Unpaid Vendor-Enforcement of Lien. 257 suit of this nature, there is a clear right on petition to have the lien 8 & 9 VICT. c. 18. enforced, and the Court will order an account of what is due, fix a day for payment, and, in default of payment, for sale of the property: (Williams v. Great Eastern Railway Co., 3 W. N. 148; 18 L. strain uses of sale. T. N. S. 458; 16 W. R. 821 ;) or for an injunction to restrain the com- Injunction to repany from using the land until payment: (Earl Nelson v. Salisbury land. and Dorset Railway Co., 3 W. N. 180;) but, it seems, that where the Where line not line has not been opened for traffic, an order, on motion, for imme- opened for trafdiate sale would be made in order to enforce the lien previously fic: immediate declared: (Wing v. Tottenham and Hampstead Junction Railway Co., 3 W. N. 190; affirmed on appeal, 3 W. N. 239; 16 W. R. 1098.) Where a company had obtained an act protecting them for a fixed Enforcement of period against all actions, suits, executions, attachments, or other lien notwithproceedings," (30 & 31 Vict. c. 209, s. 4,) the enforcement of the ing act; lien previously declared was held by the Master of the Rolls as not coming within the clause, but his Lordship intimated some doubt on the subject: (Wootton v. London, Chatham, and Dover Railway Co., 3 W. N. 203.) standing protect has been appointed. Where a receiver had been appointed, and was made a party to a Where receiver suit by unpaid vendors for specific performance, the usual decree as above referred to was made, with liberty to apply in the mortgagees' suit for payment of the amount by the receiver in that suit, and liberty to apply generally to enforce the lien: (Longcroft v. Carmarthen and Cardigan Railway Co., 3 W. N. 234.) sistent with entry The fact of the company having entered under s. 85, does not pre- Proceedings vent the landowner from proceeding to have the compensation as- under s. 68 consessed under s. 68, ante, and he may accordingly give notice to the com- under s. 85. pany, requiring them to summon a jury to assess the compensation, as if the company had not in fact entered: (Adams v. London and Blackwall Railway Co., 2 MN. & G. 118; 6 R. C. 271; 2 H. & T. 285; 19 L. J. (Ch.) 557.) indemnities to being paid off (e) The company must, if they treat with a mortgagor, and if they Deposit to cover are cognisant of the existence of a charge upon the property, pay in all rights and a sum which will not only secure to the mortgagees their whole in- which mortgagee terest up to the time stipulated for paying off the mortgage, but is entitled by also the amount of their loss in consequence of being paid off before before the proper that time, and of any difference in the present and the future rate time. of interest, and must include their costs incurred in consequence of the land having been taken: (Ranken v. East and West India Docks Co., 12 Bea. 298.) See s. 114, post. off mortgagees. However, in a case where the company, knowing of the exist- Where sum ence of an equitable mortgage, entered under s. 85, and gave awarded not bonds to the landowners and their mortgagees, the sum awarded sufficient to pay for compensation being less than the fund paid into Court, and not large enough to satisfy the mortgage, Sir J. Stuart, V.-C., held that the mortgagees not being parties to the inquiry as to value, were not bound by the proceedings, and his Honour declined to direct a fresh valuation, but ordered the fund in Court to be applied in satisfaction of the mortgage. The Lord Chancellor, however, reversed this decree, and declared that the mortgagees had no lien on the fund, that they were not bound by the inquiry, and were entitled, in default of payment by the company, to an assignment by the landowner and the company of the land com R 8 & 9 VICT. c. 18. prised in their security. His Lordship also held that the interest of Where sum deposited less than value awarded. Rights under by treating as to part. the mortgagees could not be treated as "omitted to be purchased,” under s. 124 of the Lands Clauses Act: (Martin v. London, Chatham, and Dover Railway Co., L. R. 1 Eq. 125; 14 W. R. 24; 13 L. T. N. S. 355; L. R. 1 Ch. App. 501; 14 W. R. 880; 14 L. T. N. S. 814.) The Court, it seems, will on petition, where a sum less than that ultimately determined as the value of the property has been paid in, order the balance to be deposited: (Ex parte London, Tilbury, and Southend Railway Co., 1 W. R. 533 ;) or on motion: (Ashford v. London, Chatham, and Dover Railway Co., 1 W. N. 288; 14L. T. N. S. 787.) (f) Not only does a landowner not waive his right under s. 92, to s. 92 not affected oblige the company to take the whole of his property instead of part, by offering to sell part at a certain price, (Gardner v. Charing Cross Railway Co., 2 J. & H. 248; 31 L. J. (Ch.) 181,) but if he require them to take the whole, they cannot pay a deposit or give a bond for part only: (Giles v. London, Chatham, and Dover Railway Co., 1 Dr. & Sm. 406; 30 L. J. (Ch.) 603; Underwood v. Bedford and Cambridge Railway Co.; Dadson v. East Kent Railway Co., 7 Jur. N. S. 941.) In Gibson v. Hammersmith Railway Co. (32 L. J. (Ch.) 337, 344; 9 Jur. N. S. 221; 12 W. R. 1021,) Sir R. T. Kindersley, V. C., said: "I am quite satisfied that, whatever the company are bound to take upon the requisition of the owner or tenant, acting under the rights and privileges of the 92d section, that must be taken into account as valued, if the company exercise their powers under s. 85." take the whole, must deposit the the company value of the whole. All lands in be valued. The bond must include, and the company are bound to proceed to notice to treat to the valuation of, all the land comprised in the notice to treat: (Barker v. North Staffordshire Railway Co., 2 De G. & Sm. 55; 5 R. C. 401.) The bond sufficiently identifies the property taken, by referring to and describing a piece or parcel of land, being part of a larger piece, numbered in the deposited plans: (Willey v. South-Eastern Railway Co., 1 M'N. & G. 58; 6 R. C. 100; 1 H. & T. 56.) Identification of the property. Railway Companies Act, 1867, 30 & 31 Vict. c. 127, s. 36: Appointment of surveyor by Board of Trade. By s. 36 of the Railway Companies Act, 1867, (30 & 31 Vict. c. 127,) this section has been amended in the following particulars :— (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. Upon this section it has been decided that in every case where a railway company intends to enter under the 85th section of the Lands Clauses Act, after the 20th of August 1867, the surveyor Appointment of Surveyors-Form of Bond. 259 must be appointed under this section of the Act of 1867, even though 8 & 9 VICT. c. 18. a valuation under s. 85 have, previously to such date, been made: (Field v. Carnarvon and Llanberis Railway Co., L. R. 5 Eq. 190; 37 L. J. (Ch.) 176; 17 L. T. N. S. 534.) (g) There is nothing in the act which requires that the appointment Nothing in the of the surveyor should specify the lands to be valued: (Poynder V. ment of surveyor act that appointGreat Northern Railway Co., 16 Sim. 3; 2 Ph. 330; 5 R. C. 196, 200.) is to state lands Where a surveyor merely inspected the exterior of a house, and to be valued. did not enter it, the Court did not consider the valuation regularly vey. made: (Cotter v. Metropolitan Railway Co., 10 Jur. N. S. 1014; 12 W. R. 1021.) Insufficient sur made. Where, upon production of the document containing the valua- Money paid in tion, it appeared by the date of the bond that the money was paid before valuation in two days before the valuation was made, this was not held to invalidate the bond: (Stamps v. Birmingham, Wolverhampton, and Stour Valley Railway Co., 7 Ha. 251.) 85 unnecessary. (A) Where no agreement has been come to, and the company enter Notice to landunder s. 85, they need not give notice of the consequent proceed- owners of proings, which may be taken ex parte. It was observed by Lord Cot-ceedings under s. tenham, C., that s. 59 of the Lands Clauses Act (ante) is referred to in this section, and that s. 59 is a provision in reference to which notice cannot be required; that where notice is required, the act so expresses it; and that there being a reference to a proceeding where no notice is required, it is evident that no notice could be required in a case coming under s. 85: (Bridges v. Wilts, Somerset, and Weymouth Railway Co., 4 R. C. 622; 11 Jur. 315; 16 L. J. (Ch.) 335; Poynder v. Great Northern Railway Co., 16 Sim. 3; 2 Ph. 330; 5 R. C. 196; Langham v. Great Northern Railway Co., 1 De G. & Sm. 486; 5 R. C. 263; 16 L. J. (Ch.) 437.) (The words of the Act of Parliament should be followed as Form of bond. closely as possible in framing the bond under this section. (See post, App.) A bond conditioned to pay "on demand" to the plaintiff, his "On demand." heirs, executors, administrators, or assigns, or to deposit the purchase-money, was not considered to be in conformity with the provisions of the act; and an injunction was granted to restrain the defendants from proceeding under their compulsory powers until they executed a bond in the proper form: (Poynder v. Great Northern Railway Co., 16 Sim. 3; 2 Ph. 330; 5 R. C. 196; Langham v. Great Northern Railway Co., 5 R. C. 263; 1 De G. & Sm. 486; 16 L. J. (Ch.) 437.) 1 or their benefit." But it seems that if land be taken under a bond not framed in "To A. B., his accordance with the provisions of the act-as, where it was con- heirs, &c., for his ditioned for payment to A. B., "his executors, administrators, or assigns, or to pay into the bank for his or their benefit" the purchase-money-the Court would hold that the landowner has the benefit of the security intended by the act, and that the company cannot be considered as being in possession contrary to its provisions: (Willey v. South-Eastern Railway Co., 1 M'N. & G. 58; 6 R. C. 100; 1 H. & T. 56.) It was observed, in this case, that if the money be paid in to the Payment to account of a person with whom the company think proper to deal ostensible owner. as the owner of the land, that is quite regular, because they thus 8 & 9 Vict. c. 18. recognise his title to the land, and the money may remain in the bank until he does the duty he is bound to do-i. e., to provide for other interests in the property. parties. Bond to pay to Where the condition of the bond was that the company should A., her heirs, &c., pay to the party, her "heirs, executors, administrators, or assigns, or or otherwise, for the benefit of the deposit in the Bank of England, or otherwise, for the benefit of the parties interested," &c., it was held that the bond was not in compliance with the statute: (Hosking v. Phillips, 3 Exch. 168; 18 L. J. Ex 1.) "I conceive," said Parke, B., "that a great difficulty might be imposed on a petitioner in the event of his being obliged to sue on a bond conditioned for payment in any other way than that provided by the Act of Parliament. The 85th clause requires only two modes either payment to the party himself, or deposit in the Bank of England:" (3 Exch. 181.) "At any time hereafter." Payment to a The Court has held that the insertion of the words, "at any time hereafter," in reference to the time of payment, is fatal to the validity of the bond: (Cotter v. Metropolitan Railway Co., 10 Jur. N. S. 1014; 12 W. R. 1021.) It may be doubted whether a condition to pay the compensation lessee, his heirs, for a leasehold to the lessee, his heirs, executors, administrators, or assigns, would be valid: (Dakin v. London and North-Western Railway Co., 3 De G. & Sm. 414.) &c. Tenants in com mon. Notice of appointment of sureties. Sureties to be appointed in all cases. Upon deposit being made cashier to give receipt. A bond given to several tenants in common jointly is irregular: (Langham v. Great Northern Railway Co., 1 De G. & Sm. 486; 5 R. C. 263; 16 L. J. (Ch.) 437.) (k) The landowner is not entitled to notice of the appointment or approval of the sureties: (Poynder v. Great Northern Railway Co., 16 Sim. 3; 2 Ph. 330; 5 R. C. 196; Langham v. Great Northern Railway Co., 1 De G. & Sm. 486; 5 R. Č. 263; 16 L. J. (Ch.) 437; Bridges v. Wilts, Somerset, and Weymouth Railway Co., 4 R. C. 622; 16 L. J. (Ch.) 335; 11 Jur. 315.) The bond is not valid if executed by the company alone; there must be "two sufficient sureties," whether the promoters form a corporation, or any two of them are acting under the act in their individual character: (Barker v. North Staffordshire Railway Co., 2 De G. & Sm. 55; 5 R. C. 401.) 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, 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. Performance of Bond-Application of Deposit. 261 main as a se the direction of LXXXVII. The money so deposited as last aforesaid 8 & 9 VICT. c. 18. shall remain in the Bank, by way of security to the parties Deposit to rewhose lands shall so have been entered upon for the per-curity, and to be formance of the condition of the bond to be given by the applied under promoters of the undertaking, as hereinbefore mentioned, the Court. 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 (a) it shall be lawful for the Court of Chancery in England or the Court of Exchequer in Ireland, upon a like application (b), 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. (a) It appears from the cases upon this section, that nothing more Bond to be fully is required to entitle the company to obtain repayment of their de- performed. posit, than that the bond should have been fully performed, after which the vendor will not have any lien for costs upon the deposit : (Ex parte Stevens, 2 Ph. 772; 5 R. C.437 ;) and the Court will not order No order for conpayment of conveyancing costs before the return of the deposit: veyancing costs Ex parte Great Northern Railway Co., 16 Sim. 169; 5 R. C. 269; returned. 12 Jur. 885.) until deposit In a case in which it was agreed that the matter of compensation Where award should be referred to arbitration, but the vendor objected to the disputed and proceedings, and then opposed the payment out of the deposit, under s. 85, no money paid in which had been made in consequence of his refusal to convey, it was obstacle to reheld that he could not repudiate proceedings taken under the act turn of deposit. for his own benefit, and that the payment out would not be refused, because the landowner was dissatisfied with the award, and was taking steps to set it aside: (Re Fooks, 2 M'N. & G. 357.) served or made (b) The Court of Chancery will not order payment out of the Vendor to be deposit, without service upon the vendor, or making him a co-peti- a co-petitioner; tioner: (Ex parte South Wales Railway Co., 6 R. C. 151.) vendor's costs Upon the production, however, of an affidavit, that all costs, ac- Except upon an cording to the act, had been paid to the vendor, service upon him affidavit that all was dispensed with: (Ex parte Eastern Counties Railway Co., 5 R. paid. C. 210.) deposit money LXXXVIII. If at any time the company be unable, by The company reason of the closing of the office of the Accountant-Gen-may pay the eral of the Court of Chancery in England or the Court of into the bank by Exchequer in Ireland, to obtain his authority in respect of during the time way of security |