upon the Company to issue a Warrant to the Sheriff to summon a Jury to assess the Amount of Compensation, which the latter refused to do. Upon a Bill filed to compel them to do so, under the 68th Section of the Act -Held, that a Demurrer for Want of Equity was not ·sustainable, inasmuch as the Plaintiffs' Right to proceed at Law by Mandamus did not deprive a Court of Equity of its Jurisdiction to enforce a specific Perform ance as between Vendor and Purchaser.

Wood and Bigg, for the demurrer.-This Court has no equitable jurisdiction, the plaintiffs' remedy being purely legal, by mandamus. The case is distinguishable from that of Walker v. The Eastern Counties Railway Company, for here the plaintiffs have not done any one act to entitle them to relief. The plaintiffs' contract, if any, was to buy, according to the forms of the act; yet now they seek to send the Company to a jury in a manner quite contrary to the terms of the Lands Clauses Consolidation Act.

The following authorities were referred to during the argument:-Sugd. V. & P., I, 336, (10th ed.); Beardmore v. The London and North-western Railway Company, (ante, p. 327); Walker v. The Eastern Counties Railway Company, (6 Hare, 594; 12 Jur. 787); Stone v. The Commercial Railway Company, (4 My. & C. 122); Webb v. The Manchester and Leeds Railway Company, (4 My. & C. 116); Withy v. Cottle, (1 S. & S. 174; affirmed on appeal, 1 Turn. 78); Adderley v. Dixon, (1 S. & S. 607); Weale v. The West Middlesex Waterworks, (1 J. & W. 358).

This case came before the Court upon a demurrer for want of equity. The plaintiffs were carriage-builders The Solicitor-General and J. H. Law, in support of and engineers near Bow, in the county of Middlesex. the bill.-The 68th section shews that it is not comTheir bill prayed that it might be declared that the Com-pulsory upon parties, who seek compensation for land pany were bound to complete the purchase of the estate taken by a railway company, to name the price before and interest of the plaintiffs in certain premises which the case was taken before a jury. The onus of doing they had required, by a notice, dated the 8th Novem- that is thrown by the act upon the purchasers, who are ber, 1847; and that, for the purpose of ascertaining the the Company. amount due to the plaintiffs in respect of their rights and interests, and for the consequential damage to them, the Company might be decreed forthwith to take all fit and proper proceedings, in order that the amount of the purchase-money and compensation to which the plaintiffs were entitled might be determined and settled, according to the provisions of the Lands Clauses Consolidation Act, 1845. The bill also prayed the directions consequential upon the decree so sought by the bill. According to the statements made by the bill, the Company had, on the 19th July, 1847, served the plaintiffs with notice of their intention to take some Sir JAMES WIGRAM, V. C., at the close of the arguland, of leasehold tenure, belonging to them, for the ment, observed, that, when the case of Walker v. The purposes of the railway. The plaintiffs sent in their Eastern Counties Railway Company was brought before claim for compensation on the 9th of the following him, he was strongly impressed with the expediency of month, and demanded a sum of 6667., with a deduction not permitting such bills to be filed. The remedy by of 807. per annum from the rent upon three houses and mandamus was much more simple, and was equally a cottage, the plaintiffs being lessees of a portion of the efficacious; besides which, greater costs were incurred property. On the 9th November the Company (who by coming to equity. He had, therefore, guarded himhad not followed up their first notice by any proceed-self by the observation, that if a party chose to take his ings) caused another notice to be served upon the plain-equitable remedy, when he might have one equally tiffs, extending to some additional quantity of land be- effectual and less expensive at law, it might be queslonging to the latter. Nothing being done upon either tionable whether the Court would go into the account notice, the solicitors met in February, 1848, and endea- at the hearing. Still, the question which had forced voured, but without success, to come to some agree- itself upon his mind was, could he repudiate the jurisment for the purchase of the plaintiffs' property. Upon diction of the Court in a case where one of two parties the failure of this negotiation, the Company determined chose to come into equity? It had been laid down, that to proceed under the powers given by the 85th section of notice by the parties, in such a case as this, fixed them the Lands Clauses Consolidation Act, and served notice, with the parliamentary contract, and then the jurisdicon the 30th June, 1848, upon the plaintiffs, and, hand- tion attached immediately. Unless there were someing them the bond required by that act, entered upon, thing more in the case, he did not see how he could reand took possession of, their land. Subsequent attempts fuse to exercise the jurisdiction. His recollection had at a satisfactory arrangement having failed, the plain-carried him back to cases in which it was difficult to tiffs called upon the Company to summon a jury to asunderstand why the Court entertained a bill by a certain the value of their property, which the Company vendor who wanted nothing but his purchase-money, had not done. Thereupon the present bill was filed, for the title being accepted, when an action at law would the purpose of compelling the Company to proceed settle it, there being nothing special in the case. It under the 18th section of the 8 & 9 Vict. c. 18*. was easily understood why the Court would decree the payment of purchase-money where a special case was what the party ought to have. There it was a matter made, shewing that an action at law would not give of course that the vendor should have a right to file the bill. Sir Edward Sugden had stated, as a general proposition, that a court of equity would not, in general, enforce the performance of a contract, where damages

* The section provides as follows:-" If any party shall be entitled to any compensation in respect of any lands, or of any interest therein, which shall have been taken for, or injuriously affected by, the execution of the works, and for which the promoters of the undertaking shall not have made satisfaction, under the provisions of this or the special act, or any act incorporated therewith, and if the compensation claimed in such case shall exceed the sum of 50%., each party may have the same party so entitled as aforesaid desire to have such question of settled, either by arbitration or by the verdict of a jury, as he compensation settled by jury, it shall be lawful for him to give shall think fit; and if such party desire to have the same set-notice in writing of such his desire to the promoters of the tled by arbitration, it shall be lawful for him to give notice in undertaking, stating such particulars as aforesaid; and unless writing to the promoters of the undertaking of such his desire, the promoters of the undertaking be willing to pay the amount stating in such notice the nature of the interest in such lands of compensation so claimed, and enter into a written agreein respect of which he claims compensation, and the amount ment for that purpose, they shall, within twenty-one days after of the compensation so claimed therein; and unless the pro- the receipt of such notice, issue their warrant to the sheriff to moters of the undertaking be willing to pay the amount of com - summon a jury for settling the same in the manner herein propensation so claimed, and shall enter into a written agreement vided; and, in default thereof, they shall be liable to pay the for that purpose within twenty-one days after the receipt of party so entitled as aforesaid the amount of compensation so any such notice from any party so entitled, the same shall be claimed, and the same may be recovered by him, with costs, settled by arbitration, in the manner herein provided; or if the by action in any of the superior courts."

they had not paid for the land. Some time elapsed, but the result was, that the plaintiffs wrote a letter to the defendants, in which they called upon them to issue their warrant to the sheriff to impannel a jury, and give both parties their opinion as to the price to be paid. The Company said that the case was too simple to require that expense, and they refused to be put to it. Thereupon the bill was filed. Two grounds of defence were made by the Company in that case: one was the general ground, that this Court had no jurisdiction to enforce the performance of a contract relating to railways, in a case between railway companies and those persons whose lands they took for the purposes of the act, the proper remedy being by mandamus; the other ground was founded upon the statute-that is, the Lands Clauses May 5.-Sir JAMES WIGRAM now gave judgment. Consolidation Act-and upon the state in which the case In this case the plaintiffs, at the time of filing their was found at the time when the bill was filed, it being bill, were engineers, carriage-builders, and contractors, argued, that the plaintiffs were the parties upon whom, near Stratford, and were entitled to some leasehold according to the true construction of the act, the onus property, which the Railway Company were desirous was cast of taking the next step for ascertaining the of taking for the purposes of their railway. The right price. It was argued, that, if that were the case at the of the Company to take that property was not in time the bill was filed, the Company were not in dedispute. On the 9th November the Company gave fault; and that if the first point-namely, the denial the notice required by the act, stating that they in- of the jurisdiction of the Court-were taken away, yet, tended to take the property, which was the subject of upon the second, such a bill could not be sustained. this suit. A previous notice had been given of the in- Now, as I have just observed, supposing the case to tention of the Company to take a less quantity of land have stopped with the notice, there is no doubt the than that which was comprised in the notice of the 9th onus would have been thrown upon the Company. The November, 1847; but, as I understand, according to the Company, however, have got into possession, under statements in the bill, the second notice comprises all the 84th and other clauses, (which empower the Com the land which was mentioned in the first, and some-pany to take possession), without having paid the price. thing else. No question is raised upon the pleadings The 68th section says, that where the Company have as to the right of the Company to abandon the first, for taken possession of land, or otherwise have injuriously the purpose of giving the second notice. I understand affected lands belonging to other persons, those other the plaintiffs to admit, without any objection, that the persons may have the compensation settled by arbitrasecond notice, if followed up, was a valid notice. After tion or by a jury. The question raised in argument this notice of November, 1847, a treaty took place be- has been, whether this case is within the 68th section. tween the Company and the plaintiffs, and also the I should most reluctantly decide that this case is not lessor of the plaintiffs; and, according to the statements within that 68th section-I certainly should not decide of the bill, agreements were come to, under which the it without being compelled. I cannot help thinking interests of the landlord were to be satisfied, and under that this 68th section of the act was intended to cover which the rights and interests of the plaintiffs also every case in which the Company, whether by right or were to be satisfied. And if the allegations in the bill by wrong, or by any other means, obtained possession are to be taken to be true, it appears to me that an agree- of property for which they had not paid, or where, in ment was actually come to between the plaintiffs and the exercise of the powers of the act, they had "injathe defendants a private agreement-settling the terms riously affected" the property of others, for which inupon which the Company were to take the land. If I jury they were bound to make compensation. Prima were at liberty to consider the agreement as in force, facie, that is probably the meaning of the 68th section; I apprehend there could be very little doubt that the but that does not appear to be decisive of the case. It jurisdiction of the Court would attach; but, according is a privilege, and of some importance in some cases, to the allegations of the bill, I understand that the that the owner of the land has a right to throw upon plaintiffs, although they insist that the agreement was the Company the onus of taking the initiative of come to, waive their right under it, and were contented, making an offer of a price, and of summoning a jury; long before the bill was filed, to take the price of the and the question is, not whether the plaintiffs might land, which price was to be settled by a jury. The have succeeded under the 68th section, if they had Company having given this notice, the first notice hav- done so, but, taking it for granted that the onus was ing been abandoned, and the agreement being put out upon the Company to issue their warrant to the sheriff of sight, according to the statements in the bill, the after the notice, whether that onus was discharged by question is, what, in that state of things, was the duty the Company having claimed the benefit of that provi of the Company. The duty of the Company, in that sion of the act which enables them to deposit a sum case, was to issue a warrant to the sheriff, requiring him as a security only, and to take possession without to summon a jury to ascertain the value of the land, having paid the price. The two cases are perfectly or the price to be paid by the Company to the plain- consistent. The Court may give the plaintiffs the right tiffs. That step has not been taken. If the case had to throw that onus upon the Company, but that right rested there, I apprehend there could have been no may be different, according to the circumstances, and doubt that this case would be within the authority of it may deserve consideration, in what way the Court Walker v. The Eastern Counties Railway Company. will deal with the question of costs where parties But there the parties went on with the treaty for some unnecessarily come here. The question to be detime, and what followed was this: The Company, being cided is, whether the right which is conferred on desirous of taking immediate possession, caused a value the plaintiffs, in that case, deprives them of the be to be put by a surveyor, according to the terms of the nefit which they would have if the Company were act, upon the property; they made a deposit in the discharged from the obligation to take steps for ascer mode required by the act, and became entitled, by vir- taining the price to be paid. I think the case is not tue of that security, to enter into possession, although one in which I can refuse to exercise the jurisdiction (if the price was not actually ascertained, and although any). But upon the question, whether I should decide

would equally give the party all to which he was entitled. The reason assigned for the interference of equity was, that the remedies were mutual; and the cases of Withy v. Cottle (1 S. & S. 174) and Adderley v. Dixon (Id. 607) were referred to. Sir John Leach, in those cases, explained the reasons which induced the Court to interfere, namely, because in equity the Court gave mutual remedies; for, as one party had a right to file a bill for specific performance, so the other had a right in equity, although an action at law would be equally beneficial to that party. Another reason was, that in some cases it had been said, that if an act of Parliament created a right, and at the same time gave a remedy, courts of ordinary jurisdiction were imperatively bound to confine parties to that remedy.

C

Secondly, that the Court ought to interfere summarily, and set aside the Writ of Summons..

ton were subject to a modus of 107. in lieu of all and all manner of tithes to the plaintiff; the second, on an assertion by the plaintiff that the tithes due and payable to him by the defendants, in respect of the said lands of the defendants, were of the value of 300l. The facts are sufficiently stated in the judgment of the Court. In Michaelmas Term, 1848*,

that the Court has no jurisdiction, this demurrer, of course, would merely decide the abstract point that the Court has no jurisdiction. If it has jurisdiction, whatRule calling upon the plaintiff to shew cause why ever I might do at the hearing, on the ground of the the writ of summons in this case, and all subsequent peculiarities of the case-if the Court has jurisdiction, proceedings, should not be set aside. The plaintiff was I cannot hold that the demurrer is sustainable. On the rector of Pudding Norton, and the defendants were that point, it does appear to me, upon the question landowners of that parish. The writ of summons iswhether the Court has jurisdiction to interfere between sued on the 31st August, 1848, under sect. 46 of stat. railway companies and the persons of whom they pur- 6 & 7 Will. 4, c. 71, by which an appeal by an issue in chase land-I certainly retain the impression I have law is given to any person dissatisfied with the decision already stated more than once, as to the inconvenience of the Tithe Commissioners or Assistant Tithe Comof parties coming into a court of equity in order to obtain missioner; and a feigned issue was delivered on the that which they would be entitled to by means of a 9th September following. The declaration contained mandamus. Upon the question as to the jurisdiction of two counts: the first, on an assertion by the defendthe Court, the way in which the case strikes me is thisants that the lands of the defendants in Pudding NorI put it thus: the same act which gives a right gives a remedy: here there is great authority for saying the party is entitled to a remedy; but where the act does not prescribe a specific remedy, it has always been held that the party is entitled to any remedy, at law or in equity, which is given in cases of a similar kind, when a question arises otherwise than under an act of Parliament. If, after notice given by the Company to take land, and after tendering the price, the owner should attempt to deal with the property in a manner injurious to the Company, and refuse to execute the conveyances which the act requires, it appears to me impossible to deny the jurisdiction of the Court in that case. My impression is, that the Court has always said, (whether the reasoning is satisfactory or not), that, without proving a special case, the vendor may always come to the Court simply to recover the purchase-money and interest; that is, whether he shews a case of special damage, for which a court of law would make him compensation, or not. The cases of Withy v. Cottle and Adderley v. Dixon, upon which Sir Edward Sugden has expressed an opinion, appear to be authorities. Where the act of Parliament simply gives a right, but does not give a remedy for enforcing the conveyance and purchase-money, I think the party may either go to a court of law for a mandamus, or come into a court of equity for a decree. In the case of a purchaser filing a bill, the conveyance being refused, and no injury done to the property, the party might come here and ask for a conveyance. In either case he has a very simple course open to him. According to my apprehension, the jurisdietion of the Court attaches. I cannot deny the jurisdiction of the Court in the case of breach of contract arising between such parties. The demurrer must, therefore, be overruled, with costs, to be paid by the Company.

COURT OF QUEEN'S BENCH. SITTINGS IN BANC AFTER HILARY TERM. HOMFRAY, Clerk, v. SCROOPE and Others.-Feb. 8. By Sect. 46 of Stat. 6 & 7 Will. 4, c. 71, any Person dissatisfied with the Decision of the Assistant Tithe Commissioner may cause an Action to be brought against the Person in whose Favour such Decision shall have been made, within Three Months next after such Decision shall have been duly notified.

The Assistant Tithe Commissioner pronounced his Decision in Favour of a Modus on the 30th March, 1846, which was notified to the Rector on the 18th April following. He died on the 18th May, without having commenced an Action to dispute it. The Benefice was vacant until the Plaintiff was presented in 1848, he was inducted on the 12th July in that Year, and on the 31st August he issued a Writ of Summons, under Sect. 46.

Held, first, that the Period during which the Benefice was racant could not be excluded from the Computation of the Three Months, and, therefore, the Action was too late.

Sir F. Thesiger shewed cause. The question is, whether it is competent for the present rector to appeal against the decision of the Assistant Tithe Commissioner, though the three months limited by sect. 46 of stat. 6 & 7 Will. 4, c. 71, have passed. By the 47th section, "no proceeding of or before the commissioners or assistant commissioner, or in any action, or in any case stated on reference, in pursuance of this act, shall abate or cease by reason of the death of any person interested therein." But that does not meet this case. It cannot, however, have been intended to prevent the rector from questioning the decision of the Tithe Commissioners or Assistant Tithe Commissioner, when the three months had expired before he was inducted or was interested in the tithes, but had not expired in the lifetime of the rector to whom the decision of the Assistant Tithe Commissioner was notified. In computing the three months, the whole period of the vacancy must be excluded. During that time there was no person to advocate the rights of the church. "If a parson dieth, now the freehold of the glebe of the parsonage is in none during the time the parsonage is void, but is in abeyance, viz. in consideration and in the understanding of the law, until another be made parson of the same church, and immediately when another is made parson the freehold in deed is in him as successor." (Litt., s. 647). And in Co. Litt., 341. a., it is said, "A parson or vicar, for the benefit of the church and of his successor, is in some cases esteemed in law to have a fee-simple qualified; but to do anything to the prejudice of his successor, in many cases the law adjudgeth him to have, in effect, but an estate for life. Eeclesia fungitur vice minoris, meliorem facere potest conditionem suam, deteriorem nequaquam." The Court will not decide the case upon this motion; it may direct a mandamus to the landowners to join in the feigned issue, to which they would return that they were not bound in law to do so; and the question would be raised in a proceeding which might be taken before a court of error; whereas no writ of error lies upon a judgment upon a feigned issue. (Thorpe v. Plowden, in error, 2 Exch. Rep. 387).

Sir F. Kelly and Badeley, contra. In all cases under the statutes of limitation, when the period has once begun to run, no death or other disability will prevent it continuing to run. (Prideaux v. Webber, 1 Lev. 31; Rhodes v. Smethurst, 4 Mee. & W. 42; affirmed in error, 6 Mee. & W. 350). [Erle, J.-The existence of the corporation sole is suspended upon the death of the rector. Coleridge, J.-There is nothing * Nov. 23, before Lord Denman, C. J., Coleridge, Wightman, and Erle, JJ.

to prevent the Tithe Commissioners from beginning
proceedings during a vacancy. Would not the new
rector have three months after his induction for ap-
pealing against the decision of the commissioner? Sup-
pose the last incumbent had commenced an appeal
before his death, and his executors declined to continue
it, what would become of it?]
Cur. adv. vult.

present plaintiff has brought his action within time. The answer is, that whatever we may think the Legislature intended, or would have done wisely to provide for, it has not used any language which will bear this construction. If the limitation of three months does not apply, so neither will the power to bring any action at all, for the one is bound up in the other; and then the 45th section would remain absolute, and the decision be final.

Lord DENMAN, C. J., now delivered the judgment of the Court. This was an application to set aside a writ of summons under the Tithe Commutation Act, 6 & 7 In a statute relating to tithes it can hardly be supWill. 4, c. 71. The assistant commissioner pronounced posed that the circumstances of the death or resignahis decision on the 30th March, 1846, which was notified tion of an incumbent were not present to the minds of to the then rector, a Mr. Wilcocks, on the 18th April the framers: they have, indeed, expressly provided following. He died on the 18th May. By the decision, for the case of death after an action commenced; there establishing a modus, the value of the living was fixed is, therefore, a greater difficulty in supplying, by conat so low an amount, that a successor was not easily struction, a provision for the case of death occurring found, and, by successive lapses, the presentation came before action brought. In this part the statute bears to the Crown; and the plaintiff was not presented till the closest analogy to the general statutes of limita1848, nor inducted till the 12th July in that year. On tions; and, with regard to them, it is a well-known and the 19th of the same month the draft of the award was settled rule, that, when the time has once begun to run, deposited, under the statute, just one week after the no subsequent disability, however involuntary, will induction of the plaintiff; and, on the 31st August, he suspend their operation. And this applies not only issued the writ in question, which we are now called on where the disability is personal. Prideaux v. Webber, to set aside as not warranted by the statute: and two (1 Lev. 31), cited in the argument by Mr. Badeley, questions are made-first, whether it is too late; se- was a case soon after the Restoration, where, in answer condly, if it be, whether we ought to interfere summa- to the Statute of Limitations, it was replied that cerrily and set it aside, or leave the defendant to such tain rebels had usurped the Government, and that none other remedy as may be open to him. of the King's courts were open; but the Court held that bar good, because "there is not any exception in the act of such a case." The Legislature appears to have acted on this principle of construction immedi ately after the Revolution, when, there having been a period of ninety-two days during which no court sat, an act passed (1 Will. & M. c. 4) expressly to take those days out of computation, as regarded the Statute of Limitations. But the case, perhaps, most expressly in point is that of Rhodes v. Smethurst, (4 Mee. & W. 42, and again, in error, 6 Mee. & W. 351), also cited in argument, where the debtor having lived rather more than a year after the cause of action accruing, and then dying, in consequence of the litigation as to the right to probate no executor was appointed till after six years; an action was then commenced within reasonable time after such appointment, and was held to be barred by the statute. There, as here, it might be said that the plaintiff was guilty of no laches, for there was no one whom he could sue during the greater part of the six years; but this argument was not allowed to prevail.

The 46th section of the statute, which is a proviso on the 45th, certainly intended to give the party interested in the tithes, and dissatisfied with the decision, three months' time to dispute it in a court of law. By the 47th section it is provided, that no action, when once commenced, shall abate by reason of the death of any person interested therein; and the 48th section provides, that if the person, in whose favour the decision of the assistant commissioner shall have been made, shall die before action brought, and before the expiration of the time limited for that purpose, the action may still be brought against him nominally, as if living; and the assistant commissioner may be served with process and all notices, and the proceedings are to go on, and the rights of all parties are to be bound by the event of the action, as if such person had been living. The same section makes provision for the case where the successful party before the commissioner is under any natural or legal disability, or beyond seas; but we cannot find that any corresponding provision is made for the case of one who is unsuccessful before the commissioner; and it will be observed, that none of the provisions we have adverted to meet the case of a lapse of the limited period of three months, under any circumstances whatever.

The question, then, turns upon the construction of the 46th section. We have observed, that it is a proviso upon the 45th: limiting its operation by the enactment of the latter, the decision of the commissioners will be final, unless in a case falling within some of the subsequent provisions. One of those provisions is the bringing an action, by the party interested and dissatisfied, within three months after a written notice of the decision; and by necessary implication, under ordinary circumstances, it is clear that no such party could bring the action more than three months after the notice. The argument urged for the plaintiff is, that it was intended there should be a party capable of bringing the action during the whole of the three months; that, unless there be such party, the limitation does not apply; that, in the present case, Mr. Wilcocks had not three months, because he died at the end of the first; and that, if the months immediately following that month be included in the calculation, there will have been no one during three whole months capable of bringing the action. Wherefore it is said, that the whole period during which the living was vacant must be excluded from the computation, and then that the

We think, on the principle of these authorities, that we ought to give the words of the statute their obvious meaning, and not strain them further, in order to avoid the hardship of a particular case; and it is to be observed, that these authorities apply with even greater force in the case of a statute like the present, which provides a machinery limited in point of time for its operation. The tithe commission was by the act to endure only for five years and to the end of the then next session of Parliament; and without the acts of the commissioners no commutation could be completed. It is difficult, then, to contend for a construction of the limitation clause, which might take an indefinite period of time out of its operation.

Upon the second point we have no difficulty: it was not suggested to us in what other way than by the present application the defendants could avail themselves of the objection, nor do we perceive any.

The rule, therefore, must be absolute.-Rule absolute.

REG. (on the Prosecution of the Administrators of
Thomas Ostell, deceased) v. THE COMMISSIONERS OF
STAMPS AND TAXES.-Feb. 24.

Administratrix had taken out Probate in the Prero-
gative Court for Effects in England of a certain Value,