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neither Cross nor any person on his behalf, appeared on 1851. the inquiry before the jury: whereupon the amount of

IN RE THE the purchase-money was determined, by a surveyor ap- EAST pointed by two justices of the peace to be 7401.: and,


RAILWAY in April 1849, the Company paid that sum into Court,

Аст. to the credit of Ex parte the East Lincolnshire Railway Company, the account of T. L. Cross of Louth in the county of Lincoln, miller. *

Cross continued in a state of mental imbecility until his death. He died in January 1850, but without having been the subject of a commission of lunacy. The petition was presented in April 1850, at which time all the Petitioners were married, but only one of them had issue. It stated that the Petitioners or their husbands had not settled or agreed to settle their shares of the 7401. ; and prayed that one-third part of that sum, might be paid to each of their husbands ; or, if the Court should be of opinion that the 7401. was to be considered, in equity, as part of Cross's residuary real estate, then that it might be invested in Consols, in the name of the AccountantGeneral, to the credit of Ex parte the East Lincolnshire Railway Company, the account of the devisees of T. L. Cross, late of Louth in the county of Lincoln, miller; and that one-third of the dividends might be paid, to each of the Petitioners, on her separate receipt, till further order.

Mr. Bethell, and Mr. Shapter, in support of the petition, referred to the 7th, 76th, 77th and 78th sections of the Lands Clauses Act, and said that, if the owner

* See Lands Clauses Act, sects. 47, 58, and 76. + See sects. 69 and 70.

1851. of land taken by a company for the purposes of their IN RE THE

undertaking, failed to appear on the inquiry before a East jury, the purchase-money, whatever might be the cause LINCOLNSHIRE of the owner's default, was to be paid into Court under RAILWAY Аст.

the 76th scction; and that the 78th section directed the Court to distribute it, as personalty, amongst the parties entitled to it.

Mr. Lloyd for the trustees of Cross's will and the infant children of one of the petitioners, said that Cross was in a state of mental incapacity at the time when the Company took his land, and continued in that state until his death; and that, though no committee of his estate was ever appointed, yet the enactments of the Lands Clauses Act with regard to persons in his unfortunate condition, applied; and, therefore, the 7401. ought to be reinvested in land under the 69th section, and the land be conveyed to the trustees upon the trusts of his will. Mr. Lloyd cited The Midland Counties Railway Company v. Oswin (a); and said that the 44th and 47th sections *

(a) i Coll. 74, see 80. The 44th sect. is stated, shortly, in Mr. Collyer's Report of the case cited, and, fully, in the judgment in this case. The 47th section is as follows:-And be it further enacted

nat, in case any party to whom any money shall be agreed or awarded to be paid for the purchase of any lands to be taken or used under or by virtue of the powers of this Act, or for any interest or for compensation as aforesaid, shall refuse or neglect to accept the same, or cannot be conveniently found, or shall be absent from the United Kingdom of Great Britain and Ireland, or shall refuse, neglect, or be unable to make a title to such lands, or to such interest in the premises, to the satisfaction of the said company, for the purposes of this Act, or if the party entitled unto, or required, by the said company, to convey or join in conveying such lands, or such interest


of the Act on which the question in that case arose, were substantially the same as the 76th and 78th sections of

IN RE THE the Lands Clauses Act.


RAILWAY Mr. Bethell, in reply, said that the Lands Clauses Аст. . Act contained no direction that the purchase-money for land taken from a person in a state of mental incapacity, should be dealt with otherwise than under the 78th section, unless he had been found to be either a lunatic or an idiot, and the land had been sold by the committee of his estate ; in which case the money was to be re

therein, shall not be known, or be not shown, to the satisfaction of the said company, to be such party, or shall refuse to convey or to join in conveying the same, then and in every such case, where not otherwise provided by this Act, it shall be lawful for the said company to order the money so agreed, offered, intended to be offered, or awarded as aforesaid, to be paid into the Bank of England in the name and with the privity of the Accountant-General of the Court of Exchequer, to be placed to his account to the credit of the parties interested in the said lands (describing them, so far as the said company can so do), subject to the control and disposition of the said Court; which said Court, on the application of any party making claim to such money or to any part thereof, by petition, is hereby empowered, in a summary way of proceeding or otherwise, to order the same to be laid out and invested in the public funds, and to order distribution thereof, or payment of the dividends thereof, according to the estate, title, or interest of the party making claim thereunto, and to make such other order in the premises as to the said Court shall seem proper; and the cashier of the Bank of England who shall receive such money, is hereby required to give, to the said Company, or to any party paying any money into the Bank of England under or pursuant to this Act, a receipt for such money, mentioning and specifying therein for what and for whose use (described as aforesaid) the same is received.

1851. invested in land : that, by the Midland Counties RailIN RE THE

way Act, failure to appear on an inquiry before a jury EAST and mental incapacity, were put on the same footing; LINCOLNSHIRE but that was not the case in the Lands Clauses Act : RAILWAY Аст. and he cited Ex parte Hawkins (b), and also Oxenden v.

Lord Compton (c), and Ex parte Clayton (d), in order to show that there was no equity between real and personal representatives.

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The petition in this case was presented by the executrixes of a deceased gentleman of the name of Cross, praying that the sum of 7401., which had been paid, into Court, by the East Lincolnshire Railway Company, for lands of which the deceased had been seised in fee and which the Company had taken for the purposes of their undertaking, might be paid out, to the Petitioners, in certain shares. I should have ordered the money to be paid to them, as a matter of course, if an affidavit had not been filed stating that Cross, at the time when the Company gave him notice of their intention to take his land and until his death, was in a state of mental imbecility: and I shall decide who are the parties entitled to the fund in Court, on the assumption that that was the case.

The question depends upon the construction of the Lands Clauses Consolidation Act, 7 & 8 Vict. c. 18. The 7th section of that Act says that it shall be lawful for all parties being seised of any lands which the promoters of the undertaking may require for the purposes of their undertaking, to sell and convey the same to the (6) 13 Sim. 569.

(c) 2 Ves. Jun. 69. (d) i Russ. & Myl. 369.

promoters, and to enter into all necessary agreements 1851. for that purpose, and, particularly, that it shall be lawful

IN RE THE for corporations, tenants for life, &c., so to do. So that EAST

LINCOLNSHIRE all persons are enabled to sell and convey: and it was

RAILWAY contended that, as Cross was seised in fee, he would not Аст. . have wanted any authority to sell and convey, unless he had been in a state of mental imbecility; and that the words, “it shall be lawful for all persons,” &c., gave him that authority. But I do not think it will be necessary to decide whether authority was given to him, by those words, or not. For it is certain that the Company did not, in this case, get the lands by agreement. What then is the way of getting possession of lands otherwise than by agreement? Sect. 18 says that, when the promoters of the undertaking shall require to purchase or take any of the lands which they are authorized to purchase or take, they shall give notice thereof to the parties interested in such lands, or to the parties enabled, by the Act, to sell and convey the same, 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. Now that notice was given to Cross. Then section 21 enacts that if the party to whom such notice has been given, shall fail, for twenty-one days after the service of it, to state the particulars of his claim in respect of such land, or to treat or agree, with the promoters, in respect thereof, the amount of the compensation to be paid to him, shall be settled in the manner thereinafter provided for settling cases of disputed compensation. Then the Act provides two modes of settling disputed claims to com

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