No. 289. be compensated inconvenience, tracted to be paid for and on account of the several parties interested 29 VICTORIA, in such lands as well in possession as in remainder reversion or expectancy. Provided always that it shall be in the discretion of the owner of qualiSupreme Court or the said trustees (as the case may be) to allot to fed estate may any tenant for life or for any other partial or qualified estate for his for personal own use a portion of the sum so paid into the bank or to such trustees as aforesaid, as compensation for any injury inconvenience or annoyance which he may be considered to sustain, independently of the actual value of the lands to be taken and of the damage occasioned to the lands held therewith by reason of the taking such lands and the making of the works. may direct ap of leases or Clauses Consoli 332. Where any purchase money or compensation paid into the Supreme Court bank under the provisions of this Part or the special Act shall have plication of been paid in respect of any lease for a life or lives or years or for a money in respect life or lives and years or any interest in lands less than the whole reversions. fee simple thereof or of any reversion dependent on any such lease "The Lands or estate, it shall be lawful for the Supreme Court on the petition of dation Act 1845” any party interested in such money to order that the same shall be laid out invested accumulated and paid in such manner as the said court may consider will give to the parties interested in such money the same benefit therefrom as they might lawfully have had from the lease estate or reversion in respect of which such money shall have been paid or as near thereto as may be. 8. 74. being made the owners of the Ib. s. 75. conveyance the the undertaking. 333. Upon deposit in the bank in manner hereinbefore provided Upon deposit of the purchase money or compensation agreed or awarded to be paid in respect of any lands purchased or taken by the promoters of the lands to convey. undertaking under the provisions of this Part or the Special Act or any Act incorporated therewith, the owner of such lands (including in such term all parties by this Part enabled to sell or convey lands) shall when required so to do by the promoters of the undertaking duly convey such lands to the promoters of the undertaking or as they shall direct; and in default thereof if he fail to adduce a good In default of title to such lands to their satisfaction, it shall be lawful for the lands to vest in promoters of the undertaking (if they think fit) to execute a deed the promoters of 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 promoters 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 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 provided 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 hereinbefore enabled to sell and convey, the promoters of the undertaking shall be entitled to immediate possession of such lands. 29 VICTORIA, No. 289. Where parties or do not title or cannot be found the "The Lands Clauses Consolidation Act 1845" 8. 76. 334. If the owner of any such lands purchased 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 refuse to convey 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 purchase money by him to the satisfaction of the promoters of the undertaking, or if to be deposited. he refuse to convey or release such lands as directed by the promoters of the undertaking, or if any such owner be absent from Victoria, or cannot after diligent enquiry be found, or fail to appear on the enquiry before a jury as herein provided for, it shall be lawful for the promoters of the undertaking to deposit the purchase 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 master in equity to be placed (except in the cases herein otherwise provided for) to his account there to the credit of the parties interested in such lands (describing them so far as the promoters of the undertaking can do) subject to the control and disposition of the Supreme Court. Upon deposit being made a receipt to be given and the lands to vest being executed. Ib. s. 77. 335. Upon any such deposit of money as last aforesaid being made, the cashier at the bank shall give to the promoters of the undertaking or to the party paying in such money by their direction upon a deed poll a receipt for such money, specifying therein for what and for whose use (described as aforesaid) the same shall have been received and in respect of what purchase the same shall have been paid in; and it shall be lawful for the promoters of the undertaking (if they think fit) to execute a deed poll, under the 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, containing a description of the lands in respect whereof such deposit shall have been made, and declaring the circumstances under which and the names of the parties to whose credit such deposit shall have been made; and thereupon 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 absolutely in the promoters of the undertaking; and as against such parties they shall be entitled to immediate possession of such lands. Application of sited. Ib. s. 78. 336. Upon the application by petition of any party making moneys so depo- claim to the money so deposited as last aforesaid or any part thereof or to the lands in respect whereof the same shall have been so deposited or any part of such lands or any interest in the same, the Supreme Court may in a summary way as to such court shall seem fit order such money to be laid out or invested in Government securities, or may order distribution thereof or payment of the interest thereon according 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.(a) (a) R., seised of land at Prahran, on the 13th July 1854, borrowed £50 of M., and, to secure repayment with interest, deposited his title-deed with M., and gave him a memorandum acknowledging the debt. He then went to the goldfields, and has never been heard of since. The Melbourne and Suburban Railway Company took the land, under their Act, and, on the 9th Feb. 1860, paid the value of the land (£55) into the savings bank to the credit of R., or other the person or persons interested in the land. M. presented a petition, praying that the £55 with all interest accrued might be paid to him; and moved accordingly, under the 76th, 77th, and 78th clauses of the "Lands Clauses Consolidation Act," on affidavits of the loan and the owner. dation Act 1845" 337. If any question arise respecting the title to the lands in 29 VICTORIA, respect whereof such moneys shall have been so paid or deposited as No. 289. aforesaid, the parties respectively in possession of such lands as being Party in possesthe owners thereof or in receipt of the rents of such lands as being sion to be deemed entitled thereto at the time of such lands being purchased or taken "The Lands shall be deemed to have been lawfully entitled to such lands until Clauses Consoli the contrary be shown to the satisfaction of the Supreme Court; and 8.79. 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 interest on the securities purchased therewith; and the same shall be paid and applied accordingly. Ib. s. 80. 338. In all cases of moneys deposited in the bank under the costs in cases of provisions of this Part or the special Act or any Act incorporated money deposited. therewith, except where such moneys shall have been so deposited by reason of the wilful refusal of any party entitled thereto 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 Supreme Court to order the costs of the following matters (including 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 reinvestment thereof 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 interest on 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 such as are occasioned by litigation between adverse claimants. Provided always that the costs of one application only for reinvestment in land shall be allowed, unless it shall appear to the Supreme Court that it is for the benefit of the parties interested in the said moneys that the same should be invested in the purchase of lands in different sums and at different times; in which case it shall 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 undertaking. Ib. s. 81. 339. Conveyances of land to be purchased under the provisions Form of conof this Part or the special Act or any Act incorporated therewith veyances. may be according to the form in the Fifth Schedule hereto or as Fifth Schedule. near thereto as the circumstances of the case will admit, or by deed in any other form which the promoters of the undertaking may think fit and all conveyances made according to the form in the said schedule 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 : its terms, and of such inquiries after R., without success, as raised the inference that he was dead or out of the jurisdiction. The court, on the ground that it had no jurisdiction to make the VOL. III. 2 F order prayed, refused the motion.-Ex parte Murdoch, in re "The Melbourne and Suburban Railway Act 1857," 1 W. & W. (Eq.), 269. No. 289. 29 VICTORIA, 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 compensated for by the consideration therein mentioned; but 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 undertaking to attend the reversion and inheritance. Cost of con- dation Aet 1845" 8. 82. 340. The costs of all such conveyances shall be borne by the promoters of the undertaking; and such costs shall include all Clauses Consoli- charges and expenses incurred on the part as well of the seller as of the purchaser of all conveyances and assurances of any such lands, and of any outstanding terms or interests therein, and of deducing evidencing and verifying the title to such lands terms or interests, and of making out and furnishing such abstracts 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. Taxation of costs Ib. s. 83. 341. If the promoters of the undertaking and the party entitled of conveyances. to any such costs shall not agree as to the amount thereof, such costs shall be taxed by the master in equity, upon an order of the Supreme Court to be obtained upon petition 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 hereinbefore provided in other cases of costs; and the expense of taxing such costs 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. Payment of price vious to entry. Ib. s. 84. 342. The promoters of the undertaking shall not, except by to be made pre- consent of the owners and occupiers, enter upon any lands which shall be required to be purchased or permanently used for the purposes and under the powers of this Part 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 that, for the purpose merely of surveying and taking levels of such lands and of probing or boring to ascertain the nature of the soil and of setting out the line of 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 occupiers thereof, to enter upon such lands without previous consent, making compensation for any damage thereby occasioned to the owners or occupiers thereof. But entry may be made after notice and with out consent for survey and other preliminaries. before purchase security. dation Act 1845" 343. Provided also that if the promoters of the undertaking 29 VICTORIA, shall be desirous of entering upon and using any such lands before No. 289. an agreement shall have been come to or an award made or verdict Promoters may given for the purchase money or compensation to be paid by them enter on lands in respect of such lands, it shall be lawful for the promoters of the on proper undertaking to deposit in the bank by way of security as hereinafter "The Lands mentioned either the amount of purchase money or compensation Clauses Consoli claimed by any party interested in or entitled to sell and convey s. 85. such lands and who shall not consent to such entry or such a sum as shall by a surveyor appointed by two justices in the manner hereinbefore provided in case of parties who cannot be found be determined to be the value of such lands or of the interest therein which such party is entitled to or enabled to sell and convey, and also to give to such party a bond, under the common seal of the promoters 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, with two sufficient sureties, to be approved of by two justices in case the parties differ, in a penal sum equal to the sum so to be deposited, conditioned for payment to such party or for deposit in the bank for the benefit of the parties interested in such lands as the case may require under the provisions herein contained of all such purchase money or compensation as may in manner herein before provided for be determined to be payable by the promoters of the undertaking in respect of the lands so entered upon together with interest thereon at the rate of five pounds per centum per annum from the time of entering on such lands until such purchase money or compensation shall be paid to such party or deposited in the bank for the benefit of the parties interested in such lands under the provisions herein contained and upon such deposit by way of security being made as aforesaid and such bond being delivered or tendered to such nonconsenting party as aforesaid, it shall be lawful for the promoters of the undertaking to enter upon and use such lands without having first paid or deposited the purchase money or compensation in other cases required to be paid or deposited by them before entering upon any lands to be taken by them under the provisions of this Part of this Act or the special Act. paid. 344. The money so to be deposited as last aforesaid shall be Account to which paid into the bank in the name and with the privity of the master deposit is to be in equity to be placed to his account there to the credit of the parties Ib. s. 86. interested in or entitled to sell and convey the lands so to be entered upon and who shall not have consented to such entry, subject to the control and disposition of the said court: and upon such deposit Bank to give rebeing made the cashier of the bank shall give to the promoters of ceipt for deposit. the undertaking or to the party paying in such money by their direction a receipt for such money, specifying therein for what purpose and to whose credit the same shall have been paid in. and to be applied tion of the court. 345. The money so deposited as last aforesaid shall remain in Deposit to rethe bank by way of security to the parties whose lands shall so have main as a security been entered upon for performance of the conditions of the bond to upon the direcbe given by the promoters of the undertaking as hereinbefore men- Ib. s. 87. tioned; and the same may on the application by petition of the promoters of the undertaking be ordered to be invested in Government securities and accumulated; and upon the condition of such - 2 F 2 |