the time that the office of

general is closed.

of any sum of money so authorized to be deposited in the the accountant bank by way of security as aforesaid, it shall be lawful for the company to pay into the bank, to the credit of such party or matter as the case may require (subject nevertheless to being dealt with as hereinafter provided, and not otherwise), such sum of money as the promoters of the undertaking shall, by some writing signed by their secretary or solicitors for the time being, addressed to the governor and company of the bank in that behalf, request, and upon any such payment being made the cashier of the bank shall give a certificate thereof; and in every such case, within ten days after the re-opening of the said accountant general's office, the solicitor for the promoters of the undertaking shall there bespeak the direction for the payment of such sum into the name of the accountant general, and úpon production of such direction at the bank of England the money so previously paid in shall be placed to the credit of the said accountant general accordingly, and the receipt for the said payment be given to the party making the same in the usual way for the purpose of being filed at the report office.

Penalty on the promoters of the under

taking enter ing upon lands without consent before

payment of the purchasemoney.

LXXXIX. If the promoters of the undertaking or any of their contractors shall, except as aforesaid, wilfully enter upon and take possession of any lands which shall be required to be purchased or permanently used for the purposes of the special act, without such consent as aforesaid, or without having made such payment for the benefit of the parties interested in the lands, or such deposit by way of security as aforesaid, the promoters of the undertaking shall forfeit to the party in possession of such lands the sum of ten pounds, over and above the amount of any damage done to such lands by reason of such entry and taking possession as aforesaid, such penalty and damage respectively to be recovered before two justices; and if the promoters of the undertaking or their contractors shall, after conviction in such penalty as aforesaid, continue in unlawful possession of any such lands, the promoters of the undertaking shall be liable to forfeit the sum of twenty-five pounds for every day they or their contractors shall so remain in possession as aforesaid, such penalty to be recoverable by the party in possession of such lands, with costs, by action in any of the superior courts: provided always, that nothing herein contained shall be held

to subject the promoters of the undertaking to the payment of any such penalties as aforesaid, if they shall bonâ fide and without collusion have paid the compensation agreed or awarded to be paid in respect of the said lands to any person whom the promoters of the undertaking may have reasonably believed to be entitled thereto, or shall have deposited the same in the bank for the benefit of the parties interested in the lands, or made such deposit by way of security in respect thereof as hereinbefore mentioned, although such person may not have been legally entitled thereto.

See Hutchinson v. Manchester, Bury, &c. Railway Co., 15 M. & W. 314; 15 L. J., Ch. 293; 3 Rail. Cas. 748.

As to where the company have obtained the consent of some but not of all joint owners before entry, see Langford v. Brighton, Lewes and Hastings Railway Co., 4 Rail. Cas. 69; Fooks v. Wilts, Somerset, &c. Railway Co., 4 Rail. Cas. 210; 5 Hare, 199.

XC. On the trial of any action for any such penalty as Decision of aforesaid the decision of the justices under the provision justices not

conclusive as hereinbefore contained shall not be held conclusive as to the to the right of right of entry on any such lands by the promoters of the the promoters. undertaking.

lands.

XCI. If in any case in which, according to the provisions Proceedings in of this or the special act, or any act incorporated therewith, case of refusal the promoters of the undertaking are authorized to enter session of upon and take possession of any lands required for the purposes of the undertaking, the owner or occupier of any such lands or any other person refuse to give up the possession thereof, or hinder the promoters of the undertaking from entering upon or taking possession of the same, it shall be lawful for the promoters of the undertaking to issue their warrant to the sheriff to deliver possession of the same to the person appointed in such warrant to receive the same, and upon the receipt of such warrant the sheriff shall deliver possession of any such lands accordingly, and the costs accruing by reason of the issuing and execution of such warrant, to be settled by the sheriff, shall be paid by the person refusing to give possession, and the amount of such costs shall be deducted and retained by the promoters of the undertaking from the compensation, if any, then payable by them to such party, or if no such compensation be payable to such party, or if the same be less than the amount of such costs, then such costs, or the excess thereof beyond such compensa

W.

UU

Parties not to

sell part of a house.

tion, if not paid on demand, shall be levied by distress, and upon application to any justice for that purpose he shall issue his warrant accordingly.

XCII. And be it enacted, that no party shall at any time be required to be required to sell or convey to the promoters of the undertaking a part only of any house or other building or manufactory, if such party be willing and able to sell and convey the whole thereof.

The word "house" must be read in the general, if not universal, sense in which the law understands it. Grosvenor v. Hampstead Junction Railway Co., 26 L. J., Ch. 731; 1 De G. & J. 446. It comprises all that would pass by the grant of a messuage, which includes not only the curtilage but also the garden and all that is necessary to the enjoyment of the house, if within one ambit, whether attached to the main building or not, and though purchased subsequently to the erection of the main building. The Governors of St. Thomas's Hospital v. Charing Cross Railway Co., 30 L. J., Ch. 395; 1 J. & H. 400. See further on this subject, King v. Wycombe Railway Co., 28 Beav. 104; 29 L. J., Ch. 462; Cole v. West of London and Crystal Palace Railway Co., 27 Beav. 242; Alexander v. The West of London and Crystal Palace Railway Co., 30 Beav. 556; Hewson v. London and South Western Railway Co., 8 W. R. 467: Marson v. London, Chatham and Dover Railway Co., L. R., 6 Eq. 101, and 7 Eq. 547; 38 L. J., Ch. 371; 20 L. T., N. S. 773; Falkner v. Somerset and Dorset Railway Co., L. R., 16 Eq. 458; 42 L. J., Ch. 851; all of which refer to the taking of some garden, orchard, or curtilage, attached to a house; see also as to a meadow, Chambers v. London, Chatham and Dover Railway Co., 8 L. T., N. S. 235.

As to manufactories, see Sparrow v. Oxford, Worcester, &c. Railway Co., 9 Hare, 436; 2 De G., M. & G. 94; 7 Rail. Cas. 92; Barker v. North Staffordshire Railway Co., 2 De G. & S. 55; 5 Rail. Cas. 401; 12 Jur. 575; Reddin v. Metropolitan Board of Works, 10 W. R. 726; Furniss v. Midland Railway Co., L. R., 6 Eq. 473, and Spackman v. Great Western Railway Co., infra. The company are bound to take the trade fixtures in a manufactory as well as the building itself. Gibson v. Hammersmith Railway Co., 32 L. J., Ch. 337; 9 Jur., N. S. 221; 11 W. R. 299.

As to where a public road separates a garden or field from the house, see Fergusson v. London, Brighton and South Coast Railway Co., 33 Beav. 105; 33 L. J., Ch. 29; 9 L. T., N. S. 134; Steele v. Midland Railway Co., L. R., 1 Ch. App. 275; 13 L. T., N. S. 794; 12 Jur., N. S. 218; Salter v. Metropolitan District Railway Co., L. R., 9 Eq. 432; 39 L. J., Ch. 567; and Falkner v. Somerset and Dorset Railway Co., L. R., 16 Eq. 458; 42 L. J., Ch. 851. See also Spackman v. Great Western Railway Co., 1 Jur., N. S. 790; 26 L. T. 22, where a road separated certain cottages used as warehouses from a manufactory, and where the company were not allowed to take the cottages without taking the whole manufactory. Where a field separated from the garden of a house by a ha-ha traversed by a gravel walk leading to a coachman's house at the further end, and used occasionally for purposes of pleasure (as archery and dancing), though chiefly as pasture for cows, was held not to be part of the house within sect. 92; Pulling v. London, Chatham and Dover Railway Co., 33 L. J., Ch. 505; 33 Beav. 644; 10 L. T., N. S. 741. Two semi-detached villas, though with one continuous roof, are not one building, and a company giving notice to treat for one cannot be compelled to take both under this section. Harvie v. South Devon Railway Co., 32 L. T., N. S. 1; 23 W. R. 202; reversing the decision of Malins, V.-C.

A landowner having received notice to treat for the sale of a part of his

premises does not, by offering to sell that part at a price named by him, preclude himself, if the company decline the offer, from requiring them to take the whole under the 92nd section. The proper construction of that section is, that a landowner shall not be compelled to sell a part of his house, &c., if before the company have begun to put their compulsory powers in motion he gives them notice to take the whole. Gardner

v. Charing Cross Railway Co., 31 L. J., Ch. 181; 2 J. & H. 248; 5 L. T., N. S. 418; 8 Jur., N. S. 151.

But although the landowner cannot be compelled to sell part only of a house, &c., the company cannot be compelled to take the whole. R. v. London and South Western Railway Co., 5 Rail. Cas. 669; 12 Q. B. 775; 17 L. J., Q. B. 326; Grierson v. Cheshire Lines Committee, L. R., 19 Eq. 83; 44 L. J., Ch. 35; 31 L. T., N. S. 409.

As to easements, see Pinchin v. London and Blackwall Railway Co., 24 L. J., Ch. 417; 5 De G., M. & G. 851; 24 L. T. 125; 18 Jur. 39; and Sparrow v. Oxford, Worcester, &e. Railway Co., 2 De G., M. & G. 94; 9 Hare, 436; 21 L. J., Ch. 731; and cases cited ante, p. 637.

And with respect to small portions of intersected land, be it enacted as follows:

intersected

XCIII. If any lands not being situate in a town or built Owners of upon shall be so cut through and divided by the works as lands may to leave, either on both sides or on one side thereof, a less insist on sale. quantity of land than half a statute acre, and if the owner of such small parcel of land require the promoters of the undertaking to purchase 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 adjoining land, by removing the fences and levelling the sites thereof, and by soiling the same in a sufficient and workmanlike manner.

As to the construction of the word "town," see Carrington (Lord) v. Wycombe Railway Co., L. R., Eq. 825; 37 L. J., Ch. 213; L. R., 3 Ch. App. 377; and see also Elliot v. South Devon Railway Co., 5 Rail. Cas. 500; 2 Exch. 725; 17 L. J., Ex. 262; Falkner v. Somerset and Dorset Railway Co., L. R., 16 Eq. 458; 42 L. J., Ch. 851. See also as to this section, Salisbury (Marquis) v. Metropolitan Board of Works, 21 W. R.

259.

XCIV. 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 promoters

UU 2

Promoters of

the undertaking may insist on pur

chase where

expense of exceeds the bridges, &c.

value.

Conveyance of copyhold lands to be enrolled.

Copyhold lands to be enfranchised.

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 communication, 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 compensation; and on the occasion of ascertaining the value of the land required to be taken for the purposes of the works, the jury or the arbitrators, as the case may be, 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 be the expense of making such communication.

See Cobb v. Mid-Wales Railway Co., cited in notes to sect. 51 ante, p. 630; and see Reg. v. Brown, L. R., 2 Q. B. 630.

And with respect to copyhold lands, be it enacted as follows: XCV. Every conveyance to the promoters of the undertaking, of any lands which shall be of copyhold or customary tenure, or of the nature thereof, shall be 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 lands to the use of a purchaser thereof he shall 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 freehold tenure; nevertheless, until such lands shall have been enfranchised by virtue of the powers hereinafter contained, they shall continue subject to the same fines, rents, heriots, and services as were theretofore payable and of right accustomed.

XCVI. Within three months after the enrolment of the conveyance of any such copyhold or customary lands, or within one month after the promoters of the undertaking 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 holden of the same manor shall have been taken by them, then within one month after the last of