the tenant for life is 47, his expectancy of life is 22 years, £10 at 4 per cent, for 22 years = 14*45, or say 14J years' purchase . 145 Carried forAvard . . £145 734 Appendix H. £ Brought forward . . 145 B. The freehold property is worth i;'l,870. The reversion to this sum in 22 years on the 5 per cent, tables is worth 34 per cent., or . 635 780 Add 10 per cent. ..... 78 858 C. Damage by severance to the remainder of the estate ....... 150 Total compensation .... <£ 1,008 16. "Valuation of Front Portion of a proposed Building taken under the Metropolitan Paving Act, 1817, from a lessee (under a building agreement) for the purpose of widening a street. Total land to be covered by building = 10,810 ft. super. Held for 80 years at ^66,000 per ann. — lis. Id. per ft. Land to be taken . . . . = 1,335 ft. Carpet areas — £ Three shops with basement — Loss of carpet area of 330 ft. super, at 30s. a foot , . 495 Corner ground floor with basement — Loss of carpet area of 256 ft. super, at 35s. a foot . 448 Loss of basement under shops and entrance hall, 145 ft. super, at 5s. . . . . 36 Loss of basement under entrance hall, 144 It. super, at 2.s'. ...... 14 First floor — Loss of carpet area 712 ft. at 10s Second floor — Ditto ditto Third floor — Ditto ditto Fourth floor — Ditto ditto Fifth floor— Ditto ditto Total loss of rent Deduct — For rates, voids. Sec, 25 per cent. . Lift, per annum .... Ground rent, 1,335 ft. at lis. This on 5 percent, tables is worth, years' purchase Allow — Saving in building . . . . Time for building and letting, say 2 years xVdd 10 per cent. Total compensation 993 tlOs. . 356 9s. . 320 7s. M. 267 Q,s. . 213 4s. . 142 , 2,291 £ . 572 . 100 . 734 1,406 885 urchase 19-59 17,337 £ 1,110 1,770 2,880 14,457 • 1,445 . £15,902 Valuations. 735 17. A Valuation similar to the preceding. Total amount of land, 2,850 ft. super. Held on a lease for 36 years at £12 per annum. Land to be taken = 220 ft. super. Carpet areas — £ Ground floor — Loss of carpet area 108 ft. super. Basement — Loss of carpet area 147 ft. super. at 20s. on ground floor .... 108 First floor — Loss of carpet area 148 ft. at 7-s. 6(/. 55 Second floor — Ditto ditto 6s. 6d. 48 Third floor— Ditto ditto 5s. Od. 37 Fourth floor— Ditto ditto 3s. Qd. 25 Fifth floor— Ditto ditto 2s. Qd. 18 Total loss of rent 291 Deduct — i' For rates, voids, &c., 25 per cent. 73 Lift . 25 98 Net loss of rent 193 This, for 36 years on the 5 per cent. tables ; IS worth years' purchase . • • 16-54 Deduct— £ Saving in building ..... 175 Time for building and letting, say 2 years 386 3,192 561 2,631 Add 10 per cent. ..... 263 Total compensation .... £2,894 18. Valuation of Land taken "by a Gas and Water Company, and of the Consequential Damage to the remainder of the estate. £ s. d. £ s. d. Two and a half acres of land, estimated worth £500 per acre, £1,250 ; deferred 5 years on the 5 per cent, tables, years' purchase "784 . . 978 15 Add, rent of half an acre, at £5 an acre till March, 1906 (4 years) . . 10 988 15 Add 10 per cent. . . 98 15 Carried forward . 1,087 10 736 Ajypendix H. £ s. d. £ s. d. Brought forward . 1,087 10 Consequential damage and injurious affection : 1^ acres at i;750 per acre, i'1,125 ; deferred 5 years on the 5 per cent, tables, years' purchase '784, £880 ; depreciated 25 per cent. . . . 220 Two houses let at .£40 each per annum, £80 ; deduct for repairs, in- surance, &c., 10 per cent., leaving £72 ; de- preciated 25 per cent., £18 ; capitalised on the 5 per cent, tables, years' purchase, 20 , . 360 2 r. 20 p., worth £500 per acre, or £312 10-5. ; de- ferred 5 years on the 5 per cent, tables, years' purchase '784, £244 13.S. 9d. ; depreciated 50 per cent. . . . 122 3^ acres at £400 per acre, £1,400; deferred 7 years on the 5 per cent, tables, years' purchase '711, £994; depreciated 20 per cent 200 General depreciation of re- mainder of estate, 47 acres at £10 an acre, equals . . . . 470 1,372 Total compensation . . . £2,459 10 19. Valuation of Water Rights taken under a Special Act by a Corporation from a Landowner. Average daily supply, £ ,s'. d. £ s. d. 240,000 gallons, of which one-seventh was reserved to the land- owner under the Special Act = 205,000 gallons at Id. per 1,000 gallons per annum . . . 311 15 At years' purchase . . 25 Carried forward 7,793 15 Valiiatiou>i. 737 Brought forward . Land — 1 r. 16 p., and timber Easement — 56 chains at SO^'. per chain ...... Add 10 per cent, for compulsory sale Consequential damage and damage for injuriously affecting — £ s. d. Mill, rendered valueless by reason of abstraction of water, annual value 35 10 At years' purchase . 33^ 10 acres, water meadow, depreciation in letting value by reason of not being able to irrigate, at 40s. per acre, equals . 20 137 acres, depreciation in letting value by reason of running stream aftecting the whole farm, at 3.s. per acre, per annum, equals . . . . 47 19 Depreciation in letting value by right of perambulation over 45 acres, at 2s. Qd. per acre, equals . . 5 12 6 73 11 6 At years' purchase . . 33^ £ s. 7,793 15 35 140 d. 7,968 15 796 16 8,765 11 1,183 6 8 2,452 10 Total compensation . . . ^'12,401 7 8 [Add for any other loss, such as loss of shooting rights.] 20. Valuation of Public-house (tied) in one of the principal thoroughfares. Tcnanfs Leasehold Claim. Lease about 18 years at a rent of £210 per annum. L.c. 47 738 Appendix H. Rental Value. Estimated rental value per annum . Deduct rent payable Profit rent .... 18 years' lease on 5 per cent, table 10 per cent, compulsory sale Goodwill in Trade, £ s. d. 310 210 100 iify.p. 1,175 117 10 £1,292 10 Average net profits after deducting a profit rent per annum ..... £ d. 1,488 4 7 5 y. p. Summary. Rental value . Goodwill in trade Total compensation £7,441 2 11 £ s. d. 1,292 10 7,441 2 11 4*8,733 12 11 21. Valuation of a Public-house (free lease) in one of the finest thoroughfares in London. Tenant's free lease, about 65 years at a rent of £275 per annum. Rental Value. Buildinq. ^ s- d. 63,500 cub. ft. at Is. Qd. per ft. ^ P^r cent, on build Is. Qd. £4,762 10 Land. 1,090 sq. ft. at 6.S. per ft. 6s. £327 238 2 6 327 nig Land Rental value Less rent payable Profit rental 65 years on 4 per cent, table, y. p 6,672 17 6 10 per cent, com- pulsory sale . 667 5 9 565 275 2 6 290 2 6 23 £7.340 3 3 Valuations. 739 Goodicill in Trade. £ s. d. Average net profits per annum for 3 years after deducting rental value . . 1,G98 8 4 12 y. p. £20,381 Snm))iayij. £ s. d. Eental value 7,340 3 3 Goodwill 20,381 Total compensation . . . iJ27,721 3 3 22. Valuation of Brewer's Leasehold Claim. Present value of reversionary lease of about 7 years deferred for 33 years. Rent of £300 per annum. Goodicill in Trade. Net Profits. £ s. d. £ ^ ^j Average net profits per ann. 1,433 1899—1,846 13 4 -^ars' purchase . . 3 1900-1,377 2 11 1901—1,075 6 7 £4,zyj u u 3)4 299 2 10 Deferred for 33 years on f?-, ' .Q.3 — rTTT 5 per cent, table. [Pre- x.i.,^6a u 11 sentvalueof£l.=4.s.^ £859 16 Tie of Trade. Barrels. Average number of barrels 1899—1,108 per annum . . . 902 at lO.s. each. 1900— 878 10.9. 1901— 721 £451 3 )2,707 8 y. p. 902 £3,608 Snwman/. £ s. d. Goodwill in trade 859 16 Tie of trade 3,608 Total compensation . . . £4,467 16 47—2 740 Appendix H. 23. Valuation of a Public-house where mortgagees are in possession. Lease about 55^ years to run at a rack rent of £200 per annum, also a farm rent of £2 7s. 6d. per annum. Goodwill in Trade. Estimated takings per month (4 weeks) Payments per month Months .... Per annum Add discounts per annum Gross profit per annum . Less working expenses per annum Net profit per annum Tf liolesale Trade. Barrels per annum, sav 390 at 10s. profit per barrel. " lO.s. £ s. 201 14 117 d. 6 8 84 13 10 13 1,100 19 108 18 10 7 1,209 18 756 3 5 9 453 14 8 lly.p ;4,991 1 4 £195 7 Y. p. £ . 4,991 . 1,365 s. 1 £1,365 Goodwill in trade . Wholesale trade Sumiiiary. lation d. 4 Total compens . £6,356 1 4 24. Valuation of premises taken for a street improvement by the London County Coiuicil with allowance for Betterment. The premises were occupied by a tailor and bootmaker, the upper part being used for residential purposes. They were held upon a lease for twenty-eightyears from June 25th, 1883, at a rent of £610 per annum for the first seven years ; £630 per annum for the second seven years ; £650 per annum for the third seven years ; and £700 per annum for the remainder of the term. The lessee was entitled to take into consideration the enhanced rental value which the premises would have acquired if the buildings in front had been pulled down and the site thrown into the new street in accordance with the County Council's (Improvement) Act, 1897. The premises. Wdualioii.-i. 741 were included iii the betterment area defined by that Act, the betterment rate being 3 per cent, on balf the net improved value. The premises were taken by the London County Council in 1901. £ £ Estimated rental value till Midsummer, 1904, when the improvement under the 1897 Act would have been com- pleted 900 Less rent reserved under lease . • 650 250 Capitalised for 3 years on the 6 per cent, table, years' purchase , . 2' 67 Estimated rental value from Mid- summer, 1904, till termination of lease at Midsummer, 1911, per ann. 1,226 £ Less rent reserved under lease . 700 Less betterment rate (a) . . 192 892 334 Capitalised 7 years and deferred 3 years on the 6 per cent, table, years' purchase . . . . . 4*7 667 1,569 2,236 Compensation for forced sale, 10 per cent. . 223 2,459 Loss on forced sale of stock, say 33 per cent, on the value of the tailor's stock, and 25 per cent, on the value of the bootmaker's stock . 1,121 For cost of removal and possible loss on planned furniture ....... 100 Fixtures according to valuation . . . 706 Compensation for loss of profit caused by re- moval, being twice the average annual profit of the last three j-ears : £ Average annual profit . . .1,739 Less rent for part of premises used for trade purposes £100 Eates . . . .193 893 Twice 846 = 1,692 Total compensation . . £6,078 {(i) For calciilation of bettermeut rate see next page. 742 Appendix H. Betterment Rate — how calculated. Estimated improved rental value of freehold £ ^'1,226 per annum, at 25 years' purchase . 30,650 Less initial valuation of premises under 1897 Act 17,775 Net improved value .... £12,875 Three per cent, on half nett improved value (£6,437) = £192. APPENDIX I. VALUATION TABLES. Table I. — For the Purchasing of Leases, Estates, or Annuities, at THE Bates of 2|, 2|, 3i and 4i per Cent. Interest. 743 Yrs. Pr. Yrs. Pr. Yrs. Pr. Yrs. Pr. Yrs. Pr. Yrs. Pr. Yrs. Pr. Yrs. Pr. Yeais. 2i per 2i por 3i per 4k per Years. 2iper 2| per 3i per ih per Cent. Cent. Cent. Cent. Cent. Cent. Cent. Cent. 1 •976 -973 -966 •957 36 23-556 22-670 20-290 17-666 2 1-927 1-9-20 1-900 1-873 37 23^957 23-036 i 20-571 17-862 3 2-856 2-842 2-802 2-749 38 24-349 23-393 •20-841 18-050 4 3-762 3-739 3-673 3-588 39 4-730 23-740 21-103 18-230 5 4-646 4-613 4-515 4-390 40 25-103 24-078 21-355 18-402 6 5-508 5-462 5-329 5-158 41 25-466 24-407 21-599 18-566 7 6-319 6-289 6-115 5-893 42 25-821 24-7-27 21-835 18-7-24 8 7-170 7-094 6-874 6^596 43 26-166 25-038 22-063 18-874 9 7-971 7-878 7-608 7-269 44 •26-504 25-342 22-283 19-018 10 8-752 8-640 8-317 7-913 45 26-833 25-636 22-495 19-156 11 9-514 9-382 9-001 8-529 46 27-154 25-924 22-701 19-288 12 10-258 10-104 9-663 9-116 47 27-467 26-203 22-899 19-415 13 10-983 10-807 10-303 9-683 48 27-773 26-475 23-091 19-536 14 11-601 11-491 10-921 10-223 49 28-071 •26-740 23-277 19-651 15 12-381 12-156 11-517 10-740 50 28-362 26-997 -23-456 19-762 16 13-055 12-805 12-094 11-234 51 28-646 27-248 23-6-29 19-868 17 13-712 13-435 12-651 11-707 52 28-9-23 27-491 23-796 19-969 18 14-353 14-049 13190 12-160 53 •29^193 27-7-29 23-957 20-066 19 14-979 14-646 13-710 12-593 54 •29^457 •27-960 24-133 •20-159 20 15-589 15-227 14-212 13-008 55 •29^714 •28^185 24-264 •20-248 21 16-185 15-793 14-698 13-405 56 -29-965 28-404 24-410 -20-333 22 16-765 16-344 15-167 13-784 57 30-210 •28-617 24-550 •20-414 23 17-332 16-879 15-620 14-148 58 30-448 28-825 24-686 20-492 24 17-885 17-401 16-058 14-495 59 30-691 29-026 •24-819 20-567 25 18-4'24 17-908 16-482 14-828 60 30-909 •29-2-23 •24-945 •20-638 26 18-951 18-402 16-890 15-147 65 31-965 30-1-28 25-518 20-951 27 19-464 18-883 17-250 15-451 70 32-898 30-919 26-000 21-202 28 19-965 : 19-351 17-667 15-743 75 33-723 31-610 26-407 21-404 29 20-454 i 19-806 i 18-036 16-022 80 34-452 32-213 26-749 I 21-565 30 20-930 •20-250 18-392 16-289 85 35-096 32-739 27-037 21-695 31 21-395 20-681 18-736 16-544 90 35-666 33-199 ■27-279 21-799 32 21-849 21-100 19-069 16-789 95 36-169 33-600 27-484 : 21-833 33 ■22-292 21-509 19-390 17-023 100 36-614 33-951 27-655 21-950 34 22-724 21-906 19-701 17-247 Perp. 40-000 36-364 28-571 * •22-222 35 23-145 22-293 20-001 ; 17-461 1 7U Appendix I. Table II. — For the Pltrchasing of Leases, Estates, or Annuities, at THE Eates of 3, 4, 5, 6, 7, 8, 9, and 10 per Cent. Interest. Yrs. Pr. Yrs. Pr. Yrs. Pr. Yrs. Pr. Yrs. Pr. Yr.s. Pr. Yrs. Pr. Yrs. Pr. Years. 3 per 4 per 5 per 6 per 7 per 8 per 9 per 10 per Cent. Cent, Cent. Cent. Cent. •935 Cent. Cent. Cent. 1 •971 -962 •952 -943 •926 •917 •909 2 1-913 1-886 1-859 1-833 1^808 1-783 1-759 1-736 3 2-829 2-775 2-723 2-673 2-624 2-577 2-531 2-487 4 3-717 3-630 3-546 3-465 3-387 3-312 3-240 3-170 5 4-580 4-452 4-329 4-212 4-100 3-993 3-890 3-791 6 5-417 5-242 5-076 4-917 4-767 4-623 4-486 4-355 7 6-230 6-002 5^786 5-582 5-389 5-206 5-033 4-868 8 7-020 6-733 6-463 6-210 5-971 5-747 5-535 5-335 9 7-786 7-435 7-108 6-802 6-515 6-247 5-995 5-759 1 10 8-530 8-111 7-722 7-360 7-024 6-710 6-418 6-145 1 11 9-253 8-760 8-306 7-887 7-499 7-139 6-805 6-495 12 9-954 9-385 8-863 8-384 7-943 7-536 7-161 6-814 13 10-635 9-986 9-394 8-853 8-358 7-904 7-487 7-103 14 11-296 10-.'363 9-899 9-295 8-745 8-244 7-786 7-367 15 11-938 11-118 10-380 9-712 9-108 8-559 8-061 7-606 16 12-561 11-652 10-838 10-106 9-447 8-851 8-313 7-824 17 13-166 12-166 11-274 10-477 9-763 9-122 8-544 8-022 18 13-754 12-659 11-690 10-828 10-059 9-372 8-756 8-201 19 14-324 13-134 12-085 11-158 10-336 9-604 8-950 8-365 20 14-877 13-590 12-462 11-470 10-594 9-818 9129 8-514 21 15-415 14-029 12-821 11-764 10-836 10-017 9-292 8-649 22 15-937 14-451 13-163 12-042 11-061 10-201 9-442 8-772 23 16-444 14-857 13-489 12-303 11-272 10-371 9-580 8-883 24 16-936 15-247 13-799 12-550 11-469 10-529 9-707 8-985 25 17-413 15-622 14-094 12-783 11-654 10-675 9-823 9-077 26 17-877 15-983 14-375 13-003 11-826 10-810 9-9-29 9-161 27 18-327 16-330 14-643 13-211 11-987 10-935 10-027 9-237 28 18-764 16-663 14-898 13-406 12-137 11-051 10-116 9-307 29 19-188 16-984 15-141 13-591 12-278 11-158 10-198 9-370 30 19-600 17-292 15-372 13-765 12-409 11-258 10-274 9-427 31 20-000 17-588 15-593 13-9'29 12-532 11-350 10-343 9-479 32 20-389 17-874 15-803 14-084 12-647 11-435 10-406 9-526 33 20-766 18-148 16-003 14-230 12-754 11-514 10-464 9-569 34 21-132 18-411 16-193 14-368 12-854 11-587 10-518 9-609 35 21-487 18-665 16-374 14-498 12-948 11-655 10-567 9-644 36 21-832 18-908 16-547 14-621 13-035 11-717 10-612 9-677 37 22-167 19-143 16-711 14-737 13-117 11-775 10-653 9-706 38 22-492 19-368 16-868 14-846 13-193 11-829 10-691 9-733 39 22-808 19-584 17-017 14-949 13-265 11^879 10-726 9-757 40 23-115 19-793 17-159 15-046 13-332 11-925 10-757 9-779 41 23-412 19-993 17-294 15-138 13-394 11-967 10-787 9-799 42 23-701 20-186 17-423 15-2-25 13-452 12-007 10-813 9-817 43 23-982 20-371 17-546 15-306 13-507 12-043 10-838 9-834 44 24-254 20-549 17-663 15-383 13-558 12-077 10-861 9-849 45 24-519 20-720 17-774 15-456 13-606 12-108 10-881 9-863 46 24-775 20-885 17-880 15-524 13-650 12-137 10-900 9-875 47 25-025 21-043 17-981 15-589 13-692 12-164 10-918 9-887 48 25-267 21-195 18-077 15-650 13-730 12-189 10-934 9-897 49 25-502 21-341 18-169 15-708 13-767 12-212 10-948 9-906 50 25-730 21-482 18-256 15-762 13-801 12-233 10-962 9-915 51 25-951 21-617 18-339 15-813 13-832 12-253 10-974 9-921 52 26-166 21-748 18-418 15-861 13-862 12-272 10-985 9-930 1 53 26-375 21-873 18-493 , 15-907 13-890 12-288 10-996 9-936 54 26-578 21-993 18-565 15-950 13-916 12-304 11-005 9-942 55 26-774 22-109 18-633 15-991 13-940 12-319 11-014 9-947 56 26-965 22-220 18-699 16029 13-968 12^332 11-022 9-952 VitUuition Tahh's. 746 Table II. — continued. i Yrs. Pr. Yrs. Pr. Yi-s. Pr. Yrs. Pr. Yrs. Pr. Yrs. Pr. Yi-s. Pr. Yrs. Pr. Years. 3per 4 per 5 per 6 per " per S per 9 per 10 per Cent. Cent. Cent. Cent. Cent. Cent. Cent. Cent. 57 27-151 22-327 18-761 16-065 13-984 12-344 11-029 9-956 58 27-381 22-430 18-820 16099 14-003 12-356 11-036 9-960 59 27-506 22-528 18-876 16-131 14-0-2-2 12-367 11-042 9-964 60 27-676 22-6-23 18-929 16-161 14-089 12-877 11-048 9-967 65 28-458 23-047 19-161 16-289 14-110 12-416 11-070 9-980 70 •29-123 23-395 19-348 16-385 14-160 12-443 11-084 9-987 75 29-702 28-680 19-485 16-456 14-196 12-461 11-094 9-992 80 30-201 •23-915 19-596 16-509 14-222 12-474 11-100 9-995 85 30-631 24-109 19-684 16-549 14-240 12-482 11-104 9-997 90 31-002 •24-267 19-752 16-579 14-253 12-488 11-106 ' 9-998 95 31-828 24-398 19-806 16-601 14-268 12-492 11-108 9-999 100 31-599 24-505 19-848 16-618 14-269 12-494 11-109 9-999 Perp. 33-338 25-000 20-000 16-667 14-286 12-500 11-111 1 1 10-000 1 Table III. — Showing the present Y.\lue of the EevePvSion of .\ Per- petuity AFTER ANY GIVEN TeRM NOT EXCEEDING 60 YeARS. After Yrs. Pr. Yrs. Pr. Yrs. Pr. Yrs. Pr. these 3 per 4 per 5 per 1 6 per Years. Cent. Cent. Cent. 1 Cent. 1 32-362 32 24-038 24 19-048 : 19 15-723 15 2 31-420 31 28-114 23 18-141 18 1 14-833 14 3 30-505 1 30 22-225 22 17-277 17 ! 13-994 14 4 29-616 29 21-370 1 21 16-454 16 13-201 13 5 28-754 28 20-548 20 15-671 15 12-454 12 6 27-916 28 19-758 19 14-9-24 15 11-749 11 7 27-103 27 18-998 19 14-214 14 11-084 11 8 26-314 26 18-267 18 13-537 13 1 10-457 10 9 25-547 25 17-565 17 12-892 13 1 9-865 9 10 24-803 24 16-889 17 12-278 12 9-306 9 11 24-081 24 16-239 16 11-694 11 8-780 8 12 23-379 23 15-615 15 11-187 11 i 8-283 8 18 22-698 22 15-014 15 10-606 10 ' 7-814 7 14 22-087 22 14-487 14 10-101 10 , 7-372 ! 7 15 21-895 21 13-882 14 9-620 9 1 6-954 7 16 20-772 20 13-348 13 9-162 9 6-561 6 17 20-167 20 12-884 12 8-726 8 6-189 6 18 19-580 19 12-341 12 8-310 8 5-839 5 19 19-009 19 11-866 11 7-915 8 5-508 5 20 18-456 18 11-410 11 7-538 7 5-197 5 21 17-918 18 10-971 11 7-179 7 4-902 5 22 17-396 17 10-549 10 6-837 6 4- 6-25 4 23 16-890 17 10-143 10 6-511 6 i 4-363 4 24 16-398 16 9-753 9 6-201 6 4-116 4 25 15-9-20 16 9-378 9 5-906 6 8-883 3 26 15-456 15 9017 9 5-625 5 3-663 8 27 15-006 15 8-670 8 5-357 , 5 3-456 8 28 14-569 14 8-337 8 5-102 ! 5 3-260 3 29 14-145 14 8-016 8 4-859 4 3-076 3 30 13-733 13 7-708 7 4-627 4 2-902 3 31 13-333 13 7-411 7 4-407 4 2-737 2 32 12-944 13 7-1-26 7 4-197 4 2-583 2 33 12-567 12 6-852 6 3-997 4 2-436 1 2 746 Appendix I. Table III. — continued. After the.se I'ears. Yrs. Pr. 3 per Cent. 12 Yrs. Pr. 4 per Cent. Yr.s. Pr. 5 per Cent. Yrs. Pr. 6 ]ier Cent. 34 12-201 6-589 6 3-807 3 2-298 2 35 11-846 11 6-335 6 3-626 3 2-168 2 36 11-501 11 6-092 6 3-453 3 2-046 2 37 11-166 11 5-857 5 3-289 3 1-930 2 38 10-841 10 5-632 5 3-132 3 1-821 39 10-525 10 5-415 5 2-983 3 1-717 40 10-218 10 5-207 5 2-841 2 1-620 41 9-921 10 5-007 5 2-706 2 1-539 42 9-632 9 4-814 4 2-577 2 1-442 43 9-351 9 4-629 4 2-454 2 1-360 44 9-079 9 4-451 4 2-337 2 1-283 45 8-815 8 4-280 4 2-226 2 1-211 46 8-558 8 4-115 4 2-120 2 1-142 47 8-309 8 3-957 4 2-019 2 1-078 48 8-067 8 3-805 3 1-923 2 1-017 49 7-832 7 3-658 3 1-831 •959 50 7-603 7 3-518 3 1-744 •905 51 7-382 7 3-383 3 1-661 •854 ^ 52 7-167 7 3-253 3 1-582 •806 53 6-958 7 3-128 3 1-507 •760 1 54 6-756 6 3-007 3 1-435 •717 I 55 6-559 6 2-892 3 1-367 •677 1 56 6-368 6 2-781 2 1-302 1 •639 1 57 6-183 6 2-674 2 1-240 •603 4 58 6-002 6 2-571 2 1-181 •568 * 59 5-828 5 2-472 2 1-125 •536 1 60 5-658 5 2-377 2 1-071 •506 i Table III. — continued. After these Y'ears. Y'is. Pr. 7 per Cent. 13 Yrs. Pr. Sper Cent. Yr.s. Pr. per Cent. Yrs. Pr. 10 per Cent. 1 13-351 11-574 11 j 10^194 10 9-091 9 2 12-477 12 10-717 10 9-352 9 8-264 8 3 11-661 11 9-923 10 8-580 8 7-513 7 4 10-898 10 9-188 9 7-872 7 6-830 6 5 10-185 10 8-507 8 7-2-22 7 6-210 6 6 9-519 9 7-877 7 6-6-26 6 5-645 5 7 8-896 9 7-294 7 6-078 6 5-132 5 8 8-314 8 6^753 6 5-577 5 4-665 4 9 7-770 7 6-253 6 5-116 5 4-241 4 10 7-262 7 5-790 5 4-694 4 3-855 3 11 6-787 6 5-361 5 4-306 4 3-505 3 12 6-343 6 4-964 5 3-951 4 3-186 3 13 5-928 6 4-596 4 3-625 3 2-897 3 14 5-540 5 4-256 4 3-325 3 2-633 2 15 5-178 5 3-940 4 3-051 3 2-394 2 16 4-839 4 3-649 3 2-799 2 2-176 2 17 4-5-22 4 3-378 3 2-568 2 1-978 2 18 4-2-26 4 3-128 3 2-356 2 1-799 1 19 3-950 4 2-896 B 2-161 2 1-635 1 20 ) 3^691 3 2-682 2 1-983 2 1-486 1 VdJiKitiiin Tdhlrs. Table III. — continued. 747 After Yrs. Pr. Yis. Pr. Y'rs. Pr. Yn, . Pr. these 7 per Sper 9 per 10 per Years. Cent. 3 Cent. 2-483 2 Cent. Ct lit. 21 3-450 1-819 1 1 351 22 3-224 3 2^299 2 1-669 1 1 •229 23 3-013 3 2^129 2 1^531 1 1 117 24 2-816 2 1-971 2 1-405 1 1 015 25 2-632 2 1-8-25 1 1-289 920 26 2-460 2 1-690 1-182 839 1 27 2-299 2 1-565 1-085 763 Q 28 2-148 2 1-449 1-005 693 1 29 2-008 2 1-342 •913 630 1 30 1-876 2 1-242 •838 1 573 i 31 1-754 1-150 •769 . . 521 ; 32 1-639 1-065 •705 1 474 J 33 1-532 -986 •647 ; . 431 i 34 1-431 -913 •594 ■ r 391 1 35 1-338 -845 f •545 i 356 i 36 1-250 •783 •500 ii 3-23 i 37 1-168 •725 1 •458 5 294 i 38 1-092 •671 1 •421 h \ 267 !_ 39 1-021 •621 ^ •386 ; 243 i 40 -954 •575 1 •354 i' 221 * 41 -891 •533 ^ •325 i 201 i 42 •833 4 •493 4 •298 1 ' 183 i 43 -778 J . •457 ^ •273 166 i 44 -728 J . •423 1^ •251 l! 151 i 45 .680 J . •392 1 •230 i J 137 ^ 46 •635 1 •363 ^ •211 i 1 125 I 47 •594 1 •336 4 •194 * 113 i 48 •555 •311 i •178 ^ !i 103 ^ 49 •519 •288 i •163 * 094 A 50 •485 ^ •267 1 4 •150 * 085 r\ 51 •453 1 •247 i •137 ^ 078 A 52 •423 * •2-29 i •126 i 071 tV 53 •396 1 •212 i •116 i 064 tV 54 •370 4 •196 i •106 k 1 059 1^5 55 •346 i •182 * •097 ^ 053 A 56 •323 1 •168 * •089 ^ 049 /tt 57 •302 i •156 i •082 ^ [ 044 ^ 58 •282 i •144 i •075 ^ 040 ^ 59 •264 1 4 •134 ^ •069 ^ 037 ^ 60 -246 i •124 i •063 A 033 bV Table IV. — Showixg the pkesext Value of Oxe Pound payable at the End of any Number of Ye.\ks, at 3, 4, and 5 per Cent. Interest. Y'ears. Si.ei Cent. 4 per Cent. o pel Cent. Y'ears. S. d. s. d. S. d. 1 •971 19 5 •962 19 3 •952 19 1 2 •943 18 10 -925 18 6 •907 18 2 2 3 •915 18 4 •889 17 9 -864 17 3 3 4 •889 17 9 •855 17 1 -823 16 5 4 5 •863 17 3 •822 16 5 •784 15 8 5 6 •838 16 9 -790 15 10 •746 14 11 6 7 •813 16 3 •760 15 2 •711 14 3 7 748 Appendix 1. Table IV. — continued. Years. :) pe ■ Cent. 4 per Cent. 5 pe r Cent. Years. s. d. 1 s. d. s. d. 8 •789 15 9 •731 14 7 •677 13 6 8 9 •766 15 4 •703 14 1 •645 12 11 9 10 •744 14 11 •676 13 6 •614 12 3 10 11 •722 14 5 •650 13 •585 11 8 11 12 •701 14 •625 12 6 •557 11 2 12 13 •681 13 7 •601 12 •530 10 7 13 14 •661 13 3 •578 11 7 •505 10 1 14 15 •642 12 10 •555 11 1 •481 9 8 15 16 •623 12 5 •534 10 8 •458 9 2 16 17 •605 12 1 •513 10 3 •436 8 9 17 18 •587 11 9 •494 9 11 i -416 8 4 18 19 •570 11 5 i -475 9 6 1 ^396 7 11 19 20 •554 11 1 ! •456 9 1 ! -377 7 6 20 21 •538 10 9 •439 8 9 ; ^359 7 2 21 22 •522 10 5 •422 8 5 •342 6 10 22 23 •507 10 2 •406 8 2 •326 6 6 23 24 •492 9 10 •390 7 10 •310 6 2 24 25 •478 9 7 •375 7 6 •295 5 11 25 26 •464 9 3 •361 7 3 •281 5 7 26 27 •450 9 •347 6 11 ! ^268 5 4 27 28 •437 8 9 •334 6 8 ■ ^255 5 1 28 29 •424 8 6 •321 6 5 ! -243 4 10 29 30 •412 8 3 •308 6 2 •231 4 7 30 31 •400 8 •297 5 11 •2>20 4 5 31 32 •388 7 9 : ^285 5 8 •210 4 2 32 33 •377 7 6 •274 5 6 •200 4 83 34 •366 7 4 •264 5 3 •190 3 10 34 35 •355 7 1 •253 5 1 •181 3 7 35 36 •345 6 11 •244 4 10 •171 3 5 36 37 •335 6 8 •234 4 8 •164 3 3 37 38 •325 6 6 •225 4 6 •157 3 2 38 39 •316 6 4 •217 4 4 •149 3 39 40 •307 6 2 •208 4 2 •142 2 10 40 41 •298 5 11 •200 4 •135 2 8 41 42 •289 5 9 •193 3 10 •129 2 7 42 43 •281 5 7 •185 3 8 •123 2 5 43 44 •272 5 5 •178 3 7 •117 2 4 44 45 •264 5 3 •171 3 5 •111 2 3 45 46 •257 5 2 •165 3 4 •106 2 1 46 47 •249 5 •158 3 2 •101 2 47 48 •242 4 10 •152 3 •096 1 11 48 49 •235 4 8 •146 2 11 •092 1 10 49 50 •228 4 7 •141 2 10 •087 1 9 50 55 •197 3 11 •116 2 4 •068 1 4 55 60 •170 3 5 •095 1 11 , •054 1 1 60 65 •146 2 11 •078 1 7 1 •042 10 65 70 •126 2 6 •064 1 3 •033 8 70 75 •109 2 2 •053 1 1 •026 6 75 80 •094 1 10 •043 10 •020 5 80 85 •081 1 7 •036 8 i •016 4 85 90 •070 1 5 •029 7 •012 3 90 95 •060 1 2 •024 6 •010 2 95 100 •052 1 •020 5 •008 2 100 ]'(dn(itiou Tables. 749 Table V. — Present Value of a Lease, Estate, or Annuity for a given Number of Years, to pay the Purchaser 5 per Cent, on his Capital, re-investing the Surplus at 3, 3^, 4, or 5 per Cent, to reproduce his Capital, [nterest to be 5 per Cent. Years. 3 per Cent. 3J per Cent. 4 per Cent, i Years. 3 per Cent. 3J per Cent. 4 per Cent. 1 •95 •95 •95 ! 29 13-87 14-19 14-52 2 1-84 1-85 1-85 30 14-08 14-41 14-74 3 2-68 2-69 2-70 31 14-28 14.62 14-96 4 3-46 3-48 3-50 32 14-48 14-83 15-16 5 4-19 4-23 4-26 , 33 14-67 15-02 15-36 6 4-89 4-93 4-98 34 14-85 15-21 15-55 7 5-54 5-60 5-66 35 15-03 15-38 15-73 8 6-15 6-23 6-31 36 15-20 15-55 15-90 9 6-74 6-83 6-92 ] 37 15-36 15-72 16-07 10 7-29 7-39 7-50 38 15-51 15-88 16-22 11 7-81 7-93 8-05 39 15-66 16-03 16-38 12 8-30 8-44 8-58 40 15-81 16-17 16-52 13 8-77 8-92 9-08 ! 41 15-94 16-31 16-66 14 9-21 9-38 9-55 42 16-08 16-45 16-79 15 9-63 9-82 10-00 43 16-21 16-58 16-92 16 10-04 10-24 10-43 i 44 16-33 16-70 17-04 17 10-42 10-63 10-85 45 16-45 16-82 17-16 18 10-79 11-01 11-24 46 16-57 16-93 17-28 19 11-13 11-37 11-61 47 16-68 17-04 17-38 20 11-46 11-71 11-96 j 48 16-78 17-15 17-49 21 11-78 12-04 12-30 i 49 16-89 17-25 17-59 22 12-08 12-35 12-62 50 16-99 17-31 17-68 23 12-37 12-65 12-93 60 17-81 18-15 18-45 24 12-65 12-94 13-23 70 18-40 18-70 18-96 25 12-91 13-21 13-51 80 18-83 19-09 19-30 26 13-17 13-47 13-78 90 1914 19-36 19-53 27 13-41 13-73 14-04 99 19-34 19-53 19-67 28 13-64 13-96 14-28 100 19-36 19-55 19-68 Table VI. — Present Value of a Lease, Estate or Annuity for a given Number of Years certain to pay the Purchaser 6 per Cent, on his Capital, re-investing the Surplus at 3, 3i, 4, or 5 per Cent, to reproduce his Capital. Interest to be G per Cont. Years. 8 per Cent. SJper Cent. 4 per 1 Cent. 1 5 per Cent. Years. 3 per Cent. 31 per Cent. 4 per Cent. 5 per Cent. 1 -94 •94 •94 •94 11 7-24 ' 7-35 7-45 7-67 2 1-81 1-81 1-82 1-82 12 7-66 7-78 7-90 8-14 3 2-61 2-62 2-63 2-65 13 8-06 i 8-19 8-32 8-5H 4 8-84 3-36 3-38 3-42 14 8-44 8-58 8-72 9-01 5 4-02 4-06 4-09 4-15 15 8-79 8-94 9-09 9-40 6 4-66 4-70 4-74 4-83 16 9-12 9-28 9-45 9-78 7 5-24 5-30 5-36 5-47 17 9-44 9-61 9-78 10-13 8 5-72 5-86 5-93 6-07 18 9-73 9-92 10-10 10-47 9 6-31 6-39 6-47 6-63 19 10-02 10-21 10-40 10-7S 10 6-79 6-88 1 6-98 7-17 20 10-28 10-49 10-68 11-08 750 Appendix I. Table VI. — continued. 111 eresttol.H 6 per Cent. Yeai-s. 3 per 3i per i per 5 jier 3 per 3i iier 4 iier 5 per Cent. Cent. Cent. Cent. Cent. Cent. Cent. Cent, j 21 10-54 10-75 10-95 11-36 39 13-54 13-81 14-07 14-54 ^ 22 10-78 11-00 11-21 11-63 40 13-65 13-92 14-18 14-65 ; 23 11-01 11-23 11-45 11-88 41 13-75 14-02 14-28 14-74 24 11-23 11-46 11-68 12-12 42 13-85 14-12 14-38 14-84 ; 25 11-44 11-67 11-90 12-35 43 13-95 14-22 14-47 14-93 26 11-64 11-87 12-11 12-57 44 14-04 14-31 14-56 15-01 27 11-82 12-07 12-31 12-77 45 14-13 14-40 14-65 15-09 28 12-00 12-25 12-53 12-97 46 14-21 14-48 14-73 15-17 29 12-18 12-43 12-68 13-15 47 14-29 14-56 14-81 15-24 30 12-34 12-60 12-85 13-32 48 14-37 14-64 14-88 15-31 31 12-50 12-76 13-01 13-49 49 14-45 14-71 14-96 15-37 32 12-65 12-91 13-17 13-64 50 14-52 14-75 15-02 15-44 33 12-79 13-06 13-31 13-79 60 15-12 15-36 15-61 15-91 34 12-93 13-20 13-45 13-93 70 15-53 15-76 15-94 16-21 i 35 1306 13-33 13-59 14-07 80 15-84 16-03 16-18 16-38 ! 36 13-19 13-46 13-72 14-20 90 16-06 16-22 16-34 16-49 37 13-31 13-58 13-84 14-32 99 16-21 16-34 16-44 16-55 ! 38 13-43 13-70 13-96 14-43 100 16-22 16-35 16-44 16-56 1 Table VII. — Presp:nt Value of a Lease, Estate, or Annuity for a given Number of Years, cert.un to pay the Purch.\ser 7 per Cent, on his Capital, re-investing the Surplus at 3, 3|, 4, or 5 per Cent, to REPRODUCE his CAPITAL. Int erest to be 7 per Cent. 3 per 3A per 4 per 5 per 3 per 3i per 4 per 5 per Cent. Cent. Cent. Cent. Cent. Cer.t. Cent. Cent. 10-62 1 -93 -93 -93 -93 23 9-92 10-10 10-28 2 1-78 1-78 1-78 1-79 24 10-09 10-28 10-46 10-81 3 2-54 2-55 2-56 2-58 25 10-26 10-45 10-64 10-99 4 3-23 3-25 3-27 3-31 26 10-42 10-61 10-SO 11-16 5 3-87 3-90 3-93 3-98 1 27 10-57 10-77 10-96 11-32 6 4-45 4-49 4-53 4-61 j 28 10-72 10-92 11-11 11-48 7 4-99 5-03 5-08 5-18 29 10-85 11-05 11-25 11-62 8 5-48 5-54 5-60 5-72 30 10-99 11-19 11-38 11-76 9 5-94 5-87 6-08 6-22 31 11-11 11-31 11-51 11-88 10 6-36 6-41 6-52 6-69 32 11-23 11-44 11-63 12-01 11 6-75 6-84 6-94 7-12 33 11-34 11-55 11-75 12-12 12 7-12 7-22 7-32 7-53 34 11-45 11-66 11-86 12-23 13 7-46 7-57 7-68 7-91 35 11-55 11-76 11-96 12-33 14 7-78 7-90 8-02 8-26 36 11-65 11-86 12-06 12-43 15 8-08 8-21 8-34 8-59 37 11-75 11-96 12-16 12-52 16 8-36 8-50 8-63 8-91 38 11-84 12-05 12-25 12-61 17 8-62 8-77 8-91 9-20 39 11-93 12-14 12-34 12-69 18 8-87 9-00 9-17 9-47 40 12-01 12-22 12-42 12-78 19 9-10 9-26 9-42 9-73 41 12-09 12-30 12-50 12-85 20 9-32 9-49 9-65 9-97 42 1-2-17 12-38 12-57 12-92 21 9-53 9-70 9-87 10-20 43 12-24 12-45 12-64 12-99 22 9-73 9-91 10-08 10-42 44 12-31 12-52 12-71 13-05 1 Vdhuitiou Tables. Table Yll. co7i tinned . 751 Iiitprest to be 7 i)er Cent. Years. 1 3 per 3i per 4 piT : 5 per 3 per U per 4 i>er G per 1 Cent. j Cent. Cent. Cent. Cent. Cent. Cent. Cent. 45 12-38 12-59 12-78 13-11 60 13-13 13-32 13-48 13-73 46 12-44 12-62 12-84 13-17 70 13-45 13-61 13-75 13-95 47 12-51 12-71 12-90 13-25 , 80 13-68 13-81 13-92 14-08 48 12-57 12-77 12-96 13-28 90 13-84 13-95 14-04 14-16 49 12-62 12-80 1301 13-33 99 13-95 14-04 1411 14-20 50 12-68 12-88 13-06 13-37 100 13-96 14-05 1412 14-21 Table VIII. — Present Value of £1 pay.vble at the Death of a Person OF A on'EN Age, at the sever.\l Rates of 3, 4, and 5 per Cent. Interest. Age. 3 jier Cent. 4 pel Cent. 5 per Cent. Age. s. d. s. d. 8. d. 8 363 7 3 •282 5 8 1 227 4 6 8 10 369 7 4 •287 5 9 j 232 4 8 10 15 398 7 11 •315 6 4 258 5 2 15 20 428 8 6 •345 6 11 285 5 9 20 25 452 9 •368 7 4 306 6 1 25 30 478 9 7 '■ •393 7 10 ' 330 6 7 30 35 507 10 2 •422 8 5 ; 357 7 1 35 40 538 10 9 •454 9 1 389 7 9 40 45 572 11 5 •489 9 9 424 8 5 45 50 609 12 2 , •528 10 7 463 9 3 50 55 646 12 11 i •569 11 4 506 10 1 55 60 686 13 9 •614 12 3 553 11 1 60 65 729 14 7 •663 13 3 1 606 12 1 65 70 775 15 6 •717 14 4 ! 666 13 4 70 75 819 16 4 •771 15 5 1 726 14 6 75 80 861 17 3 •821 16 5 [ 785 15 8 80 85 895 17 11 1 -864 17 3 1 835 16 8 85 90 919 18 4 [ •894 17 11 1 1 870 17 5 90 Table IX. — Showing the Expectation of Life, or the Time a Person OF A Grv^EN Age m.\y expect to live. , Age. Carlisle. Actnarie.s' Hm. Age. Age. Carlisle. Actnarie.s' Hm. Age. 5 51-25 5 55 17-58 16-962 55 10 48-82 50-291 10 60 14-34 13-830 60 15 45-00 46-161 15 65 11-79 11-012 65 20 41-46 42-061 20 70 9-18 8-495 70 25 37-86 38-405 25 75 7-01 6-376 75 ' 30 34-34 34-681 30 80 5-51 4-719 80 1 35 31-00 31-016 35 , 85 4^12 3-511 85 40 27-61 27-399 40 87 3-71 — 87 45 24-46 23-792 45 90 3-28 — 90 50 21-11 20-306 50 752 APPENDIX K. REPORT OF A SELECT COMMITTEE OF THE HOUSE OF LORDS ON BETTERMENT (a). Bcport hjj the Select Committee appointed to consider and report n-]iether, in the case of improvements sanctioned hi/ Parliament and effected hi/ the expenditure of pidjlic funds, persons, the value of u-hose /iropertij is clearly increased hi/ an improvement, can he eqiiitahli/ required to contrihute to the costs of the improvements, and, if so, in vJiat cases and under irJiat conditions Parliament should sanction the levi/inr/ of sucJi contributions in local Acts or provisioned orders. Ordered to report — That the Committee have met and considered the subject referred to them and have agreed to the following report : — 1. The committee have taken evidence from the promoters of several Bills which have contained provisions for imposing what has been called a betterment charge in respect of improvements effected by local authorities. 2. They have also had before them witnesses who have had experience of the actual working of betterment charges in various forms, and they have taken the evidence of other experienced witnesses and of gentlemen who have written upon the subject. 3. They made known their willingness to hear any evidence that any municipal body or local authority might be disposed to lay before them. The committee, having fully considered the evidence taken before them, have come to the following conclusions, viz. : (a) The principle of "Betterment" is nothing new. We find it referred to by Samuel Pepys in his Diary under date December 3rd, 1667, under the term " Melioration." Referring to what he had been told by Sir Richard Ford he has the following entry : " He tells me also, speaking of the new street that is to be made from Guild Hall to Cheapside, that the ground is already most of it bought. And tells me of one particular of a man that hath a piece of ground lying in the very middle of the street that must be ; which, when the street is cut out of it, there will remain ground enough, of each side, to build a house to front the street. He demanded A'TOO for the ground, and to he excused paijinci ani/- tldnr/ for the melioration of the rest of Jiis ground that he was to keep. The Court consented to give him i'TOO only not to abate him the consideration : which the man denied; but told them, and so they agreed, that he would excuse the City the £100, that he niitiht have the hcnc/it (f the melioration ivitJiout payinij aiiythintj for it. So much sonic will get by having the City burned ! " Eeport on BcttiTmrxt. 753 (1.) The principle of betterment — in other words, the principle that persons whose property has been increased in market value by an improvement eftected by local authorities should specially con- tribute to the cost of the improvement — is not in itself unjust, and such persons can be equitably required to do so. But the effect of a public work in raising? the value of neighbouring lands is shown by experience to be uncertain. Whether, in any particular case, it is possible for a valuer to pronounce that such an effect has been produced by the completion of any public work, is a point upon which the evidence of eminent valuers dift'ers greatly. (2.) The Standing Orders should be amended so that in any case where a private Bill renders any property liable to a special charge on the ground that its market value will be increased by the com- pletion of a public work, the owners of such property, or of any interest therein, shall be entitled to notice before the introduc- tion of the Bill, in like manner as if the property were to be compulsorily purchased. (3.) It should be provided in the Bill that within some reason- able period after the completion of the work, the owner of the pro- perty intended to be charged should receive notice of the amount of the charge which the local authority proposes to make in respect of the said increase in the market value of the property due to the work in question. Inasmuch as the appropriateness of the period must to some extent depend upon the nature of the work and the condition of the neighbourhood, it would be difficult to tix any definite time applicable to all cases, but these considerations should be borne in mind by the committee to which the bill is referred. The period should not be so short that the effect of the improve- ment could not be adequately tested, and it should not be so long as to make the property intended to be charged suffer in its market value by the suspension of the decision as to the charge. (4.) In default of acquiescence by the person on whom notice is served, the amount of the charge to be made should be decided by an arbitrator, unless the said person claims to go before a jury, and the decision should be taken with as little delay as possible. (5.) All the costs of such arbitration or inquiry before a jury should be borne by the local authority claiming to lay such charge, unless the arbitrator or jury shall find or award the same sum or a greater sum than that which the local authority sought to lay upon the property, in which case each party shall bear his own costs incident to the arbitration or inquiry, and the costs of the arbitrator or jury shall be borne by both parties in equal pro- portions ; unless it should be otherwise ordered by the arbitrators, or in the case of a jury by the High Court, upon the ground that the opposition to the proposed charge has been frivolous and vexatious. (6.) If the ow^ner has property in the immediate neighbourhood which is found to be injured in its market price by the same work, the amount of the injury should be considered in determining the charge to be imposed upon him for improvements. (7.) If the owner is of opinion that the charge exceeds the enhancement of market value due to the public work, he should L.C. 48 i'liuciple. Notice. Notice of amount. Decided b}^ arbitrator. Costs. Worsement. Owner may claim to sell at unim- proved value. 754 Ajip('iuh'.r K Bill? Power to make street improve- ments, &c. be entitled to claim that the local autlioritv should purchase the property in question at the value which it bore, without regard to any improvement conferred or to be conferred upon it by such Avork, but under such circumstances a local authority purchasing a free- hold or long leasehold should not be compellable to dispossess the occupying tenants, and should, if they prefer it, be empowered to purchase the reversion subject to any intermediate interests. (8.) If any question should arise as to the incidence of the betterment charge between any of the persons entitled to different interests in the same property charged, the question should be determined by arbitration. (9.) A'arious witnesses have illustrated their opinions by reference to the Bills now before Parliament, but the committee (to which these Bills have not been referred) has formed no opinion on the merits of either of the Bills in question ; but inasmuch as the pro- vision as to notices in paragraph (2) is inapplicable to the Bills already introduced, the committee consider that it ought to suffice if the select committee to which the Bills in question are to be referred should be satisfied that adequate notice has been given to all persons who may be afiected by the proposed process of charging. (10.) The committee have received evidence upon what has been called " recoupment," that is to say, powers given to a municipal or other public body to take land beyond what is necessary for the actual execution of the work, so that some part at least of the improved value may be secured by the improving public body in case of the burden upon the ratepayers. Some evidence was given by persons who had actual experience of the operation of such a system, the general effect of which was that it had not proved successful ; but the committee are not satisfied that it has ever been tried under circumstances calculated to make it successful, inasmuch as no sufficient power has ever yet been given to local authorities to become possessed of the improved properties without buying out all the trade interests, a course which is inevitably attended with wasteful and extravagant expenditure. The following are specimens of Betterment Clauses. They were inserted in the Manchester Corporation Act, 1894: — 1. Subject to the provisions of this Act the corporation may, in the lines shown upon the deposited plans and according to the levels shown upon the deposited sections relating thereto, respec- tively make and maintain the street improvements and other works hereinafter described, and may, in the lines shown on the deposited plans relating thereto, make the new footpath in the town of Barton- upon-Irwell, hereinafter described, with all proper works and con- veniences connected therewith respectively, and may exercise the powers hereinafter mentioned (that is to say) : Firstli/. — They may widen on the east side thereof in the town- ship and parish of jNIanchester, in the county of Lancaster, the street known as Half Street, between Fennell Street and the street Bettrrmrut Clauses. 755 called Hanging Ditch, so as to make the same of the width of ten yards ; Secondhf. — They may widen on the east side thereof so much of Victoria Street, in the township and parish aforesaid, as lies between Cathedral Yard and Cateaton Street ; Thirdli/. — They may make a new road in the township of Hulme, in the parish of Manchester, in the county of Lancaster, in continua- tion of the proposed road or street leading from the north-west end of Hulme Hall Road across the Bridgewater Canal to and under the Manchester South Junction and Altrincham Railway, such new road commencing at the westerly side of the said railway, and termi- nating at the westerly side of the railway of the Cheshire Lines Committee, and for the purpose thereof may alter the viaduct upon which the last-mentioned railway is constructed ; Fourthly. — They may stop up and discontinue and extinguish all rights of way over so much of the public footpath in the township of Barton-upon-L-well, in the parish of Eccles, in the county of Lancaster, leading from Davyhulme to Barton which crosses the sewage outfall works of the corporation, as lies between a point on such footpath four hundred and forty- seven yards or thereabouts northwards from its junction with Davyhulme Lane and the point where it joins Barton Road, and in lieu thereof they may make a new footpath in the same township and parish between the points aforesaid. 2. And whereas the street improvements firstly and secondly Improvement described in and authorised by this Act, including those referred ^'^^^S^- to in or arising out of the scheduled agreements (in this section referred to as "the Improvement"), will be efi'ected out of the public funds over the whole city, and will or may substantially and permanently increase in value lands in the neighbourhood of the above-mentioned street improvements which will not be acquired for the purpose thereof, and it is reasonable that pro- vision should be made under which in respect or in considera- tion of such increased value a charge should be placed on such lands. Therefore the following provisions shall have eft'ect, provided that the same shall not be put into force unless the corporation, by resolution of the council, within t\vo years after the passing of this Act, determine to do so : — (1.) All lands within the limits marked on the deposited plans Lands as " limits of deviation and of land to be acquired" in relation to charged, the improvement, but which shall not be purchased and taken by the corporation under the powers of this Act, shall be liable to have an improvement charge placed on such lands or some of them (in accordance with the provisions hereinafter set forth) in respect or in consideration of any substantial and permanent increase in value which is clearly shown to be derived from the improvement; (2.) At least two months before the corporation commence any part of the improvement they shall give notice by registered letter addressed to each owner, lessee, or occupier of any such lands within the limits of deviation and of land to be acquired shown on the deposited plans as the corporation include in such specification ; 48—2 756 Appendix K. thereupon any such owner, lessee, or occupier raay apply to the Local Government Board to appoint some independent person to make a valuation of the several lands within the limits of deviation and of land to he acquired which the corporation have included in the specification. A copy of the specification shall be delivered to the person so appointed within twenty-one days after his appoint- ment, and the person so appointed shall thereupon, after giving such notice or notices as the Local Government Board may direct, and hearing any parties interested and applying to be heard, proceed to make a valuation of all such lands, which valuation is hereafter referred to as the " initial valuation." The proper cost of making the initial valuation, including the reasonable costs, charges, and expenses of all or any of the parties interested (to he fixed in case of difterence by the Local Government Board) shall be paid by the corporation ; Provided that if within one month after the service of the said notices no application be made for the appointment of a person to make the initial valuation, the corporation shall make such appli- cation and the valuation shall be made accordingly ; In making such valuation the valuer shall separately distinguish and assess in each case the value of the land apart from that of auy existing buildings thereon, and shall also value the land and build- ings as a whole, and shall not take into consideration any increased value accruing or supposed to accrue to such laud or buildings from or in consequence of the improvement, but shall only take into consideration the value independently of the improvement and as if the improvement had not been contemplated ; The valuer shall also separately value' the interest of the owner of any such lands and the interest of every lessee of any such lands for a term having not less than twenty-one years to run at the date of the valuation, excluding from each such valuation any trade interest, and shall not take into consideration any increased value accruing or supi)Osed to accrue to such lands from or in consequence of the improvement, but shall only take into consideration the value of the said lands independently of the improvement and as if the im])rovement had not been contemplated ; The initial valuation when made shall be deposited with the town clerk and shall be kept deposited at his office, and shall be open to insiiection at all reasonable times by auy persons and their duly authorised agents interested in any lauds comprised in the said valuation ; Assessment. (3.) The corporation shall not sooner than twelve months nor later than three years after the issue by them of a certificate under seal of the completion of the improvement cause to be framed an assessment describing the lands situate within the said limits and comprised in the said valuation Avhich the corporation allege ought to bear and pay the said improvement charge, and the corporation shall ill such assessment state and specify — (a) The names of the owners, lessees, and occupiers of the lands described in the said assessment respectively so far as they can be ascertained ; Betterment Clauses. 757 (b) The amounts by way of chavpjc which the corporation allege ought to be charged upon such lands respectively ; The assessment shall contain a statement of the amount which the corporation allege is the enhanced market value derived by the lands respectively from the improvement ; The amount to be proposed in the assessment as the charge to be placed on any lands under the provisions of this section shall be equal to three per centum per annum upon one-half of the amount which the corporation allege is the enhanced market value derived by the said lands from the improvement after making fair and proper deductions for rates, taxes, assessments, and impositions on the said lands according to such increased value ; (4.) The assessment shall be submitted to and considered by the corporation at a meeting or meetings of the council, and the corpo- ration may by resolution approve the same either with or without modification or addition as they think fit ; (5.) The resolutiou approving an assessment shall be published once in each of two successive weeks in two or more Manchester daily newspapers, with an interval of at least six clear days between the two publications, and copies of such resolution shall be publicly posted on the site of the improvement to which it relates, and within seven days of the date of the first publication of the resolu- tion copies thereof shall also be served on the owners, lessees, and occupiers of the lauds described in the assessment : Provided that in case the corporation are unable after diligent inquiry to ascertain the name or address of any owner or lessee on whom a copy is to be served, it shall be sufficient to serve a copy of the resolution either by delivering the same to the occupier of the lands with a notice that the same is to be given to each immediate or superior landlord or owner or by aflixing a copy of the resolution to some conspicuous and convenient place on or near the lands ; The notice served on the owners, lessees, and occupiers under this section shall state shortly the effect of the resolution and assessment upon the lands in respect of which they are served, and also of the provisions of this section with respect to the time and mode of objecting to the assessment and the grounds on which the assessment maybe objected to, the right to have the matter decided by a jury, and the payment of costs ; (6.) From and after the date of the first publication of the resolution and until the expiration of three months from the date of the last publication thereof the assessment or copies thereof certified by the town clerk or some other officer of the corporation shall be kept deposited at the town hall and shall be open to inspection at all reasonable times by any person interested : (7.) During the said period of three months any owner or lessee of any lands described in the assessment or the occupier thereof for the time being may by written notice served on tlie corporation object to the assessment on any of the grounds following : — (i.) That any lands in which he is interested included in the assessment ought to be excluded bv reason that it has not Approval of assessment by corporation. Notice of assessment. Copies to be deposited. Objections to assessment. 758 Appendix K. If no objec- tion assess- ment final. Arbitrator to settle objec- tions. been or cannot be clearly shown that the market value of the lands to which the notice relates is substantially and permanently increased by the improvement ; (ii.) That the amount of any charge proposed to be placed upon any lands in which he is interested ought to be varied ; (iii.) That the assessment is incorrect in respect of some matter of fact to be specified in the objection ; At any time during the said period of three months after the last publication of the assessment the owner or lessee of any lands upon which a charge under this section is proposed to be placed who may be the owner and lessee of other property in the immediate neighhourhood of the improvement, whether within or without the limits of deviation and of land to be acquired, may give written notice to the corporation that suhstantial and permanent decrease in the value of such other property has been caused by the improvement and that he claims that such decrease shall be con- sidered by the arbitrator, and if it be clearly shown that any substantial and permanent decrease in the value of such other property has been caused by the improvement the arbitrator shall deduct the same before determining the amount of the charge in respect of such lands ; For the purposes of this section joint tenants or tenants in common may give any such notice as aforesaid through one of their number authorised in writing under the hands of the majority of such joint tenants or tenants in common, and any lessees may combine in a notice ; (8.) If at the expiration of the said period of three months no notice of objection shall have been served on the corporation, then the corporation may publish notice to that effect in the London Gazette, and as from the date of such notice such assessment shall become final ; (9.) If any such notice of objection be served on the corporation within the said period of three months, then the corporation may apply to the Local Government Board to appoint an arbitrator for the purposes of this section, and the Local Government Board shall appoint an arbitrator accordingly, and as often as any such arbitrator shall die, or resign, or become incapable of acting (previous to the making of an award as hereinafter provided), the corporation may in like manner apjDly to the said Board, and the said Board shall from time to time appoint another arbitrator in his stead, and every such arbitrator shall be entitled to such fees or remuneraticm as may be fixed by the Local Government Board ; Provided that at the time of serving an objection to the amount of the charge imposed upon any lands, the owner, lessee, or occupier so objecting may give notice in writing to the corporation that he requires the same to be determined by a jury instead of an arbitrator, and thereupon the corporation shall forthwith issue their warrant to the sheriff or other proper person, requiring him to summon a jury to determine the matter of such objection and to determine the amount to be charged upon the lands in pursuance of this section. Thereui)on the matter of such objection shall (subject to the provisions as to costs hereinafter set forth) be JUihTiiii'iit ChiiiS('s. 759 determined in the same manner as a question of disputed compen- sation under the Lands Clauses Acts. The record of the verdict shall he delivered hy the sheriff or other ofhcer hefore whom such inquiry was held, to the arbitrator, who shall thereupon amend the assessment by inserting therein, in respect of the lands to which the objection related, the amount found by the verdict of the jury. (10.) The corporation may any time before the appointment of Amendment the arbitrator, but subject to the provisions of this section, by "f assessment, resolution amend the assessment so as to include in the assess- ment as amended any lands by this Act made liable to have an improvement charge placed upon them and comprised in the initial valuation, but not in the original assessment, and may fix the sums proposed to bo charged upon any such lands, but any such resolution shall be published and copies thereof shall be served and copies of the amended assessment deposited for public inspection in the manner hereinbefore described with respect to the original resolution and assessment, and objections may be made to the amended assessment in like manner, and if made shall be dealt with and determined in like manner as objections to the original assessment ; (11.) — (i.) The corporation at any time after the appointment rrocedure of of the arbitrator may apply to the arbitrator to appoint a time for arbitrator, determining the matter of all objections made as in this section mentioned and for making an award, and shall publish a notice of the time and place appointed, and copies of such notice shall be served upon the objectors and also upon the owners, lessees, and occupiers of any lauds inserted, or which it may be proposed to insert, in the award (being in all cases lands by this Act made liable to have an improvement charge placed upon them and com- prised in the initial valuation), and at the time and place so appointed the aibitrator may proceed to hear and determine the matter of all such objections. The arbitrator may amend the assessment on the application either of any objector or of the corporation : Provided that if he insert in the award any lands or the name of any person not included in the original assessment, or increase the amount of the charge on any lands, such notice as the arbitrator may think sufficient shall be given to the persons affected, to enable them to object to such insertion or increase ; (ii.) The arbitrator may also, if he think fit, adjourn the hearing and direct any further notices to be given ; (iii.) No objection to any assessment or award which could be made under this Act shall be otherwise made or allowed in any court proceeding or manner whatsoever ; (iv.) All the reasonable and proper costs of any such arbitrator and of such inquiry before a jury, and incident thereto, shall be borne by the corporation, unless the arbitrator shall award or the jury shall give their verdict for the same amount of charge as shall have been proposed in the assessment, or for a greater amount, in which case each party shall bear his own costs incident to the inquiry or arbitration, and the costs of the arbitrator or jury shall be borne in equal proportions: Provided that if it shall 760 Appendix K. Final award. Effect of charge. Incidence of charsre. Collection of charge. appear to the avLitrator, or in case of an inquiry by a jury to a judge of the High Court, that any objection to the amount pro- posed to be assessed was frivolous and vexatious, the arbitrator or judge may make such order concerning the costs of the person making such objection as to him may seem meet ; (v.) Where such costs are ordered to be paid or become pa^-able by an objector or objectors, the arbitrator may, if he thinks fit, add such costs to the charge apportioned on the estate or interest of the objector or objectors ; (12.) When and so soon as the assessment and any amendments thereof, and all objections thereto respectively, shall have been disposed of as by this section directed, the arbitrator shall issue an award under his hand, which shall be final and conclusive for all purposes ; A copy of the award shall be published once in the Ly landowner for compensation where promoters fail to summon jury, 186—188. By landowiier where promoters enter upon land, 187. By owner of rent-charge, form of order in, 262, 263. By unpaid vendor to enforce lien, 262 — 264. By occujiier for penalties, 269, 270. Tender of amends in case of, for iiregularity, trespass, or wrongful act, 339. By landowner where railway constructed beyond limits of deviation, 368. For interference with riglit of way, 393. F(.r damage to mines by water, 403. Remedy for nuisance is by, 524. ADJOINING LAND. See Laud. Indax. 7Go ADJOIXIXa OWXER. See Oirner. When superfluous land vests in, 316, 322. Division of superfluous lands whore more than one, 326. Title of, not affected by new special Act, 326. Includes lessee or person with limited interest, 327. Owner from whose property land has been severed not necessarily an. 328. Inquiry as to, where right of pre-emption claimed, 329. ADMINISTEATIOX, Promoters must paj' costs of suit for, 233. Promoters must pay costs of taking out, 250. ADMINISTRATOR, Sale of land by, 28, 470. 471. Meaning of, 33. Compensation payable to, to be paid into bank, 190, 191. ADMIRALTY, laud acquired by, 62.5—627. ADMIT, form of notice to, 676. ADVERSE LITIGATIOX, Dispute as to division of purchase- money is not, 242. Ascertaining consti-uction of doubtful devise not, 242. Costs of payment out of Court in case of, 243. Costs occasioned by, 243, 244. APFIDAVIT, Excess of jurisdiction may be proved by, 126. On petition or summons for payment out of Court, 209, 210. By married woman on petition or summons for payment out of Court, 210. Upon applications under statute directing money to be paid into Court, 71o, 716. AGENT, Service on, 71. Occupier not, of owner to accept service of notice, 71. AGEEEMEXT:. See Contract. Land purchased by agreement, IS, 192. In form prescribed bj' Companies Claiises Act, 1845, 19. Specific performance of, where part performance, 20. Eor purchase of land before incorporation of company, 20. For purchase of land under sect. 30 of Railways Construction Facilities Act, 1864, 20. Time for taking land luider, 20. Specific performance of, 21 — 23. To construct siding, specific perfoiTuance of, 22. To sell land on conditions, specific performance of, 22, 23. Specific performance of, where prescribed formalities have not been observed, 23. Specific performance not decreed where landowner has remed}' in damages, 23. Where too vague, specific performance refused, 23. Specific performance refused where pui'chase price not ascertained, 23. 766 Index. AGEEEMENT— con^/« ned. Specific performance refused where action pending to determine owner's interest, 24. Interest not jjayable where completion of, delayed by vendor, 27. "Where comi^letion of, delayed by purchaser, 27. By parties under disability, 28. By promoters not to exercise statutory powers is void, o4, 152. Prior, determined by notice to treat, if regular, 60. Person in possession under building, entitled to notice to treat, 63. How compensation assessed where no, 72. To refer to arbitration where claim under £50, 76. Costs where, to refer claim to arbitration, 95. For purchase by jtromoters with person not absolutely entitled, 212, 213. To j)urchase or notice to treat condition precedent to entry on lands imder sect. 85, 256, 257. Apiwrtionment of copyhold rents by, 289. Eor compensation where commonable lands taken, 291, 292. Compensation to tenant with, for lease, 309, 310. To sell land to promoters if they should require it, 312, 313. Land purchased by, may be superfluous, 320. Form of, for purchase of land, 047. AGEICULTUEAL LAND, valuation of, 729. ALLOCATUE, justice cannot question, of master, 134, ALLOTMENTS, Parish council may hire land for, 510. Acquisition of land by sanitary authority for, 530 — 532. AIjLOTMENTS ACT, 1887, Acquisition of land for purpose of, 530, 531. Incorporation of Lands Clauses Acts in, 530. Compensation for land taken under, to be settled by arbitrator, 531. Sale of superfluous land under, 532, 533. Power to make provision for common pasture, 533, 534. AMENDS, tender of, for irregularity, trespass, or wrongful act, 339, 427. ANCIENT LIGHTS, compensation for interference with, 57. ANNUITANT, interest of, where annuity charged on lease, 205, 218, 219. ANNUITY, A hereditament, 10. Whei-c income insufficient to pay, 205. Purchase of, in favour of lunatic to release rent-charge, 302, 303. Valuation tables for, 743 — 745, 749 — 751. APPEAL From decision of High Court on special case, 87. To quarter sessions from decision of justices, 343, 39(), 397. To Board of Trade against deviations, 364. To London County Council hy person aggrieved by order of Borough Council, 493. Against award under Ilousingof Working Classes Act, 1890, 609—611. Where arbitrator under Arbitration Act has stated his award in form of .special case, 690. im]r.,: 767 APFEAJj—O'idinueil Award in form of special case for Court of, under Metropolis Water Act, 1902, 634, 635. Court of, has power of Court or judge imder Arbitration Act, 1889, 695. APPLICATIOX OF TUECIIASE-MOXEY DEPOSITED, In case of persons under disability, 190, 191, 211. In discharging land-tax, 191, 194, 195. In discharging incumbrance, 191. In purchase of lands, 191. 192. In removing or substitutiug buildings, 191. In i)aynient to party absolutely entitled, 191. To investment in buildings, 194, 195. To necessary repairs, 194, 195. To expenses incm-red under Inclosiu-e Act, 194. To rebuilding rectoiy, 194, 195. When governed by Settled Land Acts, 202, 203. "SMiere amount exceeds £200, 190, 191. VThere amount is between £20 and £200, 211. Where amount does not exceed £20, 211, 212. APPOINTMENT Of umpire, 81, 88, 91, 92, 424, 518, 519. Of arbitrator, 83, 84, 423, 424, 517, 518, 601. Of arbitrator may be signed by secretaiy of company, 84. Improper appointment of arbitrator or umpire, waiver of, 85, 86. Failure to obtain concuri-ence in, of single arbitrator, 86. Of umpire by lot invalid, 89. Of umpire by Board of Trade, 90, 424. Offer by promoters after, of arbitrators, 96. Of standing arbitrator under Meti'opoiis (Prevention of Floods) Act, 1879, 503. Of arbitrator under Allotments Act, 1887, 531. Form of, of arbitrator by claimant, 652. Form of notice by claimant of, of arbitrator, 653. Form of, of arbitrator by promoters, 653. Fonn of, of single arbitrator, 654. Form of, of arbitrator to act for both parties under sect. 25 of the Lands Clauses Consolidation Act, 1845, 655. Form of, of arbitrator by claimant dissatisfied with valuation of siu-veyor, 656. Form of, of umpire by arbitrators, 656. Form of, of umpire by Board of Trade, ('57. APPOETIONMENT, Arbitrator no power to deal with, of rent, 79, 305. Of dividends, 205. ^^^lere claimant's interest smaller than claimed, 224. Costs of landowner of, of rent, 228. Of costs, where money paid into Court by more than one company, 243, 244. Of sui-veyor's fee where money paid into Court by more than one company, 243, 244. Of stamp dutj' where money paid into Court by more than one company, 243, 244. 768 Imh'.v. APPORTIONMENT— 'v,y/^/,«^,/. Of copyliold rents, 'iSO. Of rent under lease, ;i04, 305. Lessee not bound to obtain consent of lessor to, of rent, 305. Costs of, of rent, 305, 306. Power of arbitrator as to, under Housing of Working Classes Act, 1890, 604. Eonu of notice to promoters for, of rent. 671-'. Summons for, of rent, 672. Porm of, b}- two justices, 673. APPROACH To bridge, wben repairable bj" railway company, 385, 386. Railway company to provide, to level crossing, 397. ARBITRATION, "Where trustees are not parties to, 32. Injunction refused where proceedings abortive, 68. Agreement to refer to, claim under £50, 7(5. Claim for compensation over £'50, when settled by, 77, 78. Landowner entitled to jury where, proceedings fail, 82, 115. By consent where claim less than £50, 84. Where ai'bitrator nominated by persons other than the parties, not a compulsory, 85. Injunction to restrain, proceedings, 86. Where futile or vexatious, 86. Revocation of submission to, 87, 678 — 681. '\\Tiere one arbitrator unable to attend, 89. Court has no power to order a commission to examine witness in, 92» 690. Evidence in, must be on oath, 93. Refusal of party to attend, 94. Costs of, 95, 97, 98, 353, 425, 683, 684. Costs of, where lands injuriously affected, 95. Costs of, where agreement to refer, 95. Costs of, where umpire dies before award, 98. Costs of, under Arbitration Act, 1889, 98. Effect of submission to, 103. Where owner desires, 111. Absent owner may demand, 153. Costs of, demanded by absent owner, 154. To assess compensation in case of land injiuiously affected, 154. Costs of, in case of intersected land, 284. To settle compensation for common lands, 294, 295. Differences as to right of pre-emption to be settled by, 330. Compensation to owner for injiuy to mines to be settled by, 420, 421. Disputes under Railways Clauses Act, 1845, to be settled by, 423. To detemiine compensation on abandonment of railway, 429, 430, 431, 432. Compensation under Public Health Acts to be settled by, 517 — 521. Costs of, imder Public Health Act, 1875, 520. "Under Electric Lighting Act, 1882, 573. Under Housing of Working Classes Act, 1890, 582, 592—594, 601— 613. Costs of, under Housing of Working Classes Act, 1890, 611, 612. Compensation may be settled by, under Military Lands Act, 1892, 623. Jitdrx. 769 XV,BITIIA.T10:^— continual. I'rovisions as to, under Metropolis "Water Act, 19U2, (j;j3 — (i-'JO. Costs of, under Metropolis "Water Act, 1902, 635. Form of demand tor, (iol, 652. Power to stay proceedings where there is a submission to, 685. ARBITEATIOX ACT, 1889, Application of, 10.3. Applies to arbitrations under Light Railways Act, 1896, ()30. How far to be applied to arbitrations under Metropolis "Water Act, 1902, 635, 636. Submission irrevocable except by leave, 678 — 681. Pro\'isions implied in every submission unless contrary exi^ressed, 681 . Reference to single arbitrator, 681. Reference to two arbitrators and umpire, 681, 682. Award to be in writing within three months, 682, 683. Enlargement of time for award, 682, 683, 691. Arbiti'ators or umpire may administer oaths, call for docmnents, &c., 683, 689. Costs under, 683, 684, 696. Reference to official referee, 685. Power to stay proceedings where there is a submission, 685. Power of Court to appoint arbitrator, 687 — 689. Failui'e of arbitrators to appoint umpires, 688. "^Tiere umpire refuses to act, 688. Award in form of special case under, 690. Power to correct award, 690. Witnesses may be summoned by subpa-na, 691. Power to remit award under, 691. Power to set aside award under, 692. Misconduct of arbitrator or imipire, 692, 693. Enforcing award under, 639. Power of Court to refer certain cases under, 694. Remuneration of referees and arbitrators, 694. Coiu't of Apjieal has all powers of Court or judge under, 695. Power of Court to compel attendance of witnesses, 695. Statement of case by arbitrator or umpire pending arbitration, 695, 696. Crown bound by, 696, Aj^plication of, to references under statutory powers, 696. ARBITRATOR, In Ireland notice of aj^pointment of, equivalent to notice to treat, 66. Can only award money compensation, 79. Cannot inquire into title, 79, 80. Has no power to aj:)portion rent, 79, 305. Enlargement of time by, 81, 683. Appointment of, S3, 84, 424, 517, 518. Appointment of single, 83, 84, 517, 681. To act for both parties, 83, 84. Xotice of intention to appoint, insufficient, 84. Appointment of, may be signed by secretary of company, 84. Xominated by person other than the parties, 85. Nomination of, under protest, 85. Waiver of improper appointment of, 85, 86. Failure to obtain concurrence in ai^pointment of single, 86. LC. 49 770 Index. ARBITRATOR— co;/«//; ued. Where incompetent, 86. Where one of the parties is in litigation with, 87. Death or incapacity of, 88, 424, 518, 519, 688, 689. Failure of, to appoint umpire, 89, 90, 688. Death of single, 90, 424. Refusal of, to act, 90, 91, 424, 425, 688, 689. Allowing time for award to elapse, 91. Failure of arbitrators to make award, 91, 425. Has power to call for books, &c., 92, 425. Has power to examine witnesses on oath, 92. May seek expert assistance, 92. Must not consult solicitor of party as to form of award, 93. Must decide all points referred, 93, 108. Irregularity in procedure by, 93. To make declaration, 94, 425, 519. Offer by promoters after appointment, 9(5. Taxation of fees of, 98. To furnish award in writing to promoters, 101, 102. Has lien on award for his charges, 102. Mandamus to promoters to appoint, 102, 103. May be called as a witness, 104. Mistake of, 107. Exceeding his jurisdiction, 106, 107. Misconduct by, 106, 107, 692. Refusal of, to state special case, 107. Evidence taken by, on matters not referred, 109. Not entitled to know amount of offer, 132. To award compensation for damage by severance, &c., 138, 139. Must not consider rise in value after notice to treat, 152. Where compensation awarded by, more than awarded by surveyor to absent owner, 153. ^Vhere, faHs to award costs, 232, 233. To award compensation for future damage, 178, 421. Appointment of, under Railways Clauses Act, 1845, 423, 424 et seq. Under Railways Clauses Act, 1845, costs in discretion of, 425. Standing, under Metropolis (Prevention of Floods) Act, 502, 503, 504. Appointed under Local Government Act, 1894, 510. Appointed under Public Health Act, 1875, 517 — 519. Neglect of, to deal with costs under Public Health Act, 1875, 521. Appointed under Allotments Act, 1887, 531, 532. Nominated by Board of Trade under Electric Lighting Act, 1882, 573. Evidence as to compensation to be received by, under Housing of Working Classes Act, 1890, 583, 592. Provisions as to, under Housing of Working Classes Act, 1890, 592—594, 601—613. Form of notice by claimant, that he desires compensation assessed by, 651. Ponn of appointment of, 652. FoiTU of notice by claimant of appointment of, 652. Form of apiDointment of, by promoters, 653. Form of appointment of single, 654. Form of appointment of, to act for both parties, 655. Form of appointment of, by claimant who is dissatisfied with the valuation of surveyor, 656. Index. 771 AEBITE ATOE— c-o»f /« ('e-Z. Form of notice by, of failui-e to agree, doS. Form of award by two, 658. AVrougful admission of evidence by, ground for revocation, 680. Time for award by, under Arbitration Act, 1889, 682. Costs in discretion of, under Arbitration Act, 1889, 684. Power of Court to appoint, under Arbitration Act, 1889, 687. Remuneration of, under Arbitration Act, 1889, 694. May state case pending the arbitration under Arbitration Act, 1889, 695. AECHES To be marked on deposited plans, 365. Construction of, 369. Deviation from deposited plan in construction of, 434. Making, &c., of, by London County Council, 495. AETIZ.iNS' AND LABOUEEES' DWELLINGS ACTS, repealed and consolidated by Housing of Working Classes Act, 1890, 575 — 613. ASSESSMENT OF COMPENSATION. See Compensation. Separate for claimants with separate interests, 114. Where amount of claim under £50, by justices, 76, 82. By arbitration, 77, 78. Where amount of claim under £50, by arbitration by agreement, 84. By judge and jury, 80, 112, 445, 446. By jury if arbiti'ation proceedings fail, 82, 115. Where lands situate, 116. Where claimant does not appear at inquii-y, 120. For land and damages, separately, 121, 122. By jury, taxation of costs, 132 — 134. To absent owner, 137. Sui-veyor in service of promoters should not be appointed for, 138. Damage by severance, &c., to be considered in, 138, 139. Of landowner's interest, rehus sic stantibus, 139, 140. Pui-pose for which land taken to be considered in, for severance, 146. In case of lands injuriously affected, 154. Future damage to be considered in, 178. In, damage must not be too remote, 180. For injiu-iously affecting lands of yearly tenant, 185. Court will not restrain, on ground that claimant has no title, 188. Statutory limit to proceedings agamst public authority does not apply to, 189. Cost of, of lands injuriously affected, 190. Where claimant fails to make a title, 220, 221. For mines and minerals, 414, 416. For land taken for flood works in metropolis, 501 — 505. Under Housing of Working Classes Act, 1890, 601—613. ASSIGNMENT Of lease to promoters, 33. Lease with j^roviso against, 34. ATTOENEY-GENEEAL, injunction granted at instance of, where public interests affected, 46. 49—2 772 Index. AWAED Where more than two justices have determined the amount of coni- pensation, 14. . Outside Lands Clauses Acts, 27, 353. Time within which umpire must make, 80, 81, 518 — 521, 083. Made after three months invalid, 81. Court may enlarge time for, 81, 521, 683, 691. Parties may consent to enlargement of time for, beyond statutable period, 81, 82. Of single arbitrator, 84. In foiTU of special case, 87, 090. Umpire must make, on all matters referred, 89. Arbitrator allowing time for, to elapse, 91. Failui-e of arbitrators to make, 91, 425. Umpire has three months within which to make, 91. Arbitrator or umpire must not consult solicitor of party as to form of, 9;). Setting aside of, 93, 106, 107, 108. Sui'prise ground for setting aside, 94. Costs of, 97, 98, 683, 684. Death of umi)ii-e before, 98. Settlement of costs subsequent to, 98. Tn respect of different subject-matter, costs of, 98. To be delivered in writing to promoters, 101, 102. Promoters to allow claimant at all times to inspect or take copy of, 102. Promoters may be compelled by mandamus to take up, 102. Arbitrator has lien on, for his charges, 102. Where claimant takes up, and pays arbitrator's fees, 102. Enforcement of, by action, 103, 104, 105. Injunction to restrain action for enforcing, 104. Promoters cannot dispute amount of, 104. Enforcement of, by action for specific performance, 105. Not void through error in form, 106, 426, 690. Must apportion amount due to each claimant, 108. Bad if it leaves points undecided, 108. Effect of an order to pay in an, 108. May contain one sum to cover several heads to damage, 108. May be set aside on ground of misconduct of arbitrator or umpire, 107, 108, 692. Silent as to one head of claim, 109. Promoters will not be ordered to take up, as to right of pre-emption of superfluous land, 331. Under Public Health Acts, 518—521. Under Housing of Working Classes Act, 1890, 592—594, 601—613. Under Metropolis Water Act, 1902, 634, 635. In form of special case under Metropolis Water Act, 1902, 634, 035. Form of notice of enlargement of time for, 057. Form of, by two arbitrators, 058. I'^orm of, by umpire, 059. Form of, in form of special case, 000. Power to correct, under Arbitration Act, 1889, 090. Power to remit, under Arbitration Act, 1889, ()91. Power to set aside, under Arbitration Act, 1889. 092. lOnforcement of, imdcr Ai'bitration Act, 18S0, (i93. Set aside or remitted on motion, 715. Time within which to apply to set aside, 716. JiuU'.c. 773 BANK, Meaning of, S, ;j.3S. Payment into, of compensation due to i)eisons iindiT disability, 34, 35, 190, 191, 211, 212. Mamhtinits to compel promoters to pay purcliaso-inoney into Court, 35, 191. Costs in case of purchase-money deposited in, 227, 22S. Cashier of, to give receipt to promoters for deposit, 264, 2()5. A^endor must bear loss, if any, of payment into special, 2<35. • Payment of deposit into, when office of Paymaster-General closed, 2G8. BETTERMENT, Principle of, 1S3, 1S4. Proviso in Light Railways Act, 1896, 184, 630. Valuation of premises showing an allowance for, 740 — ^742. Report of select committee of House of Lords on, 752—754. Specimens of clauses for, 754 — 762. BIAS, disqualification of justices on ground of, 12, 13. BILL, Withdi-awal of ojiposition to, specific performance of agreement in respect of, 21, 22. Compensation paid to tenant for life for not opposing, 213, 214. BOARD OF AGRICULTUR]-:, when application of purchase-money for common lands settled by, 294. BOARD OF TRADE, Appointment of iimpire by, 89, 90, 352, 424. Application to. for appointment of surveyor, does not bind promoters to take whole premises, 281. Appeal by owners to. against deviations, 364, 3(55. May order railway company to provide screen for road, 398. May modify construetioii of roads, bridges, &c., 399, 400. Certificate of, 400. AVarrant of, for abandonment of railway, 428, 429. May require bridge at level crossing, 436. May require railway company to take additional land, 436. Valuation bj' surveyor appointed by, 443, 444. A\'Tien sureties to be approved by, 443. Line of railway not to be altered without consent of company or, for works under Metropolis Management Acts, 497. Ai-bitrator nominated by, under Electric Lighting Act, 1882, 573. Consent of, necessary to bye-laws under Military Lands Act, 1900, 626. Form of appointment of umpire by, (557. Form of notice of intention to apply to, to appoint surveyor, 668. Foim of appointment of siu-veyor by, 669. BOND To be given by promoters who enter on land before payment of purchase-money, 254, 255. To be given by promoters who enter on land must be strictly in accordance with sect. 85, 260. To be given where claimants are tenants in common, 260. Fulfilment of condition of, 265. 774 liuliw. BOND — continued. Petition for payment out of deposit I)}- vendor wliere condition of, not fulfilled, 2G7. Eailway company entering on land need not give, for minerals, 414. Power to cancel, under Parliamentary Deposits and Bonds Act, 1S92, 616. Form of, entered into under sect. 85 of the Lands Clauses Consolida- tion Act, 1845, 670. BOOK OF REFERENCE, Lessee omitted from, 46, 362. Land omitted from, cannot be taken by promoters, 47. Where promoters are in possession of more land than in, ;)1.";. Errors or omissions in, 361, 362. Copies of, to be evidence, 363. Lateral deviation from, 36(), 367. BOROUGH COUNCIL Has replaced vestry, 485. May purchase land for purpose of Metropolis Management Act, 1855, 490. Disposal of land not required by, 492, 493. Appeal to Loudon Countj- Council by persons aggrieved by order or act of, 493. Not to alter railway line without consent of comjijany or Board of Trade, 497. Power to execute flood works, 499 — 505. BRANCH, Subscription of capital in case of, railway, 43. Power of owner or occupier to make private, railway. 409, 410. BRIDGE, Promoter may insist on purchase where expense of, exceeds value of land, 282. ' Over road for railway, 385, 388, 389. Over footpath, 385. Repair of roadwaj- on, 386. Width of, 390. Board of Trade maj' modify construction of, 399, 400. Compensation in lieu of repairing, 430, 431. Board of Trade may require, at level crossing, 436. London Count}' Council may make and maintain, 495. Is "engineering" work, 366. Alteration of level of approach of, 366. Construction of, 369, 372, 385, 388—390, 399, 400. Repair of, 369, 372, 385, 398, 399. BROKER, commission of, upon investment, to bo paid by promoters, 246. BUILDING, Application of purchase-money deposited to removing or replacing, 191. Reinvestment of purchase-money in, 194, 195, 237. Substitution of, 199, 238. Lessees under, agreement entitled to compensation, 253. Deposit by promoters where empowered to acquire part of, 259. Index. 775 BUILDING— co//f/» ue>J. Counter- notice to take whole, 259. Meaning of, 275. Construction of, by railway company, '3l]9. Owner cannot compel local aiitliorit}- to take whole, under Metro- politan Paving Act, 1817, 469. Valuation of front portion of proposed, 7-'^, 735. BUILDING PURPOSES, Land with prospective value fur. 142, 4().!. 404. Prohibition against using land for, revives on sale of land as superfluous, 325. Meaning of " land used for," 328, 329. BUEIAL GROUNDS, rector entitled to dividends of purchase-money deposited for, 206, CAPITAL To be subsciibed before compulsory purchase, 41. Entry on land before subscription of, 43, 255, 256. Provision as to subscription of, does not apply to extension of under- taking, 43, 45. Certificate of justices of subscription of, 44, 649. Non-subscription of, no answer to jaiotdamtts to issue warrant to sheriff to summon jury, 115. Investment of, under Settled Land Act, 699—702, 708—714. CATTLE, Railway company to provide fences against straying of, 400 — 400. Railway company to provide watering places for, 401. Includes pigs, 406. CEMETERIES CLAUSES ACT, 1N47, Construction of cemetery subject to Lands Clauses Act, 1845, 546, 547. Errors and omissions in Act may be corrected by justices, 547. Cemetery company may not dispose of consecrated ground, 54.S. Cemetery not to be within certain distance of houses, 548. Cemetery company may build chapels, 549. No road to be widened without consent, 549. Agreements by owners for improving roads, 549. Cemetery to be kept in repair, 550. Cemetery company to make compensation for damage, 550. CERTIFICATE Of justices that capital has been subscribed, 44, 649. Of justices conclusive that sect. 16 has been complied with, 44. Of justices as to errors or omissions from plan and book of reference, 361, 362, 451. Of Board of Trade as to modification in construction of roads, bridges, &c., 399, 4C0. CEBTIOIiABr, To quash order for postponement of in(iuiry, 117. Not gi-anted where party has waived defect in constitution of tribunal, 119. Where jury exceed jurisdiction, 125, 12(i, 127, 342. Time within which to ajiply foi-, 127. Proceedings cannot be lemoved by, for want of i'urni, 342. 776 Jn(h',i: CHALLENGE, Disqualification of jiuyman, remedy by, 117. Against jury, 1 18, 472. Parties may not, array, 118. Of special jvirymen, i;J6. CHAMBERS, application for dividends may be made at, 205. CHARITY, Purcliase-money of land belonging to, reinvestment of, 198, 199, 206. Payment out to trustees of a, 201. Consent of Commissioners not required to application for reinvest- ment of money paid for lands of, 206. PajTnent to trustees of dividends of purclaase-money for lands of, 206, 217. Costs where trustees of, refused to receive purcliase-money, 2.'}2. Costs rendered necessary by reconstitution of, 242. CHURCH, Purchase-money for churchyard, application of, 19.), 206. Lease of, lands taken by promoters, 217. CLAIM. See Fdrticalars of Claim. Particulars of, must give reasonable information, 72, 7.'i, 177. Where amount does not exceed £50, 76. Agreement to refer to arbitration claim under £50, 76. Amount of, determines procedure for assessing compensation, 76. Exceeding £50, 77, 78. Agreement to refer, to arbitration, costs, 95. Costs where owner recovers more than offer under one head of, 99. In two parts, costs where, 99. Where award silent as to one head of, 109. Where award gives one sum to include several heads of, 109. Adverse to claimant by the Crown, 225. Form of, 642. CLAIMANT. See (hn,er, Vctxior. With sejjarate interest entitled to separate assessment of comi)onsa- tiou, 114. Assessment of compensation where, fails to appear at in(juiry, 120. Not entitled to costs if verdict set aside, Kil, 190. Recovery__bj', of less than amount ofi'ered, 1132. Costs payable bj', 1 34. Court will not restrain assessment of compensation on ground that, has no title, 188. Assessment of compensation where, fails to make a title. 220, 221. Payment out to, after decree of siiecitic i»erl'ormance against promoters, 224. Where interest of, less than claimed, 224. Claim adverse to, by Crown, 225. Costs in case of litigation between adverse, 227, 228, 241, 24 2, 2 I. "5. Costs where promoters take conveyances frcjm rival, 243. Cannot recover costs where solicitor uncertificated, 354. Form of notice by, that he desires com]icns;itif)n assessed by arbitral ir, 651. Iiuh:r. Ill CLAY, not resolved under sect, 77 of Railways Clansos Aet, lS4o, 412, 413. CLERK OF PEACE, Plans and sections deposited with, nut incorporated in special Act, 45, 46. Verdict and judgment of inquisition to be kept by, I'i'i, \T-i. Deposit with, of all authorised alterations before construction of railway, 3(52, 3(53, 452. COLLATERAL PURPOSES, land may not be taken for, 48—50, 454. COM^^nSSIONERS, may be promoters, (5. CO^MMISSIONERS OF SEWERS, powers for executit)n of flood works, 499—505. COMMITTEE Of lunatics, sale of land by, 28, 34, 190. 191, 193. 470. 471. Of lunatics, payment of purchase-money under £'200 to, 211. Death of one of, of lunatic, 240. Of parties interested in common lands to settle compensation with promoters, 292, 293, 550. COMMON LANDS, Compensation for, to be paid to lord of manor, 289. Comi^ensation to lord of manor as tru.stee for inhabitants, 290. Deed poll in default of conveyance of, 290. Entrv by promoters on, without i)ayiug compensation to commoners, 290. 291. Compensation for, not held of a manor, how ascertained. 291, 292, 294, 295. Committee of parties interested to treat with prouKjters for compensation for, 292, 293. Application of purchase-money for, 293, 294. When Board of Agriculture to determine application of purchase- money for, 294. Committee may be compelled to distribute the compensation for, 294. Right of common in, must have legal existence, 294. Costs of successful claimant to purchase -money for, 294. Surveyor to settle compensation if no committee ajipointed, 295. To vest in promoters on payment of compensation, 295. Application of compensation under Inclosiue Act, 1852, 550. 551. Application of compensation luider (.'ommonable Rights Compensa- tion Act, ooo — 557. COMMONABLE RIGHTS COMPENSATION ACT, 1882, Application of compensation for common lands under, bbb—bb~. Application of compensation money for recreation grounds, 557, 558. COMMUNICATIONS With another railway company, 437. 438. Between sewers in metropolis, 495, 49(3. COMPANY Cannot ratify agreement for piu-chaf, , For lauds taken after having been omitted by mistake, 616, .>14. For lands omitted to be purchased by mistake. 315, 316. To owners, &c., on construction of railway, 359, 360, 369, 3<0. For damage to goods, 360, 361. For damage to gas or water company, 376. Payable bv railway company for temporary use of private roads, 3<7. Payable by railway company for land temporarily occupied. 3S3, 384. For obstruction to private right of way, 392. 393, 394. To owner or occupier in lieu of accommodation works, 401, 402. 40o, 409. For mines and minerals, 414, 416. , , ,, Eailway company to make, to owner of mines for injury, 4'_0, 411. For injury to mines to be settled by arbitration, 420, 421. For making passage under railway for mines, 422. To owner of surface land over mines, 422. Claims to, to be advertised for on abandonment of railway, 428. To owners, &c., on abandonment of railway, 429, 430. In Ueu of accommodation works on abandonment of railway, 430. In lieu of restoring roads on abandonment of railway, 430, 431. To trustees of public roads on abandonment of railway, 431. ' To be settled bv'arbitration in case of abandonment of railway, 431, 431. In case of abandonment of railway to be claimed within six months from warrant, 431, 432. For land taken for requirements of Board of Trade, 436. To owners, &c., for extension of time, 438. For minerals under Waterworks Clauses Act, 184T, 450, 156—462. For support to pipes of gas company, 465. For property in one notice must be assessed together, 470. Costs of assessing, under Metropolitan Paving Act, 1817, 473, 474, 478, 479. '^ For work done in connection with sewers, 487, 489. Must be paid for support for sewers, 489, 490. Under Metropolis Management Act, 1855, how assessed, 494. For making communication between sewers in metropolis, 49o, 4Jb. For lands acquired for flood works in metropolis, 501— 50o. For land acquired by parish council, 507—510. For land hired by parish council for allotments, 510—512. Under Public Health Acts to be settled by arbitration, 51 ^— o21. Claim for, under £20, under Public Health Act, 1875, 521. For damage by local authority, 523. For discharge by sewers, 524. For manhole on private land, 525. For land taken under Allotments Act, 1887, 530—532. Under Markets and Fairs Clauses Act, 1847, 535, 537. ^ Under Towns Improvement Clauses Act, 1847, 544, 545. Under Cemeteries Clauses Act, 1847, 550. AppHcation of, for common rights under Inclosure Acts .joO-oo,. Application of, for common rights under Commonable Eights Lo.n- pensation Act, 1882, 555 — 558. For disused burial ground, 570. For damage under Electric Lighting Act, 1882, 573. _ Under Housing of Working Classes Act, 1890, 582-^84, obo-obJ, 592—594, 600, 601—613. Settlement of, under Military Lands Act, 1892, 617, 623. 782 Index. COMPENSATION— co;i^-;.»fr/. How settled under Light Railways Act, 1 S96, 630. To water companies under Metropolis Water Act, 1902, 632 — 636. Fonn for assessing, by justices, 650. Form of notice desiring, to be assessed hj arbitrator, 651. Form of siimmons to appear before justices to assess, 674. Specimens of valuation made for the purpose of assessing, 725 — 742. co:mpulsory powers. Capital to be subscribed before exercise of, 41. Notice to treat not necessarily exercise of, 41, 311. Conferred on public bodies to be construed liberally, 53. Promoters may not contract not to use, 54, 152. Notice to treat may be given before expiration of, 57 — 60. Land taken after expiration of, 69. Assent to counter-notice after expiration of, 70. In case of counter-notice promoters need not wait twenty-one days before putting in force, 74. Entry on lands under sect. 85 not an exercise of, 256, 311. Limit of time for exercise of compulsory purchase, 311, 313. Where nothing done under notice to treat before expiration of, 312, 313. Land piu-chased under, may be superfluous, 320. Railway company may piu'chase minerals before expiration of, 414. Limit of time for exercise of, to pui'chase under Military Lands Acts, 627. CONSENT Of remaindermen, 204, 205. Of Charity Commissioners, 206. Of owner to entry for survey, 252, 253. Of justices to level crossing, 385, 396. CONSEQUENTML DAMAGE, valuation showing, 735. CONSTRUCTION, Injury must be caused by, not by user, 166 — 170. Railway companj^ may take land temporarily during, 377 — 384. Of bridges over roads, 388, 389. Of bridges over railway, 389, 390. Board of Trade may modify, of roads, bridges, &c., 399, 400. CONTRACT. See Agreement. Ry corporation must be under seal, 19, 20. Specific performance of, 20 — 23. By promoters of company to pay for support in ParHament ultra vires, 20. By ui'ban distiict council, 21. By parish council, 21. When complete, 21. Provisional, to take land for railwaj-, 439, 440. By promoters binding on railway company, 442. CONVEYANCE, Trustee for equitable tenant for life necessary party to, 30. By husband and wife, 31. Trustee must join in, with married woman with life estate, 32. Index. 783 CONV'EYAXCE— co/<ation on, in Court, 222. Costs in case of, of piu-chase-money in Coiu-t. 227, 22S. To be made by promoters before entry on lands, 254, 255, (JOT. Must include compensation for severance and injurious afl'ectiou, 258. Of value of easement, before entry on land for making tunnel, 259. "^Tiere promoters empowered to take part only of buildings, 259. Promoters cannot, value of less land than in notice to treat, 61, 259. Where land valued at an amount exceeding that of, 261. In Court to be placed in name of Paymaster-General, 264, 265. Vendor must bear loss, if any, of, in special bank, 265. To be dealt with under direction of Court, 265. Applications regarding, when made by summons, 265. Amount of, in Court not to be charged with costs, 266. Petition by vendor for payment out to him of deposit, 267. Abandonment of pui'chase by promoters after, 267, 268. Payment of, when office of Paj-master-General closed, 268. Mortgagee has no lien on, 297. Of mortgage money by promoters, 298, 299, 300, 301. In case of refusal to release land from rent-charge, 303. Of plans of authorised alterations before construction of railway, 362, 363. Of plans of authorised alterations before construction of waterworks, 451. Of plans of authorised alterations before constructing harbours, piers, or docks, 539, 540. Of plans by local authority luider Housing of Working Classes Act, 1890, 601. Power to release, under Parliamentary Deposits and Bonds Act, 1892, 614, 615. DEVIATION, Injunction to restrain promoters taking land beyond limits of, 47. Where promoters purchase premises beyond limits of, they must make good deficiency in poor-rate, 333, 334. Limit of, from datum line in making railway, 363, 364 . Public notice to be given before making, 364. Appeal to Board of Trade by owners against, 364. Limit of, from curves, gradients, &c., 365, 366. 790 Index. DEVIATION— COHy- hold, 28j, 287. FIXTUEES, Eails and sleepers, wben, 39. Promoters must pay compensation for, 152, 27G, 277. FLOOD WOEKS, Powers to local authorities in ^Metropolis for execution of, 499 — 505. FOOTPATH, Diversion of, 369 — 371. Bridge over, 385. Narrowing of, 390. Power to divert, under Military Lands Act, 1892, 622. FOEM, For conveyances vmder the Lands Clauses Acts, 246, 247, 345, 346. Of order in action by owner of rent-charge, 262, 263. Proceedings not to be quashed for want of, 342. Award not set aside for error in, 106, 426. For lodgment of funds in Coui-t, 718, 719. FOEMS AND PEECEDENTS. See pp. 639, 640. FEEEHOLD, Land, valuation of, 728. Houses, valuation of, 729. Wharf, valuation of, 733. GAEDEN forms part of house, 273, 274. GAENISHEE, Pm-chase-money cannot be attached by, before conveyance, 104, 105, 123. Order after execution of conveyance, 105. GAS, Injunction to restrain nuisance by, company, 173. Alteration of, pipes by railway company, 375, 376. Eailway company to make good damage to, company, 376. 794 ludrj: GAS — coidi lined. Penalty on railway company for obstructing supply of, 376. Gasworks Clauses Act, 1871, applies to every undertaking, 464. Company entitled to support for pipes, 465. T^Tien to be construed as electricity, 572. Valuation of land taken by a, company, 735. GAS AND WATEE FACILITIES ACT, 1870. Incorporation of Lands Clauses Acts, 463. GASWORKS CLAUSES ACT, 1871, Ajjplies to every gas undertaking, 464. Incorporation of I/ands Clauses Acts in, 464. Sale of superfluous lands under, 464. Undertakers not exempt from indictment for nuisance, 464. Construction of, in Electric Lighting Act, 1882, 572. GENERAL PURPOSES RATE, ^Vhat it includes, 337, 338. Where special Act makes promoters liable for deficiency in, 337, 338. GLEBE, Redemption of land tax with puvcbase-money of, 194. Payment off of rent-charge on, 196. GOODS, compensation for damage to, 360, 361. GOODWILL, Of trade premises passes to mortgagee unless dependent on personal skill of mortgagor, 63, 142. Compensation for, 140, 141, 200. Mortgagee in possession entitled to compensation for, 63, 142, 200, 299. GRADIENTS, limits of deviation from, 365, 366. GUARDIAN, Sale of land by, 28, 470, 471. Notice to treat must be served on, of infant, 71. Compensation monev payable to, to be deposited in bank, 190, 191, 193. Payment of purchase-money under £200 to, 211. HARBOURS, DOCKS, AND PIERS CLAUSES ACT, 1847, Construction of harbour, dock, or pier subject to Lands Clauses Acts, 538. What included in, 539. Errors and omissions in i)lans may be corrected by justices, 53;». Plans of alterations to be deposited, 539, 540. Limits of deviation from plans, 540. Construction of works on seashore, 540 — 542. Purchase of land under, for extraordinary purposes, 542. Power to construct wharves and warehouses, 542. HEREDITAMENT, Meaning of, 9. Tunnel a, 9. lncor])oreal, 9, 10, 18, li), oo. Luh'x. 795 HEREDITAMENT— fo/,;/»»f(^ Annuity a. 10. Ferry a, 10. Includes incorporeal, 10. Variance in description of, in notice to treat, 66. HIGH BAILIPF substituted for sheriff in Westminster, 11, 112, 3.31. HIGH COURT cannot order new trial, 446. HIGH WATER MARK, works of railway below, 374. HOSPITAL, substitute for, taken, 199. HOUSE, Included in messuaj^e, 9. Damage to, by alteration of level of street, 160. Loss of access to river, 1 60. Copyhold, application of purchase-money deposited to, I'Jo. Owner not compelled to sell part of, 271, 585 — 589. What is included in term, 271 — 274. Private road that does not pass on conveyance of, 274. Pi'omoters must take whole, where part sublet, 278. Land not appurtenant to, at time of notice to treat, 278. Built on land after notice to treat, 278. Meaning of " part of a," 278. Held under two demises, 278, 279. With internal communication to another, but under sejiarate lease, 279. Owner cannot compel local authority to take whole, under Metro- politan Paving Act, 1817, 469. Local authority may acquii-e, or part of, under Housing of Working Classes Act, 585 — 589. Valuation of freehold, 729. HOUSING OF WORKING CLASSES ACT, 1890, Requisites of imjirovement scheme of local authority, 575, 57(). Local authority maj' take land, 576, 580, 596, 597. Publication of notices hj local authority, 576, 577. Making and confirmation of provisional order under, 577, 578. Local authority to carry scheme into execution, 579, 580. Completion of scheme on failure by local authority, 580. Notice to occupiers, 580, 581. Power of confirming authority to modify scheme, 581. Provisions regulating acquisition of land, 581, 582. Incorporation of Lands Clauses Acts, in, 582, 587, 591, 59'5. Special provisions as to compensation, 582 — 584, 592 — 594. Extinction of rights of way and other easements, 584, 585. Application jf lands for accommodation of working classes, 585, 592. Meaning of " owner," 585, 586. Power of local authority to purchase houses or parts of houses, 586 — 589. Improvement rate under, 588. Dedication of land acquired by local authority as highway, 589. Scheme for reconstruction under, 589 — 592. WTiat included in " lodging houses for working classes," 594, 595. Adoption of, by rural sanitary authority, 595, 596. 706 Imhw. HOUSING OF WOEKING CLASSES ACT, ISdO— continue J. Purchase and erection of lodging houses by local authority, 597. Sale and exchange of lands by local authority, 597, 598, 599. Limit of area to be dealt with under, 598. Where medical officer reports dwelling houses as dangerous, &c., 598. Amendment of Settled Land Act, 1882, as regards buildings for working classes, 599. Power to local authority to enter and value i^remises, 600. Compensation to tenants for exjiense of removal, 600. Provisions as to compensation for lands taken otherwise than by agreement, 601 — 613. Deposit of maps and plans by local authority, 601. Provisions as to appointment of arbitrator, and as to arbitration under, 601—613. Power of arbitrator as to aj^portionment, 604. Payment of purchase-money under, 605. Compensation for omitted interests under, (504, 605. Entry on land on making deposit, 607 — 609. Ajipeal against award under, 609 — 611. Costs of arbitration under, 611, 612. HUSBAND, Conveyance by, and wife, 31. Payment of purchase-money under £200 to, 211. IMPROVEMENT, "Where sj)ecial Act provides compensation for certain, 5. Scheme for, by local authority under Housing of Working Classes Act, 575, 576. Eate under Housing of Working Classes Act, 1890, 588. Authorised by Settled Land -Acts, 703—706, 710—714. By tenant for life under Settled Land Acts, 705 — 70S. INCAPACITY of arbitrator, 88, 424. INCLOSUEE ACT, Application of purchase-money to expenses inciu-red under, 194, ooo, 554. Application of compensation for common rights under, 550—557. Costs of inclosure commissioners, 553, 554. INCLOSUEE COMMISSIONEES, Now Board of Agriculture, 552. Costs of, 553, 554. INCOEPORATION of Lands Clauses Acts in other Acts, 4, 5, 14, 15. l(i. 17, 18. INCOEPOEEAL HEEEDITAMENTS, Defined, 9, 10. Included in "hereditaments," 10. "Lands" include, 18, 19, 55, INCUMBEANCE, Application of compensation in discharge of, 191. Old lease an, on improved lands, 197. Costs ia case of inability of owner to clear off, 232. Iiuh'.,: 797 INCUMBEANCE— cr,ji^-« verl. Costs of discharging, 239. rayment off of, by tenant for life, 239. INCUMBRANCER, Lessor with right of entry an, 197. Service on, of petition for investment, 206, 207. May apply for payment, out of fund in Conrt, 222. Unpaid lessor is an, 239. Costs of, on iia^-ment out of Coiut, 242. Cost of serving, on petition for interim investment, 245. Should be made party to action by vendor to enforce lien, 2(54. INFANT, Notice to treat must be served on guardian of, 71. Compensation payable to, to be deposited in bank, 190, 191. INJUNCTION, To restrain promoters from makmg portion only of undertaking, 43, 44. Grounds upon which granted, 44. At instance of Attorney-General, where public interests affected, 46. Landowner not entitled to, on ground of possibility of damage, 46. To restrain promoters taking land beyond Hmits of deviation, 47. Will be granted if land taken for collateral purpose, 49. To restrain sale of land after notice to treat, 65. To restrain trespass by promoters, 67. Refused in case of hona fide mistake, 68. Refused where arbitration abortive, 68. To restrain trespass refused where question one of title, 68. To restrain arbitration proceedings, 86. To restrain action for enforcing award, 104. To restrain nuisance by promoters, 173, 379. Will not be granted to restrain promoters, acting intra vires, from causing damage, 185, 186. Court will not grant, to restrain assessment of compensation on ground that claimant has no title, 188. Refused on grounds of inadequacy of valuation of surveyor, 262. Where promoters have entered without taking whole of premises, 277. Refused after delay on part of landowner, 280. In case of capricious deviation from deposited plan, 368. Against promoters for unauthorised act, under Waterworks Clauses Act, 1847, 450. INJURIOUSLY AFFECTING Lands, where special Act provides compensation for certain improve- ments only, 5. Fen-y by construction of bridge, 10. Land in possession of persons vuider disability, 35. Compensation for easements as for, land, 55. Where compensation claimed for, does not exceed £50, 76. Sect. 23 applies to, lands, 78. Lauds, when compensation for, may be assessed by justices, 76, 81, 82, 83. Costs of arbitration proceedings in case of, lands, 95. Damages for, to be separately assessed, 121. Land -which promoters are not entitled to purchase, 144, 145. 798 Index. INJUEIOUSLY A¥F:KCT1-NG— continued. Land used foi" rifle rauge, 146. Land of riparian owner, 146. Assessment of compensation for, land, 154, 155. Land in execution of works, 158. Land by level crossing, 162. Injury must have been actionable before special Act, 163. Sewers, 165, 166. Injury must be caused by construction, not by user, 166 — 170. Time for making offer of compensation in case of, lands, 177. Future damage to be considered in assessing compensation for, land, 178. Projierty acquired after notice to treat, 179. Land not included in demise, 182. Land by noise of school, 182. Costs of assessing compensation for, lands, 190. Open space, churchyard, cemetery or burial ground, 570. Fonn of demand for arbitration in case of, land, 652. INQUISITION, To be held where land situate, 116. Sheriff may not postpone, 117. certiorari to quash order for postponement of, 117. Not invalidated on ground of disqualification of a juryman, 117, 118. Sheriff to preside at, 118, 119. Costs of, how borne, 129. More than one, before same special jury by consent, 136, 137. Costs of, in case of intersected lands, 283, 284. INTEREST, Disqualification of justices on ground of liecuniary, 12, 13. Of justice, waiver by parties, 13, 358. On unpaid purchase-money, 24, 25, 189, 214. Not payable after payment into Court, 25. Where possession taken before price fixed, 26. Not payable where completion delayed by vendor, 27. Where award outside Lands Clauses Acts, 27. Higher rate of, where purchase not completed by certain date, 27. Disqualification of sheriff on ground of, 113, 114. Jury may not award, 125. Of landowner to be valued rehns sic stantihus, 139, 140. On compensation awarded, 189. Tenant for life allowed to receive, on purchase-money, 214. Of tenant for life on compulsory sale of lease, 215 — 218. Payable under sect. 85, 261. Payable to mortgagee in lieu of notice, 298. Adjoining owner includes person with limited, in land, 327. To cease on refusal of mortgagees to convey under Metropolitan Paving Act, 1817, 480, 481. INTEREST IN LANDS, Notice to treat must be given to all parties with, 45, 02. Of owner at time of notice to treat, 61. Separate notice to treat to be given for separate, 64, 114. What is sufficient description of, for particulars of claim, 72 — 74, 177. Index. 799 INTEREST IN J.Xy^BS—amtinaed. Compensation for, to be given rebus sic stanilhas, 139, 140. Sporting rights are an, 162. Wliere terminated before prospective injury, 184, 185. Where claimant has smaller, than claimed, 224. Tenant with, 63, 253, 309. Omitted, under Housing of Working Classes Act, 1890, 604, 605. INTERSECTED LANDS, Owner of, may require promoters to purchase, 281 — 283. When jiromoters may insist on purchase of, 282. Costs of proceetlings before jury in case of, 283, 284. Costs of arbitration in case of, 284. ESTN'ESTMENT, of capital monies under Settled Land Act, 699—702, 708—710. INVESTMENT OF PURCHASE-MONEY. See Rtinvestment. By order of the Court, 203, 204, 222. Securities for, 203, 204. Tenant for life proper person to apply for, 204, 205. Petition for interim, 206. Of lease of church lands, 217. Of leasehold in copyholds, 219. Of freeholds in leaseholds, 234. Of leaseholds in freeholds, 234. Costs of change of, 236. Of funds in addition to those paid by promoters, 236. Cost of serving incumbrancer on petition for, 245. Where lord of manor is tenant for life, 288. Costs of, 227, 228, 302. IRREGULARITY, tender of amends for, 339. ISLE OF MAN, reinvestment in land in, 199. JUDGE, Compensation assessed by, and jury, 80, 112, 445, 446. Where verdict set aside trial cannot take place before, 117, 118. And jury cannot go into question of title, 446. JUDGMENT, At inquisition to be signed by sheriff, 122, 123. May be inspected, 123. Verdict and, of inquisition do not create absolute debt, 123. Question of title to be raised in action on, 124. Recording of, not condition precedent to its validity, 125. Amount cannot be questioned in action on, 126. Verdict and, may be enforced by action or specific performance, 128. Form of verdict and, 665. JUNCTION with another railway, how made, 437, 438. JURISDICTION, Arbitrator exceeding his, 106, 107. Certiorari where jury exceed, 125, 342. 800 Iii<]rj: JURISDICTION— coHf/// imJ. Excess of, may be proved by affidavit, 126. Must appear on face of proceedings, 127. Acquiescence will not give, 127. Of Court to award costs, 229—231, 240. Limit of, of justices as to accommodation works, 406, 407. Court will refuse to exercise concurrent, with justices, 40(>, 407. JUEY, Where land in city, undertaking in country, 11, 12, One, to assess property in notice to treat, 66. Claim for compensation over £50, wben settled by, 77, 78. Can only award money compensation, 79. Cannot inquire into title, 79, 80, 123, 446. When compensation assessed by judge and, SO, 445, 446. Compensation to be assessed hj, if arbitration proceedings fail, 82, 115. Notice by iiromoters of intention to summon, 109. Promoters to issue warrant to sheriff to summon, 112. Proceedings before, may be quashed on ground of interest of sheriff, 113. How summoned, 116. Mandamus to sheriff to summon, 116, 117. Where verdict set aside sheriff must summon fresh, 117. Where verdict set aside trial cannot take jjlace before judge and, 117, 118. Insufficiency in number of, 118. How imiwnnelled, 118, 471. Challenge against, 118, 472. Trial before less than twelve, 118. Penalty on, for default, 119. Sheriff to administer oath to, 120. May affirm, 120. Can only assess value of leasehold interest, 123. Cannot consider collateral matter, 125. May not award interest, 125. Certiorari where, exceed jurisdiction, 125, 342. Costs of inquiry before, 129. Where verdict of, set aside, claimant not entitled to costs, 100, 131. Not entitled to know amount of offer, 132. To assess compensation for lands injuriously affected, 154. Action for compensation where promoters fail to summon, 186, 187. Costs of inquiry before, in case of intersected land, 283. Compensation for common lands, when settled by, 294, 295. Impannelling, under Metropolitan Paving Act, 1817, 471. Fine for non-attendance of, 474, 475. Form of notice demanding a, 661. Form of notice of intention to summon, 661. Form of warrant to sheriff to summon, 662. Form of notice for special, 663. JUEYMAN, Disqualification of, 117, 118. Challenge against, 118. Need not attend more than once a year, 137. Iiidr.c. 801 "JUSTICES," Definition of, 8, 3o7. Area of jurisdiction, 12. With pecuniary interests tlisqualitied, 12, 13. Disqualified if jiossibility of bias, 12, 13. Withdrawal of interested, 13. With interest, waiver by parties, 13, 358. Metropolitan police magistrate has same power as two, 14. Stipendiary magistrate has same power as two, 14. Compensation assessed by, 14, 7(3, 82. Certificate of, that capital subscribed, 44. Where compensation claimed d(jes not exceed £jO to be settled by two, 76. Mundujiius where, refuse to act, 77. Cannot decide question of title, 77, 83. Costs of assessing compensation by, 82. Must take into consideration damage caused by severance, &c., S3. Are court of summarj' jurisdiction when assessing compensation, 83. May give their decision verbally, 83. Declaration by arbitrator or umpire before, 95. Wan-ant of, for recovery of costs by distress, 134. Duty of, ministerial on application for distress warrant, 134. Cannot question allocatur of master, 134. Surveyor nominated by two, 137. To award compensation for damage by sevei-ance, &c., 138, 139. Decision of, in action for penalty not conclusive of rights of pi'omoters, 270. Apportionment of copyhold rents by, 289. Compensation for common lands, when settled by, 294, 295. Api^ortionment of rent under lease by, 304, 305. Comiiensation to tenant from year to year to be made by, 306 — 311. May give decision under sect. 121 verbalh^, 310. Eecovery of penalties before, 339, 398. Ai)peal to quarter sessions from decision of, 343, 396, 397. Certificate of, as to errors or omissions from plan and book of reference, 361, 362, 451, 535, 536, 539, 544. Consent of, when necessary for deviation from plan, &c., 363, 364. Power of, where railway company wish to take lands temporarily, 380—382. Question of rej^aii' of roads by railway company to be determined bv, 395, 396. Consent of, to level crossing, 385, 396. Power of, to order approaches and fences at level crossing, 397, 398. Power of, to order railway company to repair bridges, 398, 399. Differences as to accommodation works to be settled by, 400, 407. 455. Court will refuse to exercise concurrent jurisdiction with, 406, 407. May direct a view under Metropolitan Paving Act, 1817, 472. May impose fine for non-attendance, under Metropolitan Paving- Act, 1817, 474, 475. Have no power to state a case under sect. 308 of Public Health Act, 1875, 522. Form of application to, to appoint surveyor, 648. Form of appointment of third surveyor by two, 649, 667. Form of certificate of two, that capital has been subscribed, 649. L.C. 51 802 Imhw. "JUSTICES "—continued. Form for assessment of compensation by two, 6<50. Form of nomination of surveyor by, under sect. 59, 667. Form of summons to appear before, to apportion rent, 672. Form of api:)ortionment of rent by two, 673. Form of summons to appear before, to assess compensation, 674. LANCASTEE, land belonging to Duchy of, 441, 517. LAND, Injuriously affected where special Act provides compensation for certain improvements only, 5. What included in, 7, 8, 9, 55, 356. Injuriously affected situated in city, undertaking in country, 11, 12. Piu'chased by agreement, IS, 192. Purchase of minerals under, 19, 65, 360, 414. Agreement for purchase of, before incorporation of company, 20. Contract for purchase of, under sect. 30 of Eailways Construction Facilities Act, 1864, 20. Time for taking, under agreement, 20. Agreement to sell land on conditions, specific performance of, 22, 23. Sale of, by persons under disability, 28, 29, 470, 471. Sale of, by corporations, 29. Of one com2)any acquired by another, 30. Where owner has had no notice of intention to ajiply to Parliament for power to acquire, 30. Consecrated, cannot be used for secular purpose without authority of Parliament, 30. Sale of, by married woman, 28, 31. In possession of receiver, 32. Where trustee has bare power of sale with consent of tenant for life, 32. Taken imder compulsory powers, lessee not liable for breaches after, 33. Of hmatic, sale of, 28, 34, 192, 302, 303. Injurious affection of, in possession of persons under disability, 35. Sale in consideration of rent-charge by vendor absolutely entitled, 37, 38, 348, 349. Sale in consideration of rent-charge by person under disability, 317, 348. Power of re-entry, in case of sale in consideration of rent-charge, 38. Eight to distrain, notwithstanding appointment of receiver, 39. Pui'chase of, for extraordinary purposes, 39. Sale of, purchased for extraordinary pvu-poses, 40, 320, 384, 385, 536, 542. Acquired for extraordinary' purposes not superfluous, 40, 320. Sale of, by municipal corporations, 40. Capital to be subscribed before compulsory purchase of, 41, 115. Entry on, before capital subscribed, 43, 255, 256. Notice to treat for, 45. Owner not entitled to injunction on ground of possibility of damage to, 46. Outside that delineated on plan cannot be taken by promoters, 47. Promoters sole judges if the}' will take, 48. May not be taken for collateral purpose, 48 — 50, 454. Public bodj' allowed to take more than required, 53, 54, 334. Index. 803 LAND — continued. Agreement by public body to exchange, 54. Promoters cannot enter upon less, than in notice to treat, 61, 259. Interest di owner in. at time of notice to treat, 61. All parties interested in, entitled to a notice to treat, 62. Owner of, adjoining public street, 64. Disused pipes do not constitute an interest in, 63, 64. Promoters may give more than one notice to treat for, 64, 65. Owner cannot deal with, after notice to treat, 65. In precept to sheriff must be same as in notice to treat, 66, 115. Where no notice to treat promoters are trespassers on, 67. Taken after expiration of compulsory powers, 69. " Leasehold interest " insufficient description of interest in, 72, 73. "WTiere compensation claimed for, does not exceed £50, 76. Where compensation claimed exceeds £50, 77, 78. Particulars of, need not appear in warrant to sheriff, 115. Inquisition to be held where, situate, 116. Compensation for, and for damage to be separately assessed, 121, 122. Damages for severance where, not contiguous, 121. Offer in case of, to be taken, 129, 130. Offer in case of, already taken, 129, 130. Valuation of surveyor to be produced to owner of, on demand, 138. Compensation to be awarded for damage by severance, &c., 139, 140, 143, 144. Compensation for. where subject to restrictions as to use, 140. Compensation for, with prospective value for building, 142, 403, 404. Compensation where money expended on, 143. Compensation where seam of coal likely to prove profitable in future, 143. Compensation for special adaptability of, 143. Injiu-iously affected not confined to land which promoters are entitled to purchase, 144, 145. Damage to, by proximity of railway, 145. Used for rifle range injuriously affected, 146. Of riparian owner injui-iously affected, 146. Purpose for which taken must be considered in assessing damage for sevei'ance, 146. Promoters are not bound to purchase right of pre-emption over adjoining, 146. Compensation to owner for expulsion from, 147. Failui-e to take, after notice, 148. Owned by public body vrith statutoiy rights, 149. Compensation for, held under lease with beneficial covenant, 150. Compensation for, where lease contains convenant for renewal,^ 151. Compensation for, where lease contains proviso for re-entry, 151. Assessment of compensation where, injuriously affected, 154. Owner must initiate proceedings where promoters have entered upon, 155. To recover compensation there must be a physical interference with, 156. Loss of access to, 156 — 162. Compensation for obstruction to access of light and air, 157. Injuiy to, in execution of works, 158. Vfhere owner of, suffers damage beyond rest of public, 159. Injm-iously affected by level crossing, 162. 51 — 2 80-1 Index. LAND — continued. Compensation for loss of sporting rights over, 1G2. Damage to, must be caused by construction and not by user of works, 166—170. Damage to, from unauthorised works, 170 — 173. To obtain compensation for loss of profits there must be damage to, 142, 147, 158, 173—176. Compensation not recoverable for i)ersonal iuconvenience of owner of, 173-176. Time for making offer of compensation in case of injuriously affecting, 177. In assessing compensation for, future damages to be considered, 178. Injurious affection of, acquired after notice to treat, 179. Not included in demise, compensation for injurious affection of, 182. Injuriously affected by noise of school, 182. Promoters liable for compensation for breach of restrictive covenant affecting, 182. Compensation for prospective injury, 184. In assessing compensation yearlj- rent may be basis of value of, 18j. Entry on, gives landowner a right of action for compensation claimed, 187. "What constitutes a " taking " of land, 187, 188. Costs of assessing compensation for, injuriously affected, 190. Application of purchase-money deposited in jDurchasing, 191. Belonging to college, 195. Purchase-money of, belonging to charity, 198, 199, 206. Eeinvestment in, in Isle of Man, 199. Reference as to title on reinvestment in, 207. Tenant for life entitled out of purchase -money to cost of valuing, 214. To be conveyed to promoters on deposit of purchase-money or compensation, 219, 220. To vest in promoters upon execution of deed-poll, 219, 222. Cost of reinvestment in land of money in Court, 227, 228, 234, 235. Subject to a suit, costs of taking, 233. Costs of refei'ence to master where, taken, 233, 235. Proceeds of leasehold, reinvested in freehold, 234. Where promoters not ordered to pay costs of reinvestment in, 236. Eemuneration of solicitor upon reinvestment in, 246. Form for conveyance of, under Lauds Clauses Acts, 247, 248. Effect of conveyance of, under Lands Clauses Acts, 247, 248. Promoters to pay or deposit purchase -money before entrj^ upon, 252—255. Promoters may enter on, for jiurpose of survey after notice to owner, 252. Entry on, where only easement required by promoters, 254, 259. Promoters must fulfil statutory conditions before entering on, 257. Entry on, under sect. 85 may be made at any time before time fixed for completion of undertaking, 257. Owner cannot bring action to recover, after entry by promoters after notice to treat, 258. Promoters cannot deposit value of less, than in notice to treat, 259. Two sureties required under sect. 85 when, taken by corporation, 260. No surety required when, taken by the Crown, 260. Valued at an amount exceeding that deposited, 261. Index. 805 L.VND — confin ueil. Penalty on promoters entering on, without consent or payment of pnrcliase-money, 268, 26f», 270. Proceedings by promoters in case of refusal to deliver possession of, 270, 271. Within curtilage of " house," 273, 274. Enclosed within wall of manufactory, 276. Injunction where promoters have entered without takin"- whole of, 277. Not appurtenant to house at time of notice to treat, 278. House built on, after notice to treat, 278. Owner of intersected, may rcquii-e promoters to purchase, 281 — 284. When lu-omoters may insist on purchase of intersected, 282. Cost of inquiry before jury or arbitration in case of intersected, 284. Enfranchisement of copyhold, 285, 286. Compensation for common, 289 — 296. Where promoters enter on, without providing for mortgagees, 259, 297. Mortgagee entitled to assignment of, in default of payment, 297. Sum to be deposited by promoters where mortgage exceeds value of, 298, 299. Sum to be paid where part of mortgaged, taken, 300, 301. Eelease of, from rent-charge, &c., 302—304, 564. Deposit in case of refusal to release, from rent-charge, 303. Eent-charge to continue on, not taken, 303. Agreement to sell, to promoters if they should requii-e it, 312, 313. Limit of time for compulsory purchase of, 311 — 313. Promoters may purchase, where omitted by mistake, 313, 314. 315. Where promoters are in possession of more than in book of reference, 313. Compensation for, omitted to be purchased by mistake, 315, 316. Sale of superfluous, 316, 321, 324. What is sujierfluous, 316 — 326. Under railway constructed on arches is not superfluous, 319. Purchased for extraordinary purposes not superfluous, 320. Advertised for sale, when superfluous, 320. Whether, is superfluous is a mixed question of law and fact, 320, 321. Bond fide retained for undertaking not superfluous, 321. Acquired for accommodation works not supei-fluous, 321. Acquii-ed from promoters bv other promoters is not superfluous, 321, 322. Superfluous, let by promoters, 323. With easement acquired by promoters, 323. Eestiiction on alienation of, by promoters, 325. Occupiers may acquire prescriptive right to, of promoters, 325. " Used for building purposes," meaning of, 328, 329. Meaning of " disposing of " in sects. 127 and 128 of the Lands Clauses Consolidation Act, 1845, 329, Superfluous, to be conveyed to pmx-haser, 331, 332. Taken exempt from, rates, 338. Compensation for, in Westminster, before high bailiff, 351. "Railway com i^any must acquire, for diversion of roads, &c.. 370, 371 . 372. Acquired for communication between railway station and river, 373. When railway company may take possession of, without prc'\ious payment, 378—384. When owner may compel pmxhase of, temporarily occupied, 383. 806 Index. LAND — continued. Taken for stations, &c., 384, 385. Mines and minerals excej)ted out of conveyance of, to railway company, 410, 411. Eailway company who acquire, imder statutory powers do not acquire support, 417, 418, 419. On abandonment of railway, to be sold within prescribed time, 432. Board of Trade may require railway company to take, for additional works, for public safety, 436. Extension of time not to affect existing contracts to take, 438. Power of promoters to enter into provisional contract to take, 439, 440. Sale of, belonging to Crown, or Duchy of Lancaster or Cornwall, 441, 517. Waterworks Clauses Act, 1847, applies to, 449. Includes mines in Waterworks Clauses Act, 1847, 450. Taken for widening streets umler Metropolitan Paving Act, 1817, 467, 468. Borough council may purchase, for purposes of Metropolis Manage- ment Acts, 490, 491. County council may purchase, for pui-poses of Metropolis Manage- ment Acts, 490—492, 506. Disposal of, not required by county council or borough council, 492, 493, 506. Acquii'ed for flood works in metropolis, 499 — 505. Parish council may acquire, 507. Parish council may hire, for allotments, 510. Hired by parish council required by landlord to work mines, 512. Purchase and sale of, by local authority under Public Health Acts, 513—516. May be let by local authority under Public Health Acts, 517. Entry on, for purposes of Public Health Acts, 521, 522. Acquisition of, by sanitary authority for allotments, 530 — 532. Sale of superfluous, under Allotments Act, 1887, 532, 533. Acquired for markets and fail's, 535, 537. Acquired under Harbours, Docks, and Piers Clauses Act, 1847, 538. Acquired under Towns Improvement Clauses Act, 1847, 543. Acquired under Cemeteries Clauses Act, 1847, 546, 547. Purchase of, under Elementary Education Act, 559, 560, 562, 564. Piu'chase of, by Postmaster-General, 567. Sale and exchange of, by Postmaster-General, 569. Taken by local authority under Housing of Working Classes Act, 1890, 576, 580—585, 596, 597. Dedication of, as highway under Housing of Working Classes Act, 1890, 588. Sale and exchange of, by local authority under Housing of Working Classes Act, 1890, 597, 598, 599. Purchased for military j)urposes under Military Lands Act, 1892, 617 —620. Power to lease, hold for public purposes, under Military Lands Act, 1892, 622. Lease of, to volunteer corps, 625. Accjuired by Admiralty, 625 — 627. Includes bed of sea or tidal water under Military Lands Acts, 627. Taken under Light Railways Act, 1896, 629, 630. Foim of agreement for purchase of land, 647. Index. 807 LAND — continued. Investment in, under Settled Land Acts, 702, 703. Settlement of land purcliased under Settled Land Acts, 702, 703. Proceedings for protection and recovery of settled, 710. Valuation of lessee's interest in, 727. Valuation of freehold, 728. Valuation of agricultural, 729. LANDOWNEE. See Oimer. Sect. 23 applies to injuriously affecting of, 78. " taken " — meaning of, 1 10. LANDS CLAUSES ACTS, Application of, 3. Meaning of, 4, 14. Incorporation of, in special Acts, 4, o, 76, 154, 155, 280. Adjustment of provisions of, to provisions of special Act, 4, 5. Exclusion of portion of, under one general heading, 6, 14, 15, IG, 155, 311. Citation of, 14. Exclusion of, by words other than headings, 17, Award outside, 27, 353. Trustee selling under, and not under his power, 32. Fonn for conveyances under, 247, 248. Effect of conveyance of land under, 247, 248. Costs where, not incorporated in special Act, 229, 250, 251. Construction of railway subject to, 359, 360. Compensation payable by railway company to be subject to, 3S1. Compensation for injury to mines to be settled by arbitration, not imder, 420, 421. Incorporated in Railways Construction Facilities Act, 1864, 441. Incorporated in Waterworks Clauses Act, 1847, 448, 449. Incorporated in Gas and Water Facilities Act, 1870, 463. Incorporated in Gasworks Clauses Act, 1871, 464. Incorporated in Metropolis Management Act, 1855, 491. Incorporated in Local Government Act, 1894, 507. Incorporated in Public Health Act, 1875, 515, 525. Incorporated in Allotments Act, 1887, 530. Incorporated in Markets and Fairs Clauses Act, 1847, 535. Incori)orated in Harbours, Docks, and Piers Clauses Act, 1847, 538. Incorporated in Towns Improvement Clauses Act, 1847, 543. Incorporated in Cemeteries Clauses Act, 1847, 546, 547. Incorporated in Elementary Education Act, 1870, 564. Incorporated in Post Office (Land) Act, 1881, 567. Incorporated in Electric Lighting Act, 1882, 572. Incorporated in Housing of Working Classes Act, 1890, 582, 587, 588, 591, 593. Incorporated in Military Lands Act, 1892, 617—620. Incorporated in Merchant Shipping Act, 1894, 628. Form of title to originating summons or petition under, 720. LAND TAX, Application of compensation in discharge of, 191. Where redeemed by tenant for life, 193, 194. Costs of redemption of, 238, 239. To be made good by promoters, 332, 333. Eedemption of, by promoters, 332, 333. 808 In>]e.r. I, AND TAX— couthmed. Deficiency in, how computed, 335, 336, 337. Local authority, where promoter, to make good deficiency of, 334 — 336, 516, 582. Deficiency of, may be demanded in lump siun, 337. LATEEAL DEVIATION, Hmits to, 366, 367. LEASE. Includes agreement for a lease, 7, 356. Specific pei-formance of, 22. breach, of covenant in, after notice to treat, 33. Promoters must accept assignment of, with usual covenants, 33. "With proviso against assignment, 34. With power to landlord to resume possession, notice to treat to tenant, 63. Of land after notice to treat, 6o. Found to be invalid after assessment of compensation, 122. What is sufficient description of interest in, 72, 73. Jui-y can only assess value of, 123. '\^^lere compensation awarded under an invalid, 148, 224. Compensation for, with beneficial covenant, 150. Compensation for, with covenant for renewal, 151. Compensation for, with jiroviso for re-entry, 151. Old, an incumbrance on improved lands, 197. Api)lication of purchase-money in Court to obtaining surrender of, 197. Eeinvestment in leasehold, 198. Application of purchase-money for, 215. Of church lands taken by promoters, investment of purchase-money, 217. Fine on renewal of, 217. Interest of tenant for life on compulsory sale of, 217. Eenewable in jjcrpetuity, 218. Annuity charged on, 218, 219. Eeinvestment of proceeds of, in freeholds, 234. Eeinvestment of proceeds of freeholds in, 234. Purchase of, by reversioner, 239. Premises held under two, 278, 279. Apportionment of rent imder, 304, 305. With proviso against assignment, 305. Compensation to tenant with agreement for, 309, 310. To be produced where greater interest than that of tenant at will, 311. Of school house under Elementary Education Act, 1870, 564. Of land to volunteer corps, 625. Volunteer corps may borrow on security of, 625. Foiin of notice to produce, 675. Valuaticm table for, 743—745, 749—751. LESSEE. Not liable for breach of covenant after land taken, 33. Omitted from book of reference, 46, 362. Compensation to, for injuriously affecting land not inehided in demise, 182. Compensation to, for breach of covenant for quid enjoyment, 183. Of building agreement entitled to (■omi)ensation, 253. Should be made parties to vendor's action to enf,ti,nic Communications in, under waterworks, 459. Claims for jn'ospective prevention of working, 460. Power of waterworks company to inspect working of, 461. Waterworks company liable for injury to, 461. Land hired by parish council required by landlord to work, 512. Provisions of Public Health Acts as to, 514, 527, 528. I'rotection of, under Electric Lighting Act, 1882, 574. Index. 815 MISCOXDUCT of arbitrator, 106, 107, 692, 693. MISDIEECTIOX, verdict cannot be set aside on ground of, 127, 128. MISTAIO:, Bond fide, between owner and promoters, 68. Of arbitrator, 107. Second petition for payment out of Court on ground of, 209. Promoters may purchase land omitted by, 313 — 315. Mistake as to omission to purchase must be hana fide, 313, 314, 315. Compensation for lands omitted to be purchased bj-, 315, 316. Errors or omissions in plans and book of reference arising from, 361, 362. MOETGAGE, Payment off of, out of purchase-money, 196. Reinvestment of purchase-money on security of, 237. Co.sts of petition to ascertain what due on, 242. Power of promoters to redeem, 296, 297. ^\Tiere promoters enter on land without making provision for, 297. Where, exceeds value of land taken, 298, 299. Compensation to be made where paid off before stipulated time, 301, 302. Payment of, of land taken under Metropolitan Paving Act, IS 17, 481, 482. MOETGAGEE, Entitled to a notice to treat, 62, 68, 297, 313, 314. Good-will in trade premises passes to, unless it depends on personal skill of mortgagor, 63, 142, 260, 299. Entitled to payment out of Court of amount of mortgage, 222. Costs of, on petition to the Court, 245. Must be provided for by promoters before entry on land, 259, 297. Has no lien on deposit in Coiu-t, 297. Entitled to assignment of land in default of jiayment, 297. Interest payable to, in lieu of notice, 298. Refusal of, to accej^t mortgage money, 298, 299, 300, 301. Compensation payable where part only of land mortgaged to, taken, 300, 301. Refusal of, to adduce good title, 298 — 301. Of land taken under Metroi^olitan Paving Act, Is 17, to convey, 480, 481. Of public-house where, in possession, 740. MOTION, application to remit or set aside award to be made by, 715, 716. MUNICIPAL CORPORATION, sale of land by, 40. NEGLIGENCE, Of arbitrator, 91. Damage caused by, of promoters, action for, 171, 172. In construction of sewer, 172. Railway company must exercise its powers without, 373. NOTICE, Service of, on owners and occupiers, 71, 380. Occupier not agent of owner to accept service of, 71. Sendee of, on corporation, 72. 816 Index. NOTICE— co/^f/«(f«?. By promoters, of intention to sunimou jury, 109. By promoters of inquiry, 120. To owner of entry by jiromoters for survey, 252. Service of, on promoters, 338. Wrongly addressed, 339. PubUc, to be given previous to making deviation, 364. By railway company that tliey require temporary possession of land, 379. Service of, on railway company, 42(3. Service of, under Elementary Education Act, 1870, 559. Publication of, under Housing of Working Classes Act, 1890, 576. Form of, to jwoduce lease, 675. Form of, of trial and to produce, 675. Fonn of, to admit, 676. NOTICE TO TREAT, Death, of owner after, 23. Breaches of covenant in lease after, 33. Not necessai'ily exercise of compulsory powers, 41, 311. For land, 43. Plan accomi^anjang, need not have scale of admeasurement, 48. Need not be given in case of easements, 55, 56, 562, 563. May be given before expiration of compulsory powers, 57 — 60. Delay in proceeding under, 58 — 60. Owner may compel promoters to complete, after expiration of pre- scribed time, 60. Prior agreement determined by, 60. Promoters cannot withdi'aw, without consent of landowner, 61. Promoters may not enter ujion smaller quantity of land than in, 61, 259. Not equivalent to requiring possession under sect. 121, 61, 309. Interest of landowner at time of, 61. All parties interested in land entitled to a, 62. Tenant with equitable interest entitled to, 63. Quarterly tenant with notice to quit not entitled to, 63. Separate, to be given for separate interests, 64. Promoters may give more than one, 64, 65. New tenant without notice of, 64. Does not require a stamp, 65. Owner cannot deal with land after, 65. Notice of appointment of arbitrator in Ireland is equivalent to, 66. Land in pi-ecept to sheriff must be the same as in, 66, 115. Variance in description of hereditaments in, is only an irregularity, 66. Promoters are trespasseis in absence of, 67. Waiver by landowner of invalid, 69. Promoters cannot set up defect in, 69. Promoters may abandon, in case of counter-notice by owner, 69, 280. Withdrawal of counter-notice does not revive, 70. Coiuiter-notice is waiver of invalidity in, 70. Position of promoters after valid withdrawal of, 70, 280, 281. How served on owners and occupiers, 71. Must be served on guardian of infant, 71. Service of, on coii:»oration, 72. Index. 817 NOTICE TO TREAT— ro//[H. Eailway company to make acconTmodation works for, 400 — 402. May make accommodation in default of railway company, 407, 408. Cannot acquire accommodation works after five years, 408. May cross railway until accommodation works made, 408, 409. Compensation paid to, in lieu of accommodation works, 405, 409. Power of, to make private branch railway, 409, 410. May work mines and minerals under land conveyed to railway company, 410, 411. To give notice before working mines under railway, 414 — 417. May work mines if railway company unwilling to pui-cliase, 416, 417. Of mines not entitled to right of way over railway, 420. Eailway company to make compensation to, for injury to mines, 420. Eailway company to make compensation to owner of surface land over mine, 422. Penalty on, for refusing to allow railway company to inspect, 422. Compensation to, on abandonment of railway, 429, 430, 432, 433. Cannot compel local authority to take whole of land or building under Metropolitan Paving Act, 1817, 469. Property of, in one notice must be assessed together, 470. Costs of, under Metropolitan Paving Act, 1817, 473, 474. May reserve right of pre-emption on sale of land under Metropolis Management Act, 1S55, 493. Meaning of, imder Housing of Working Classes Act, 1890, 585, 586. Cannot compel local authority to take whole house or manufactory under Housing of Working Classes Act, 1S90, 587. Form of particulars of claim by, 642. Form of agreement between promoters and, for purchase of land, 647. Form of counter-notice by, 649. PAEISH COUXCrL, Contract by, 21. May acquire land, 507. May hire land for allotments, 510. Compensation for land taken by, 507 — 512. Land hii-ed by, required by landlord to work mines, 512, PAELLIMENTAEY DEPOSITS AND BONDS ACT, 1892, Power to release deposits, 614, 615. Power to cancel bonds, 616. PAETICULAES OF CLAIM, Must give reasonable infonnation, 72, 73. 177. " Leasehold interest " insufficient description in, 72, 73. When '-occupier" sufficient description in, 73. Waiver of right to object to, by promoters, 73. Need not appear in warrant to sheriff, 115, 116. Form of, 642, 646. PAETIES, All interested, entitled to notice to treat, 62, 68. Assessment of compensation in case of dispute, 72 — 78. Claiming compensation exceeding £50 have option of arbitration or jury, 77, 78. Consent of, to enlargement of time for award, 81, 82. 822 Index. TATTIES— continued. Appointment of arbitrator to act for both, 83, 84. Where one of, in litigation with arbitrator, 87, 680. Where no opportunity of tendering evidence given to, 93. Eefusal of, to attend arbitration, 94. Waiver by, of interest of sheriff, 113. Apijlication of purchase-money in case of, under disability, 190, 191. Service of petition for reinvestment on, interested, 207. Costs of appearance of, under sects. 69 and 70, 244, 245. Committee of interested, to treat with promoters for compensation for common lands, 292, 293. PATMASTEE-GENERAL, Substituted for Accountant-General, 191. Compensation paid into Court in name of, 190, 191, 264, 265. Payment of deposit money where office of, closed, 268. PAYMENT INTO COURT. See Deposit. Of amends in respect of wrongful act, 339. PAYMENT OUT OF COURT, To person absolutely entitled, 191. To married woman absolutely entitled, 200. To trustees of a charity, 201. To tenant in tail, 202. Application for, when made by summons or petition, 207, 208, 209, 210, 228, 246. Second petition for, on ground of mistake, 209. Affidavit on petition for, 209, 210. To vendor after decree of specific performance against promoters, 224. Petition for, where adverse claim set up by the Crown, 225. When Court will deal with question of title on application for, 226, 227. Discretion of Court as to costs of, 229 — 231. Mortgage or re-settlement by, after payment into Coiu't, 241. Costs of, in case of adverse claims, 243. Apportionment of costs of, 243, 244. Of deposit to promoters, 265, 266, 267. Affidavit upon application for, 715, 716. PENALTY, Stipulation in nature of, for non-papnent of purchase-money, 28. On i^romoters entering on lands without consent or payment of purchase-money, 268, 269, 270. Action by occupier for, 270. Recovery of, 339. Application of, 340. On witnesses making default, 342. Appeal to quarter sessions from decision of justices as to, 343. Receiver of Metropolitan Police to receive, 343, 344. On railway company for obstructing supply of gas or water, 376. For obstructing construction of railway, 376, On railway company for not substituting a road, 392. 393. On railway company for not restoring road, 394. On railway company for not repairing road used by them, 395, 396. Index. 823 FE'NALTY— continue' f. On railway company for not providinii; approaches and fences at level crossing, 397. On railwaj'' company for not providing screen to road, 39S. On railway company for not repairing bridges, 398, 399. On persons omitting to shut gates of accommodation works, 409. On owner or lessee for refusing to allow railway companv to in-:pect mines, 422. For obsti'ucting construction of waterworks. 4.54, 45.5. PERJURY, witnesses giving false evidence liable to penalty of, 344. PETITIOX, By landowner to wind up company, 100. Where petitioner a person absolutely entitled. 198. Service of, on remaindermen, 204, 20.5. 21.5, 219. For interim investment, 206. For reinvestment in land, service of, 207. Costs of, for payment out, 207, 208, 209, 228, 229, 246, 247. Second, on accoiuit of mistake, 209. Death of applicant while, pending, 209. Seal of company to be affixed to, 209. Affidavit necessary in case of, 209, 210. One, for paj-ment out of two funds, 210. Costs of trustees on, for payment out of Court, 210, 211. For investment of piu'chase-money or compensation dejiositod in Coui-t, 203, 204, 222. For paj-ment out where adverse claim set up by the Crown, 22.5. Variation of order on, 229. Costs of reversioner on, by tenant for life for reinvestment, 233. Costs of, where necessary on account of former defective, 240. Costs of, occasioned by re-settlement or mortgage, 241. Costs of, to ascertain what due on mortgage, 242. Costs of service of, 244, 245. Vendor must join in petition for payment out of Court of deposit to l^romoters, 267. By vendor for payment out to him of dejjosit, 267. To wind iip railway company, landowners deemed creditors, 432, 433. By local authority to Local Government Board for 23urchase of land. 515, 516. FoiTu of title to, 720. PIERS. See Ilarhours, Dods, and -Piers. Construction of, 369, 538. PIOS, " cattle" includes, 406. PIPES, Disused, not an interest in land, 63, 64. In subsoil without consent of owner, 68. Alteration of gas and water, by railway company, 375, 376 Damages for iiijiuy to, of waterworks company, 458. Gas company entitled to support for, 465. 824 Index. PLAN And sections deposited not incori)orated in sj^ecial Act, 45. Delineations on, for which no special power is given, 4(5. Land outside that delineated on, cannot be taken by promoters, 47. Accompanying notice to treat, need not have scale of admeasurement, 48. Errors and omissions in, may be corrected, 361, 362, 451, 535, 53(5, 539, 544. Of authorised alterations to be deposited before construction of railway, 362, 363. Of authorised alterations to be deposited before construction of wateiTvorks, 451, 452. Copies of, to be evidence, 363, 452, Arches and tunnels to be marked on deposited, 365. Deviations from, 366, 367, 434, 435, 452. Cajiricious deviation from deposited, 368. Deposit of, under Housing of Working Classet^ Act, 1890, 601. POOE-RATE, Deficiency in, to be made good by promoters, 332, 333 — 338. Includes rates chargeable on, 333. Effect of London Government Act, 1899, on, 333. Where promoters purchase premises beyond limits of deviation, 333, 334. Deficiency in, how computed, 335, 336, 337. Local authority where promoter must make good deficiencv of, 334, 335, 516, 582. Deficiency in, may be demanded in lump sum, 337. Promoters not entitled to deduction under Poor Bate Assessment and Collection Act, 1869, when making up deficiency in, 338. Promoters to make good deficiencv where land taken is exempt from, 338. POSSESSION, Taken before price fixed, interest, 26. "SMiere owner remains in, after purchase-money paid, 28. Notice to treat not equivalent to reqiuring, under sect. 121, 61, 309. Landlord with power to resume, does not disentitle tenant to notice to treat, 63. Assessment of compensation where, taken by promoters, 78. Lien of unpaid vendor where promoters have taken, 106. Party in, to be deemed owner, 225. Title obtained by, and Statute of Limitations. 225, 226. Promoters not entitled to, where action for specific performance pending, 258. Proceedings by promoters on refusal to deli\ er, of lands, 270. Sect. 121 does not apply to tenant from year to year unless, required, 147, 309. Temporary, of land by railway company, 378, .379. POST OFFICE (L.IND) ACT, 1881, Power of I'ostmaster-General to purchase land, 5(57, 568. Incorporatitni of Lands Clauses Acts in, 567, 568. Power of Postmaster-General to sell and exchange lands, 569. PEEOEDENTS. For complete list, see pp. 639, 640. Index. 825 PEE-EMPTION, Promoters not bound to purchase right of, over adjoining land, 1-16. When right of pre-emption of superfluous land arises, 320, 327, Eight of original owner to, of superfluous land, 326, 327, 4f)3. Inquiry as to adjoining owners where right of, is claimed by one, 329. Where right of. is limited to vendors to promoters, 329. Time within which right of, must be claimed, 329, 330. Differences as to right of, to be settled by arbitration. 330. Promoters will not be ordered to take up an award as to right of. 331. Foi-m of offer of, of .superfluous land, 677. "PEESCRIBED," meaning of, 6. PEICE, Not ascertained, specific performance refused, 23. Interest payable where possession taken before, fixed. 2(). PEIAMTE EOAD, that does not pass on conveyance of house, 274. PEOCEEDIXGS, Quashed where .sheriff interested, 113. Not invalidated by reason of disqualification of juryman, 117, 118. Jurisdiction must appear on face of, 127. Not to be quashed for want of form, 342. Power to stay, where there is a submission to arbitration, 68o. PEODUCE, foi-m of notice to, 675. PEOFITS, LOSS OF, Compensation for, 140, 141, 142, 158, 173—176, 584. After notice to quit but before possession taken, 148. PEOMOTEES, Meaning of, 6. Secretary of State for War may be. 7. 349. Cannot direct warrant to under-sheriff", 11. May purchase land by agreement. 18. Pvu'chase of minerals by, 19, 65, 259. Contract by, to purchase support in Parliament, ultra vires of the company, 20. Interest payable where possession taken by, before price fixed, 26. Where purchase-money has been paid by, and owners have remained in possession, 28. Must accept assignment of lease with visual covenants, 33. Maiidumm to, to comj^el deposit of money in bank, 35, 191. Purchase of lands by, for extraordinary purposes, 39, 320. Special Act does not compel, to carry out undertaking, 42. Cannot be restrained from entering on land before capital subscribed, 43, 255, 256. Injunction to restrain, from making portion only of undertaking, 43, 44. Must give notice to treat for land, 45. Cannot take land outside that delineated on plans, &c., 47. Are sole judges if land to be taken, 48. Cannot take land for collateral purposes, 48—50, 454. Doubts as to powers of, to be construed in favour of landowner, 51, 264. 826 Indej-. PEOMOTERS— fo;/?//( ,u-remises, 281. Acceptance by solicitor of bad counter-notice does not bind, 281. Owner of intersected land may require, to purchase, 281 — 284. May insist on purchase whei-e expense of making bridge exceeds value, 282. Conve3'ance of copyholds to, 284. l)utj' on, to procure enfranchisement of cojiyholds, 286. Mandamus to comiiel, to enfranchise copyholds, 286. And owner may agree to assess compensation for copyholds under Copyhold Act, 1894. 287. Entitled to acknowledgment and production of title-deeds antl Court rolls in case of copyholds, 288. Lord of manor to convey common lands to, 290. Entry bj-, without having paid compensation to commoners, 290, 291 . Committee of parties interested in common lands to treat with, 292,. 293. I)ccd-poll by, when^ common lands taken, 295. Power of, to redeem mortgages, 296, 297. May deposit niortgage money on refusal of mortgagee to accept and execute deed-poll, 298, 299. Sum to be deposited by, where mortgage exceeds value of land, 298,, 299. Sum to bo paid by, where part only of mortgaged lands taken, 300, :i01. Must i)rovide for costs of reinvestment before taking possession, 302. Date which fixes rights of, and tenant from year to year, 306, 307. "When, may demand production of lease, 311. Agreement to sell land to, if they should require it, 312, 313. Index. 829 TB.O'SlOTEUS—coxfiinifd. May puvcliase Liml omitted by mistake, 313, 314, 315. "Where in possession of more lanil than in book of reference, 313, 314. Law as to superfluous lands applies to, with onlj' reversionary interest, 322. Land with easement acquired by, 323. May impose restrictive conditions on sale of superfluous lands. 324. Lien of, on sale of superfluous lands, 324. Sale of superfluous lands must not reserve interest to, 324. Purchaser of superfluous lands acquires no greater rights than, 325. Of ordinary rights of other landowners, 325. Eestriction on alienation of land by, 325. Occupier may acquii-e prescriptive right to land of, 325. Where special Act gives, unrestricted power of sale over superfluous land, 326. Must ofl'er superfluous land to original owner, 326, 327, 329. Where right of pre-emption is limited to vendors to, 329. Will not be ordered to take up an award as to right of pre-emption of superfluous land, 331. To convey superfluous lands to purchaser, 331, 332. To make good deficiency in land-tax and poor-rate, 322, 333—336. Local authority may be, 334. Where special Act makes, liable for deficiency in general pxu-poses rate, 337, 338. Not entitled to any deduction under Poor Piate Assessment and Collec- tion Act, 1869, when making up deficiency in poor-rate, 338. To make good deficiency where land taken is exempt from rates, 338. Service of notice or summons on, 338, 339. Distress against goods of treasurer of, 341. To allow access to special Act, 344, 345. May enter into provisional contract to take land for railway, 439, 440. Contracts by, binding on railway company, 442. Injunction against, for unauthorised Act under Waterworks Clauses Act, 1847, 450. Water percolating through strata intercepted by, 453, 454, Form of agreement between, and owner for purchase of laud, 647. Form of request to, to appoint arbitrator, 653. Fonn of appointment of arbitrator by, 653. Fonn of notice by, of appointment of arbitrator and request to owner to appoint, 654. Form of notice of time and place of inquiry to be given by, 664. Form of notice to, to apportion rent, 672. PEOVISIOXxiL ORDER, under Housing of Working Classes Act, 1890, 577, 578. PUBLIC AUTHORITY. See Local Authority/. Powers conferred on, to be liberaUj' construed, 53, 264. Allowed to take more land than required, 53, 54, 334. Agreement by, to exchange land taken, 54. Land taken from, with statutory rights, 149, 150. Statutorj' limit to proceedings against, does not a^^ply to compensa- tion under Lands Clauses Consolidation Acts, 189. Sect. 85 does not apj^lj" to, constructing sewer, 264. May be promoters, 334. 830 Index. PUBLIC HEALTH ACTS, Purchase of land by local authority, 513, 515, 516. Sale of laud not required by local authority, 513, 514. Incorporation of mining clauses of Waterworks Clauses Act, 18-17, 514, 527, 52S. Incorporation of Lands Clauses Acts in, 515, 525, 679. Local authority may let lands, 517. Provision for lands belonging to Duchy of Lancaster, 517. Compensation under, to be settled by arbitration, 517 — 521. Costs of arbitration under, 520. Claims under £20 referred to Court of Summary Jurisdiction, 521. Neglect of arbitrator or ixmpire to deal with costs, 521. Entry on lands for purjjoses of, 521, 522. Compensation for damage by local authority under, 523. Provisions as to sujiport for sanitary work, 528- PUBLIC-HOUSE, Compensation in case of tied, 150. Injurious affection of, by diverting highway, 160. Injury to trade of yearly tenant of, 165, 176. Compensation for dein-eciation in letting value of, 176. Interference with celkirs of, 176, 177. Valuations of, 737 — 740. PUBLIC ROAD. See Boad, Diversion of Road. PUECHASE-MONEY. See Ajqdicaiion of Parcliase-money Deposited, and C'oinpensatioit. Lien of owner for unpaid, 24, 262, 263. Interest on, 24, 25, 27, 189, 214. Where owner remains in possession after payment of, 28. Mandamus to promoters to deposit, in bank, 35, 191. Cannot be attached by garnishee before conveyance, 104, 105, 123. Of land of lunatic, payable to credit of lunacy, 192. Paid by promoters under jjrotest, 192. Eetains its character of realty, 192. Eedemption of land-tax with, of glebe land, 194. Eeinvestment of, in buildings, 194, 195, 199. Laid out in repairs, 194, 195. Application of, to rebuilding rectory, 194, 195. Of church^^ard, application of, 195, 206. In Court, application of, to payment off of rent-charge on glebe, 196. In Court, payment off of mortgages out of, 196. In Court cannot be applied in pui'chase of equity of redemption, 196. In Court, application of, to redemption of tithe rent-charge, 196, 197. In Court, ai)plication of, to redemption of quit rent, 197. In CoTirt, application of, to obtaining surrender of lease, 197. In Court, may be laid out in purchase of copyholds, 197, 198, 237. Eeinvestment of, of charity land, 198, 199. Applied to provide substitute for buildings, 199, 238. Eeinvestment of, in Court, in railway stock, 199. Payment out of, to tenant in tail, 202. Application of, when governed by Settled Land Acts, 202, 203. List of securities for investment of, by order of the Coui-t, 203, 204. Tenant for life proper person to apply for investment of, 204, 205. Jiule.r. 831 PUECIIASE-MONEY—co/,ulsory powers, 313. "Within which right of pre-emption of superfluous land must be claimed, 329, 330. Within which a railway company must restore roads, 394. Limit of, for piu-chase of mines and minerals, 360, 414. For claiming compensation in case of abandonment of railway, 431,. 432. Compensation to owners, &c., for extension of, 43S. Extension of, not to affect existing contracts to take land, 438. For making award under Public Health Act, 1875, 519, 520. For exercising compulsory powers under Military Lands Acts, 627. Form of notice of, and place of inquiry, 664. Within which to apply to set aside award, 716. TITHE Is incorporeal hereditament, 9, 10. Compensation for, 162, 163. Eedemption of, rent-charge out of purchase-monev in Court, 196, 197. Land charged with rent-charge in lieu of, 302 — 304, 564, 565, 666. TITLE, Investigation of, prior to decree of specific performance, 22. Injunction refused where question one of, 68, 188. Justices cannot decide questions of, 77, 83. Neither arbitrator nor jury can inquii-e into, 79, 80, 123, 124, 446. Promoters may dispute, of claimant in action on award, 104. Question of, to be raised in action on judgment, 124. Coui't will not restrain assessment of comj)ensation on ground that claimant has no title, 188. Eeference as to, on petition for reinvestment, 207. Deposit of piu'chase-money and compensation on failure to show, 220. Failure by claimant to make a, 220, 221. Person in possession deemed owner when dispute as to, 225. By virtue of Statute of Limitations, 225, 226, 325. Court will not deal with questions of, on petition for i^a-sTnent out, 226, 227. Costs in case wilful neglect to make a good, 227, 228, 235. Costs of two counsel advising on, not allowed, 236. Failure of lord of manor to adduce a good, 288, 289. Eefusal of mortgagee to adduce good, 299, 300, 301. Purchaser cannot acquire good, where lieu on lands reserved to- promoters, 324. 848 liuh\i\ TITJjE— cold inued Of adjoining owner to superHiious land not affected Ly new special Act, 326. Wliere question of, raised under Metropolitan Paving Act, 1817, 478. Form of, to originating summons or petition, 720. TOLL, Eent-charge charged on, 37. Definition of, in Eailways Clauses Act, 356. TOWN, meaning of, 282, 328. TOWNS IMPEOVEMENT CLAUSES ACT, 1847, Subject to provisions of Lands Clauses Act, 1845, 543. Errors and omissions in plans may be corrected, 544. Commissioners to make compensation for damage done, 544. Power to commissioners to construct sewers, 545. TEADE EIXTUEES. See Fixtures. TEADE PEEMISES, Good- will in, passes to mortgagee, unless dependent on personal skill of mortgagor, 63. Valuation of, 726, 730, 731, 732. TEESPASS Not maintainable for damage to easem.ent, 57. Promoters liable to action for, in absence of notice to treat, 66. Not, wliere promoters could obtain land under another Act, 68. Wliere promoters enter without paying or dei^ositing purchase- money, 252. Tender of amends for, 339. TEUSTEE May be promoter, 6. Sale of land by, 28, 470, 471. For equitable tenant for life is necessary party to conveyance, 30. Of married woman absolutely entitled, 31. With a bare power of sale with consent of tenant for life, 32. Of married woman with life estate and power of appointment, 32. Selling under Lands Clauses Acts and not under his power, 32. Where, not party to arbitration, 32. Cannot appoint himself surveyor, 36. Selling after having price fixed by surveyors, 36. Compensation payable to, to be deposited in bank, 190, 191. Not person absolutely entitled, 200, 201, 223. Payment out to, of charity, 201, 206, 217. Payment of dividends to, 205, 206. Payment of dividends to, of ecclesiastical lands, 206, 207. Costs of, on petition for payment out of Court, 210, 211. Payment of purchase-money under £200 to trustee, 211. Costs where, refuses to receive i^urchase-money for a charity, 232, Petition for jiaj'ment of dividends to new, 241. Cost of ai)pointing, under Settled Land Acts, 241. Compensation to lord of manor as, for inhabitants, in case of common lands, 290. Index. 849 TUXXEL, A hereditament, 9. For, promoters must take whole premises if required to do so by counter-notice, 279. Arches and, to be marked on deposited jjlans, 365. Limits of deviation from phxn in case of, 365, 366, 434, 435. Construction of, 369. Ei^ht to work mine where railway company acquire easement for. 418. UL TRA VIRES, contract by promoters of company to pay for support in Parliament is, 20. UMPIRE, Time for making award, SO, 81, 91, 683. Appointment of. 81, 88, 89, 91, 92, 424, 518, 519. AYaiver of improper appointment of, 85, 86. Valuer of promoters should not be appointed, 86. Appointment of, by lot invalid, 89. May not proceed where one arbitrator unable to attend, 89. Must make an award on all matters referred, 89, 93. Appointment of, by Board of Trade, 89, 90, 352, 424. To make award upon failure of arbitrators, 91, 425. Power of, to call for books and documents, 92, 425, 683. Power of, to examine witness on oath, 92, 683, 689. May seek expert assistance, 92. Must not consult solicitor of party as to form of award, 93. To make declaration, 94, 425, 519. Death of, before award, 98. Misconduct of, 107, 692, 693. Appointment of, luider Public Health Act, 519, X'eglect of, to deal with costs under Public Health Act, 1875, 521. Form of appointment of, by arbitrators, 656. Form of appointment of, by Board of Trade, 657. Form of award by, 659. Appointed under Arbitration Act, 1889, 681, 682. Costs in discretion of, under Arbitration Act, 1889, 684. Power of Court to appoint, under Arbitration Act, 1889, 687. Where, refuses to act, 688. Failure of arbitrators to appoint, 89, 90, 688. May state case pending arbitration under Arbitration Act, 1889, 695, 696. UXDER-SHEEIFF, Sheriff includes, 7. Promoters cannot direct warrant to, 11. Warrant must issue to sheriff where, interested, 112. May sign in name of sheriff, 114. UXDERTAKIXG, Application of Lands Clauses Acts to, 3. Meaning of, 6, 356. Who may be promoters of, 6. In country, land injuiiously affected in city, 11, 12. Special Act does not compel promoters to carry out, 42. 54 8o0 Index. V^D^-RTXKmG— continued. Promoters will be restrained from making- portion only of, 43, 44. Subscription of capital not condition precedent to extension of, 43, 45, Entry on lands under sect. 85 before time fixed for completion' of 257. Land does not become superfluous on abandonment of, 326. Every authorised work is for the purpose of the, 360. UNPAID VENDOR, Lien of, 24, 262. Ajipointment of receiver where, 263. USE OF LAND, allowance for, payable by owner in possession after payment of purchase-money, 28. USEE, Injury must be caused by construction and not by, 166—170. • By traffic, 395, 396. VALUATION, By surveyors, for compensation due to persons under disabilitv 34 35. Sm-veyor must make proper examination before making-, 36 138 261. Of land or premises is not contract to purchase, 70. By sui-veyor to be produced to owner of land on demand, 138. Expenses of, by surveyor to be borne by promoters, 138. Injunction refused on groimd of inadequacy of surveyor's, 261. By surveyor aj)pointed by Board of Trade, 443, 444. Foi-mof, by surveyor, 671. Specimens of, made for the purpose of assessing compensation, 725 — 742. Showing consequential damage, 735. Showing allowance for bettennent, 740 — 742. Tables, 743—751. VALUE, rise in, after notice to treat, 152. VALUEE of promoters should not be appointed umpire, 86. VENDOE AND PUECHASER, Ordinary rules as between, apply where contract comjilete, 24, 25. Eelation of, after notice to treat, 66, 67. VENDOE. See Owner. Lien for unpaid purchase-money, 24 — 26, 106, 262, 263. Interest not payable where comi^letion delayed by, 27. In possession after payment of purchase -money, 28. Absolutely entitled may seU in consideration of rent-charge, 37. In case of sale in consideration of rent-charge, has no lien, 38, 262. "Where land taken from, subject to restrictive covenant, 182. Costs of, payable by purchaser, 235. Api^lication of Solicitors' Eemuneration Act, 1881, to costs of '^49 250. With decree for specific performance cannot enforce lien, 263. Enforcement of lien of, by sale, 263. Appointment of receiver of undertaking where, unj^aid, 263. Imhw. 851 Action by unpaid, to enforce lien, 264. Has no lien for costs, 100, 264. Must bear loss, if any, of payment into siiecial bank. "-Mi.j. Must join in petition fur payment out of (,'ourt of deposit to promoters, 267. ~ Petition by, for payment out of deposit to him, 267. Interest payable bj', to mortgagee in lieu of notice, 29S. "SMiere right of pre-emption is limited to, of jiromoters, S'2U. VERDICT, Costs where, of jury set aside, 100. Where, set aside sheriff must summon fresh jury, 117. "Where, set aside trial cannot take place before judge and jurv, 117, US. To be signed by sheriff, 122, 123. Inspection of, 12o. And judgment of inquisition do not create absolute debt, 123. Recording of, not condition jirecedent to validity, 125. Parol evidence of, admissible, 12.3. Cannot be set aside for misdirection, 127. Cannot be set aside as against weight of evidence, 127. May be enforced by action for sijecihc performance, 12n. Set aside, claimant not entitled to costs, 131. Of jury on trial before judge and jur^-, 447, 473. Form of, and judgment, 665. VOLUNTEER Coi-jis may pui'chase land under Military Lands Act, 1N92, 617 — 620. Land may be let by, corps, 620. Rules as to exercise of jiowers by, corps, 621. Provision in case of disbandment of, corps, 620. Lease of land to corps, 625. Corps may borrow on security of lease, 625. WAIVER Of interest of justices, 13, 358. Of in-egulaiity by party appearing befoi-e sheriff, 66, 119. Bj- owner of invalid notice to treat, 69, 70. Of right to object to particulars of claim, 73. Of improper appointment of arbitrator or umpire, 85, 86. By parties of declaration by arbitrator or umpire, 94. By parties of fact that sheriff is interested, 113. By landowner of inconsistency between notice to treat and wairant to sheriff, 115. By landowner of notice of time and place of inc^uiry, 120. WAPi, Secretarj- of State for, may exercise powers of promoters, 3-19, 350. W.IERAXT, Cannot be directed to imder-sheriff, 11. Court will not compel in-omoters to is.sue, where lights of parties are not ascertained, 66. Mdndamiis to promoters to issue, to sheriff, 66, 74, 75, 114. Promoters to issue, to sheriff to summon jury, 112. Must issue to sheriff where under-sheriff interested, 112. 852 Imkx. ^YA'R'RA'NT— en idiniwl. When to issue to coroner, 112. Land in, must be same as in notice to treat, 06, 115. Particulars of land need not appear in, to sheriff, 115, 116. Where verdict set aside sheriff must summon fresh jury under original, 117. Of justices for recovery of costs by distress, 134. To sheriff for special jury, 136. Time for issuing, for special jury, 177, 178. Interest payable, -where promoters neglect to issue, 261. Of Board of Trade for abandonment of railway, 42S, 429. Refusal of local authority to issue, 470. Form of, to sheriff, 662.' WATEE, Compensation for right to flow of, 161, 166, 45o, 454. No prescriptive right to, of new watercourse, 374. Alteration of, pipes by railway company, 375, 376. Eailway comjiany to make good damage to, company, 376. Penalty on railway company for obstructing supplj^ of, 376. Penalty for illegally diverting, from waterworks, 455. Board under Metropolis AYater Act, 1902, 631. Valuation of, rights, 736. WATERWOEKS, Limit of deviation from plan of, 452. Works that may be done in constructing, 453. Penalty for obstructing construction of, 454. Execution of accommodation works by owner in default of, company, 456, Mines near, not to be worked until notice given, 457, 458. Notice by, company of willingness to purchase mines, 458. Damage to injury of pijies of, company, 458. Damage to, by working mines in unusual manner, 458, 459. Mining communications under, 459. Power to, company, to enter and inspect working of mines, 461. Company liable for injury to mines, 461. WATEEWOEKS CLAUSES ACT, 1847, Lands Clauses Act, 1845, incorporated in, 448, 449. Ajjplies to lands and streams, 449. Land includes mines in, 450. Compensation for minerals under, 450, 456—462. Errors and omissions in plans may be corrected, 451. Works not to be jiroceeded with until j^lans of alterations dejMJsited, 451, 452. Promoters not to deviate beyond limits on i)lan, 452. Works that may be executed, 453. Penalty for obstructing works or diverting water, 454, 455. Differences as to accommodation works, 455. WESTMINSTEE, high bailiff substituted for sheriff in, 11, 112, 351. WHAEF, valuation of fieehold, 733. WIFE, conveyance by husband and, 31. WILFULLY, meaning of in sect. S9, 269. Index. «Sf53 WILFUL NEGLECT, costs in case of, to make a good title. 227, 228. WILFUL EEFUSAL, Costs in case of, to receive purchase-money, 227, 228. Costs in case of, to convey or release lands, 227, 228. What is, 231. 232. WILL, person entitled nnder, to pnrchase-money in Court, 200. WIND UP, Petition by landowner to, company, 10(5. In case of petition to, railway company lando'miers deemed creditors, 432, 433. WITNESS, Examination on oath by arbitrator, 92, (583, 68f). In arbitration Court has no power to oi'der commission to examine, 92, 690. Arbitrator niaj- be called as a, 104. Summoning of, 118, 119, 691. Penalty on, for default, 119, 120, 342, 344, 396. Fine for non-attendance of, 474, 475. Power of Court to compel attendance of, 695, 696. WORKS of railway company below high-water mark, 374. WRONGFUL ACT, tenders of amends for, 339. YKO^IXRY, ai^plication of MiUtary Lands Act, 1892, to, 623. THE E^D. EBADBUEY, AGXEW, ife CO. LD., PEINTEES, LONDON -AND TONBEIDGE LAW BOOKS.-SVVEET AND MAXWELL, LIMITED, County Courts. — The Annual County Courts Practice; containing tlie Jurisdic- tion and Practice under the County Courts Act, the Bills of Excliange Act, and the Employers' Liability Act, and the Statutes and Rules of Practice. By His Honour Judge Smyly. 2 vols. 25s. Criminal Law. — Archbold's (J. F.) Pleading, Evidence and Practice in Criminal Cases, with the Statutes and Precedents of Indictments, by Sir J. Jekvls. 22nd Edit. ByW. F. CuAiES, 11. lis. 6d. 1900. The Criminal Evidence Act, 1898, with Intro- duction and Notes, by A. R. Butteuavohih. 5s. 1898. A Collection of Criminal Acts, with Notes, &c. By W. F. Craies. 10s. 1894. Mew's Digest of Cases relating to Crimijial Law to the end of 1897. 25s. 1898. Russell (Sir \V. 0.) on Crimes and Misde- meanours. 6th Edit. 3 vols. 5Z. 15s. 6d;. 1896. Roscoe's (H.) Digest of the Law of Evidence in Criminal Cases. 12th Ed. Bv A. P. Keep. II. lis. 6d. " 1898. Deeds. — Rules for the Interpretation of Deeds. With a Glos.sary. By Sir H. W. Elphinstone, R. F. NoinoN, and J. W. Clark. 2nd Edit. In j^reparatwi. Kelke's Epitome of Pules for Interpretation of Deeds. 6s. 1901. Dictionary. — The Judicial Dictionary of Words and Phrases Judicially Intei'preted. By F. Stroud, 'ind Edit. 3 vols. In the Press. Digest of English Case Law (The). — Superseding and Consolidating all previous Digests of the Reports down to the end of 1897, including a selection of Irish Cases. By John Mew.'*, assisted by Nineteen other Barristers-at-Law. 20Z. 1898. Continued annually. A Digest of Cases Overruled, &c., in the English Courts to the end of 1 899. By W. A. G. Woods and J. Ritchie. In ])reimration. Divorce. — Browne & Powles' Law and Practice in Divorce and Matrimonial Causes ; with the Statutes, Rules, Fees and Forms. 6th Edit. 25s. 1897. Easements. — Oale on Easements. 7th Edit. By G. Cave. 25s. 1899. Ecclesiastical Law. — rhillimore's Ecclesiastical Law of the Church of England. By Sir Robert Phillimore. 2nd Edit. 2 vols. Zl. 3s. 1895, Ejectment.— Williams (J. H.) and Yates' (W. B.) Law of Ejectment. 16s. 1894. Equity. — White & Tudor's Selection of Leading Cases in Equity, with Notes. 7th Edit. By T. Snow and W. F. Phill- POTTs. 2 vols. Zl. 15s. 1897. Kelke's E])iton)e of Leading Cases in Equity, founded on White and Tudor, ^s. 1901. Evidence. — Taylor's (Pitt) Treatise on the Law of Evidence, as administered in England and Ireland. By His Honour Judge Pitt-Taylor. 9th Edit. By G. Pitt- Lewir. In 2 vols. 3Z. 3s. 1895, Best's Principles of Evidence. With Elemen- tary Rules for conducting the Examination and Cross-Examination of Witnesses. 9th Ed. By J. M. Lely. 2.5s. 1902. Executors.— Williams' (Sir E. V.) Treatise on tlie Law of Executors and Ad- ministrators. 9th Edit. Zl. 16s. 1893. Factories.— Law relating to Factories and Workshops under the Factory and Workishop Act, 1901. With Rules, Orders, &c. , aud other Statutes atiecting the subject. By W. Bowstead. 10s. 1901. Forms and Tables.— Rouse's Prac- tical Man. 17th Edit. Giving many extra Instructions, Forms, Rules and 'J'ables. By E. E. H. BiKOH. 10s. M. 1900. Chitt.y's Forms of Proceedings in the King's Bench Division, and on ajipeal therefrom. 13th Edit. 36s. 1902. Fraud. — Kerr's Treatise on the Law of Fraud and Mistake. 3rd Edit. By S. E. Williams. 25s. 1902. Guide for Articled Clerks.— A new Guide for Articled Clerks, containing the most recent Regulations and Examination Papers. By H. W. Stiff, Solr. 6s. 1895. Guide to the Bar. — A New Guide to the Bar, containing the most Recent Regu- lations and Examination Papers. By M.A. and LL.B., Barristers-at-Law. 5s. 1896. Horses. — Oliphant's Law of, including the Law of Innkeepers, Veterinary Surgeons, &c., and of Hunting, Racing, Wagers and Gaming. 5th Edit. By Clement Elphin- stone Lloyd, r.a. Oxon. 21s. 1896. Income Tax.— Income Tax Acts, with Introduction, Notes, and Cross-references. By H. St. G. Peacock. 15s. 1901. Injunctions. — Kerr on the Law and Practice of Injunctions. 4th Edit. By E. P. Hewitt, S. E. AVilliams, and J. M. Patersox. 35s. 1903. International Law. — Westlake, j., K.C., on Piivate International Law. 3rd Edit. 16.5. 1890. Interpleader. — Law and Practice of Interpleader in the High Court aud County Courts. With Forms, &c. By M. CABABfe. 3rd Edit. 6s. 1900. Justices. — Wigram's Justices' Note Book. 7th Edit. 10s. M. 1900. Landlord and Tenant. — Woodfall's Law of Landlord and Tenant. 17th Edit. By J. M. Lely. 38s. 1902. Smith's Leading By T. W. Chitty, Leading Cases. Cases. 11th Edit. H. Chitty and J. Herbert Williams. £3 10s. 1903. Fifteen Deci.sive Battles of the Law. By E. A. Jelf. 3s. iSd. 1903. Licensing". — Licensing Law. — So far as it relates to the Sale of Intoxicating Liquors, Theatres, Dancing, etc. By R. M. Montgomery. 2nd Ed. 18s. 1902. Local Government and Taxation. ) — An Outline of, in England and Wales, ex- cluding London. By R. S. Wright and H. HoBHotJSE. 2nd Edit. 7s. M. 1894. Master and Servant.— Smith's Law of Master and Servant, including therein blasters and Workmen in every description of Trade and Occu]iation. 5th Edit. 28s. 1902. Maxims. — Broom's (Dr.) Selection of Legal Maxims. Classified and Illustrated. 7th Ed. by H. F. Manlstt and H. Chitiy. 28s. 1900. ul: buumtHiM ntuiu 3, CHANCERY LANE, LON Mercantile Law.— Smith's (J. W.) Compendium of Mercantile Law. 10th Ed. By J. Macdonell, M.A. 2 vols. 21. 2s, 1890. Merchant Shipping.— A Treatise on the Law of Merchant Shipping. 4th Edit. By David Maclachlan, m.a. 21. 2s. 1892. Mak.sden's Digest of Cases relating to Sliipping. Admiralty, and Marine Lisurance to the end of 1897. 30s. 1899. Mining. — M.\cSwixxEr (R. F.) on the Law of Mines, iliuerals and (^Hiarries. 2ud Edit. 2/. 1897. Mortgages. — Robbins' (L. G. G.) Trea- tise on the Law of Mortgages, Pledges, and Hypothecations. Zl. 1897. Municipal Corporations.— Rawlik- son'.s Municipal Cori)orations Acts. 9th Edit. By J. F. P. Kawlinson, k.c, and J. A. .loHNSTOX. 21. 2s. 1903. Nisi Prius. — Roscoe's (H.) Digest of the Law of Nisi Prius Evidence. 17th Edit. 2 vols. 21. 2s. 1900. Parish Law.— Steer's Parish Law. Cth Ed. 20s. 1899. Partnership. — A Treatise on the Law of Partnership. By the Right Hon. Sir Nathaniel Lindley, Knt., Master of the Rolls. 6th Edit., by W. B. Lindley, m.a. 35s. 1893, Patents. — Terrell's Law and Practice relating to Letters Patent for Inventions. By Thus. Tekkell. 3rd Edit. 25s. 1S95. Personal Property. — Goodeve's Mo- dem Law of Personal Property. 3rd Edit. By J. Herbekt Williams. 18s. 1899. Kelke's Epitome of Personal Property Law. 6s. 1901. Williams' (Joshua) Principles of the Law of Personal Property, intended for Students. 15th Edit. 21s. 1900. Privy Council. — Practice of the Privy Council on Appeals from British and Colonial Courts. With Forms and Prece- dents. By F. Stafford and G. Wheeler. 21. lO.v. 1901. Probate. — Powles k Oakley. A Treatise on the Principles and Practice of the Court of Probate in Contentious and Non-Contentious Business. Being the 3rd Ed. of Browne ox Probate. 1vol. 30s. 1892. Practice. — Stringer's ABC Guide to the Practice of the Supreme Court. 5s. 1902. Procedure. — High Court Procedure with reference to Firms, Corporations, Com- panies, and other Associations. By R. E. Ross. 6s. " 1902. Real Property. — Principles of the Law of Real Property. Intended as a First Book for the Use of Students in Conveyancing. By the late Joshua Williams, Esq. 19tb Ed. By T. C. Williams, ll.b. 21s. 1901. Goodeve's Modern Law of Real Property, with an Introduction for the Use of Students. 4th Edit. By Sir H. W. Elphinstone and J. W. Clark. 21s. 1897. An Epitome of Real Property Law, for the Use of Students. By W. H. Hastings Kelke, M.A. 2nd Edit. 6s. 1899. Carson's Real Property Statutes. 10th Edit. By Thomas H. Cakson, k.c, assisted ty Harold B. Bompas. 35s. 1902. ' Receivers. — Kerr's Law and Practice as to Receivers appointed by the Court of ~ ~ Wheeler 1900. Epitome of 1901. Treatise on Ciiancery. -Itli Edit. By P. F and C. Buuney. 10s. Roman Law.— Kelke's Roman Law. <6s. Sale. — Benjamin's (J. P.) the Law of Sale of Personal Property, with reference to the American Decisions and the French Code and Civil Law. 5th Edit. In preparation, Kek (W. C. a.) and Pearson Gee's (A. B.) Commentary on the Sale of Goods Act, 1893 ; forming a supplement to Benjamin on Sale. 18s. 1894. Settled Land Acts. — The Law and Practice under the Settled Land Acts, 1882 to 1890. By Aubrey St. John Clerke, b.a. 2nd Edit. 9s. 1891. Sheriff Law.— Mather's (P. E.) Sheriff and Execution Law. 2udEdit. 30s. 1903. Statutes. — Chitty's Statutes of Practi- cal Utility. New Edit. By J. M. Lely. Magna Charta to 1901. 14 vols. 15^. 15s. Continued bj' Annual Supplements. Maxwell on the Interpretation of Statutes. 3rd Edit. 21s. 1896. Support and Subsidence.— Banks. A Treatise on the Law of Support for Land, Buildings, and Public Works. By G. Banks. 12s. 1894. Title. — Hints as to Advising on Title. 3rd Edit. By W. H. Gover. 8s. 1896. Torts.— The Law of Torts. By J. F. Clerk and W. H. B. Lindsell. 2nd Edit. 25s. 1896. Eraser's Compendium of the Law of Torts. 5th Edit. 8s. 1902. Trade Marks. — A Treatise on the Law of Trade Jlarks, Trade - Name, and Merchandise ilarks. By D. M. Kerly. 2nd Edit. 35s. 1901. Trade Unions. — Trade Union Law and Cases. By H. Cohen and G. Howell. 6s. net. 1901. Trusts. — Lewin's (Thomas) Practical Treati.se on the Law of Trusts. 10th Edit. 21. 2s. 1898. Romer's Judicial Trustees' Guide. Com- prising Synopsis and List of Trustees' In- vestments, and the Law and Practice on the subject. By T. A. Romer. 8s. 1898. Vendor and Purchaser.— Law re- lating to A'endors and Purchasers of Real Property. By T.C.Williams. In the Press. Waters. Law of Waters, Sea, Tidal, and Inland. By H. J. W. Coulson and U. A. Forbes. 2ud Edit. 35s. 1902. Wills.— Jarman's (T.) Treatise on AVills. 5th Edit. 2 vols. 3?. 10s. 1893. Hayes (\V.) and Jarman's (T.) Concise Form of Wills ; with Practical Notes. 11th Edit. By J. B. Matthews. 21s. 1898. Workmen's Compensation. — Law relating to Workmen's Compensation. With Rules, Regulations, Orders and Forms. By W. Bowstead. 9s. 1901. Minton-Senhouse. Accidents to Workmen. 2nd Edit. 25s. 1902. I