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 purchasemoney 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 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.

Where the company enter wrongfully a bill for injunction will lie; or ejectment or trespass may be maintained. Doe d. Hutchinson v. Manchester, &c. Railway Co., 14 M. & W. 687; 15 L. J., Ex. 208. Where the company, under a misapprehension that a tenant for life was owner in fee simple, agreed with him and took possession and constructed their works, on a bill by remaindermen and mortgagees the court restrained the company from retaining possession. Perks v. Wycombe Railway Co., 3 Giff. 662; 7 L. T., N. S. 150; 8 Jur., N. S. 1051.

Where the company, acting bond fide, made a mistake as to the land taken and began their works, and the question between the company and the landowner was one merely of value, and there had been delay on the part of the landowner, the court refused by injunction to stay the works. Wood v. Charing Cross Railway Co., 33 Beav. 290. And as to mistake regarding whether the land entered upon had been paid for or not, see Tomlinson v. Manchester and Birmingham Railway Co., 2 Rail. Cas. 104.

The landowner should not be guilty of any laches in case of a wrongful entry. See Fooks v. Wilts, Somerset and Weymouth Railway Co., 4 Rail. Cas. 210; 5 Hare, 199; and see Doe d. Hudson v. Leeds and Bradford Railway Co., 16 Q. B. 796; 20 L. J., Q. B. 486.

The 84th section does not apply to the case of damage to the property of another consequential upon the exercise of the powers of the company upon their own land. Hutton v. London and South Western Railway Co., 7 Hare, 259; 18 L. J., Ch. 345; 13 Jur. 486; and see Lister v. Lobley, 7 Ad. & E. 124.

As to when a tenant will be considered an "owner," see Rogers v. Kingston-upon-Hull Dock Co., 34 L. J., Ch. 165; 11 L. T., N. S. 42, 463. Where the parties proceed under the 85th section the ordinary lien of the landowner for unpaid purchase-money is not excluded. Walker v. The Ware, Haddam, and Buntingford Railway Co., 35 L. J., Ch. 94; L. R., 1 Eq. 195; 13 L. T., N. S. 517.

As to the remedy of the landowner where the works have been suffered to be completed, but the purchase-money has remained unpaid in whole or in part, see Cosens v. Bognor Railway Co., L. R., 1 Eq. 594; 36 L. J., Ch. 104; 14 W. R. 1002; Sedgwick v. Watford and Rickmansworth Railway Co., 36 L. J., Ch. 379; Capps v. Norwich and Spalding Railway Co., 11 W. R. 657; 9 Jur., N. S. 635; Griffiths v. Crystal Palace and South London Junction Railway Co., 14 L. T., N. S. 753; 12 Jur., N. S. 560; and Winchester (Bishop of) v. Mid-Hants and London and South Wes

Promoters to

be allowed to

before pur

chase, on mak

ing deposit by way of security and giving bond.

tern Railway Co., 37 L. J., Ch. 64; L. R., 5 Eq. 17; 17 L. T., N. S. 161; Raper v. Crystal Palace Co., 18 L. T., N. S. 8; Walker v. Ware, &c. Railway Co., supra.

See further, as to the vendor's lien for unpaid purchase-money, Williams v. Great Eastern Railway Co., 18 L. T., N. S. 458; Att.-Gen. v. Sittingbourne and Sheerness Railway Co., L. R., Eq. 636; 35 L. J., Ch. 318; Wing v. Tottenham and Hampstead Junction Railway Co., L. R., 3 Ch. App. 679; 37 L. J., Ch. 654; Earl of Jersey v. Britton Ferry Floating Dock Co., L. R., 7 Eq. 409; Sutton v. Hoylake Railway Co., 20 L. T., N. S. 214.

LXXXV. Provided also, that if the promoters of the underenter on lands taking shall be desirous of entering upon and using any such lands before an agreement shall have been come to or an award made, or verdict given for the purchase-money or compensation to be paid by them in respect of such lands, it shall be lawful for the promoters of the undertaking to deposit in the bank by way of security, as hereinafter mentioned, either the amount of purchase-money or compensation claimed by any party interested in or entitled to sell and convey 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 the 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

See ante, s. 59, p. 632. Now, by the 30 & 31 Vict. c. 127, s. 36, it is provided as follows:-"Where after the passing of this act a company exercise the powers conferred on the promoters of the undertaking by sect. 85 of the Lands Clauses Consolidation Act, 1845, the following provisions shall have effect:

"(1.) The surveyor to be appointed, as in that 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 than seven days' notice of their intention to apply to the board of trade for the appointment of a surveyor to any party interested in or entitled to sell and convey the lands in question, 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 company 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.”

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 hereinbefore provided 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 non-consenting 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 or the special act.

Where at the time of filing the bill the plaintiffs were entitled to an injunction against a railway company to restrain them from using their land, damages were awarded at the hearing, although no injunction was in fact obtained, and the plaintiffs' interest in the land had meanwhile determined. M'Rae v. London, Brighton and South Coast Railway Co., 37 L. J., Ch. 267; 18 L. T., N. S. 226.

Proceedings under the 85th section are not necessarily invalidated in consequence of the award having been signed on a day subsequent to that on which the money was paid into court and the bond given. Stamps v. Birmingham, &c. Railway Co., 6 Rail. Cas. 123; 7 Hare, 256.

If the bond given be not in conformity with the requirements of the act, an injunction will be granted until a proper bond be executed. Poynder v. Great Northern Railway Co., 2 Phillips, 330; 5 Rail. Cas. 196. If the owners be tenants in common and the bond be made to them jointly it is insufficient. Langham v. Great Northern Railway Co., 1 De G. & S. 486; 5 Rail. Cas. 263; 16 L. J., Ch. 437; and see Daubeney v. Manchester, &c. Railway Co., 10 L. T., N. S. 283. Where the bond was to pay the landowner, his executors, &c., "or to deposit in the Bank of England or otherwise," the bond was held insufficient in consequence of the introduction of the words "or otherwise." Hoskins v. Phillips, 5 Rail. Cas. 560; 3 Exch. 181; 18 L. J., Ex. 1; 12 Jur. 1030. See the following other cases turning on the construction of particular expressions in the bond:-Cotter v. Metropolitan Railway Co., 10 Jur., N. S. 1014; 12 W. R. 1021; Dakin v. London and North Western Railway Co., 3 De G. & S. 414; 13 Jur. 579; Willey v. South Eastern Railway Co., 1 Mac. & G.

Upon deposit being made cashier to give receipt.

58; 6 Rail. Cas. 100; Poynder v. Great Northern Railway Co., supra, Langham v. Great Northern Railway Co., supra.

and

The justices may give their approval of the sureties ex parte. Langham v. Great Northern Railway Co., 1 De G. & S. 486; 5 Rail. Cas. 263; 16 L. J., Ch. 437; Poynder v. Great Northern Railway Co., 2 Phillips, 330; 5 Rail. Cas. 196.

As to the position of equitable mortgagees who were not parties to the inquiry, see Martin v. London, Chatham and Dover Railway Co., on appeal, L. R., 1 Ch. App. 501; 35 L. J., Ch. 795; 12 Jur., N. S. 775.

The court will consider the production of the bond by the company sufficient prima facie evidence that the conditions of it have been fulfilled. London and North Western Railway Co., In re, 26 L. T., N. S. 687.

When the company, having given notice to take part, have been required to take the whole, the deposit and bond should be for the whole. Dadson v. East Kent Railway Co., 7 Jur., N. S. 941; see also Giles v. London, Chatham and Dover Railway Co., 1 Dr. & Sm. 406; 30 L. J., Ch. 603.

As to including compensation for severance, &c., see Field v. Caernarvon and Llanberis Railway Co., L. R., 5 Eq. 190; 37 L. J., Ch. 176; 17 L. T., N. S. 534.

The bond should cover all the land included in the notice. Barker v. North Staffordshire Railway Co., 5 Rail. Cas. 401; 2 De G. & S. 55.

The bond is not security for compensation in respect of minerals payable under ss. 78-81 of the Railway Clauses Act. Neath and Brecon Railway Co., Ex parte, L. R., 2 Ch. Div. 201; 45 L. J., Ch. 196; 24 W. R. 357.

Where the company have entered upon and taken land under the provisions of sect. 85, within the period prescribed for exercising their compulsory powers, their continuance in possession after that period, without making compensation to the owner of the land, does not render their original entry unlawful. Worsley v. South Devon Railway Co., 16 Q. B. 539; 20 L. J., Q. B. 254; Doe d. Armistead v. North Staffordshire Railway Co., 16 Q. B. 526; 20 L. J., Q. B. 249. An entry begun wrongfully does not preclude a company continuing in possession when they have done all that was originally required to render their entry rightful. Willey v. South Eastern Railway Co., 6 Rail. Cas. 100; 1 Hall & Twells, 56; 1 Mac. & G. 58; 18 L. J., Ch. 201.

Where the amount deposited is less than the amount ultimately fixed as the value of the land, the company may be ordered to pay the extra amount forthwith into court. Ashford v. London, Chatham and Dover Railway Co., 14 L. T., N. S. 787.

Where a company have entered on land before the price is settled, the vendor will be entitled to interest at 4 per cent. on the purchase money from the date of the company's entry, and not merely from the date when the price is fixed. Rhys v. Dare Valley Railway Co., L. R., 19 Eq. 93; 23 W. R. 23. A landowner has no lien or claim for his costs on a fund deposited as security under this section. Neath and Brecon Railway Co., Ex parte, L. R., 9 Ch. App. 263; 43 L. J., Ch. 277; 22 W. R. 242; 30 L. T., N. S. 3.

See also Bush v. Trowbridge Waterworks Co., cited ante, p. 611.

LXXXVI. The money so to be deposited as last aforesaid shall be paid into the bank in the name and with the privity of the accountant general of the Court of Chancery in England* or the Court of Exchequer in Ireland, to be placed to his account there to the credit of the parties interested in or entitled to sell and convey the lands so to be entered upon,

* Now paymaster general; see foot note ante, p. 640.

and who shall not have consented to such entry, subject to the control and disposition of the said court; and upon such deposit being made, the cashier of the bank shall give to the promoters of 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.

remain as a

under the

court.

LXXXVII. The money so deposited as last aforesaid shall Deposit to remain in the bank, by way of security to the parties whose security, and lands shall so have been entered upon for the performance of to be applied the condition of the bond to be given by the promoters of the direction of the undertaking, as hereinbefore mentioned, and the same may, on the application by petition of the promoters of the undertaking, be ordered to be invested in bank annuities or government securities, and accumulated; and upon the condition of such bond being fully performed it shall be lawful for the Court of Chancery in England or the Court of Exchequer in Ireland, upon a like application, to order the money so deposited, or the funds in which the same shall have been invested, together with the accumulation thereof, to be repaid or transferred to the promoters of the undertaking, or if such condition shall not be fully performed, it shall be lawful for the said court to order the same to be applied in such manner as it shall think fit for the benefit of the parties for whose security the same shall so have been deposited.

Upon the condition of the bond being satisfied the company are entitled to have the deposit returned to them without deduction; In re South Western Railway Co., Ex parte Stevens, 5 Rail. Cas. 437; 2 Phillips, 772. See also In re London and Southampton Railway Co., 16 Sim. 165; and Re Fooks, 2 Mac. & G. 357.

Where the transaction goes off the court will order the deposit to be repaid to the company, and will not order the costs incurred respecting the purchase to be paid out of the fund in court. Ex parte Great Northern Railway Co., 17 L. J., Ch. 314; 12 Jur. 885; 16 Sim. 169; 5 Rail. Cas. 269. And see further, as to the costs of suit on abandonment of purchase, Ex parte Birmingham, Wolverhampton, and Dudley Railway Co., 1 H. & M. 772. And see also Re Wimbledon and Dorking Railway Act, 9 L. T., N. S. 703.

LXXXVIII. If at any time the company be unable, by The company reason of the closing of the office of the accountant general of the Court of Chancery in England* or the Court of Exchequer in Ireland, to obtain his authority in respect of the payment

See note ante, p. 640.

may pay the deposit money into the bank security during by way of