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Railway Company.

during parliamentary enquiry and the Company's treaty with the mortgagor and the laying down of the railway on the lands, the mortgagee kept his mortgage unknown, the Company ought to have time to inquire after notice of the claim; that is, after production of the abstract of title. The claim may be unfounded or fraudulent, or it may involve claims of other parties. The necessity for time and caution is shewn by Doe d. Hyde v. The Mayor of Manchester (a), for there the Company had paid for the land in question to one proprietor, and had to pay for it again to Mr. Hyde, with all mesne profits and costs, as between attorney and client, because the arbitrator had made a mistake in the boundary between two properties. Here the questions of the validity of the deed, of its operation on five sixths of the land, of deducting what is due to the mortgagee from the compensation to be paid to the mortgagor, and of deducting for the right of the lessee if any should exist, must be considered before the compensation can be settled. If the possession of the Company is lawful for six months after the title is produced, or the dispute determined, all rights and liabilities would be secured in good order, and this defence would prevail. On the other hand, if ejectment lies for every claimant of an unknown interest before he shews the ground of his claim and allows time for considering it, confusion and disorder will be introduced: for the Company will have to decide whether they will suffer judgment by default and hazard the stay of execution upon a conflict of affidavits, or defend the cause with all the risks and imputations brought upon the present defendants for so doing; and also if within six months compensation is made, any judgment that should have been obtained (a) 5 De G. & Sm. 249.




would thereby become futile; and then no provision is made in respect of costs either to the claimant as between party and party or as between attorney and client, or to WIMBLEDON the Company, in respect of useless litigation which the claimant chose to force them to; and all this for no other purpose than securing some promptness in making compensation-about which litigation has probably increased if not created the delay.

In the case of The Marquis of Salisbury v. The Great Northern Railway Company (a), the title was shewn and disputed, and ejectment was brought to try the title, and it was doubted whether ejectment would lie for lands of which the possession was to be undisturbed; but it was held to be by implication given in the case where the title should be disputed, solely for the purpose of trying the title, execution being stayed as soon as that purpose should be effected. If the title is disputed, the section may be held to give by implication a right to resort to law, and by limiting the right to the case of disputed title all would be in order; but if it is given where there is no dispute of title the confusion above described would follow.

This judgment does not conflict with any opinion of the Court below, who considered that the point here was within Lord Salisbury's Case; but, as above mentioned, that case appears to us to have no application to the present, because the title there was disputed,-here it is not.

For these reasons we think the defendants are entitled to succeed and that the judgment of the Court below should be reversed.

and DORKING Railway Company.

Judgment reversed.

(a) 5 C. B. N. S. 174.



On the last day of Michaelmas Term, Mr. Justice Hill resigned his office as Judge of this Court, in consequence of ill health.

In the Vacation, John Mellor, Esq., one of her Majesty's Counsel, was appointed a Judge of this Court; having been previously advanced to the degree of the coif, when he gave rings, with the motto "Lex ratione probata."


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The applicant had been articled as clerk to his father and served the five years required by law without the applicant's knowledge, as he alleged, that the articles were not stamped. The affidavit of the father stated that, having before the articles been subject to much pecuniary loss and pressing expenses, and a diminution of professional income on account of the changes in the law and personal and family affliction, he was at the time of the articles without the means to pay the stamp duty thereon; and that he had not articled the applicant speculatively, but with the intention of ultimately stamping and enrolling the articles. The Lords of the Treasury having, under stat. 19 & 20 Vict. c. 81. s. 3., directed the Commissioners of Inland Revenue to stamp the articles upon payment of the duty and penalty, and the articles having been stamped accordingly: Held, by Cockburn C. J., Wightman and Mellor JJ., Crompton J. dissentiente, that they might be enrolled, and the service under them be computed from the date of their execution.


HIS was a motion that the applicant might have leave to enrol his articles of clerkship, and that the B. & S.


3 I

Monday, January 13th.


Articles of clerkship. Omission to stamp.

19 & 20 Vict.

c. 81.


Ex parte HERBERT.

service thereunder should count from the 16th August, 1856, being the day of their execution. The affidavit of the applicant stated that, at the age of eighteen years, he was, by articles of clerkship, dated the 16th August, 1856, articled to his father, an attorney at law, for five years, which expired on the 16th August, 1861; that he had served his father as his articled clerk during the said term; that at the time of entering into the articles he did not know that it was necessary that they should be stamped before execution, or that it was necessary that they should be enrolled; that when the articles were executed they were kept by his father in his own possession, and he never afterwards saw them until last October, when his father gave them to him, and he found that they had not been stamped, nor enrolled; that he presented a memorial to the Lords Commissioners of Her Majesty's Treasury praying that the Commissioners of Inland Revenue might be permitted to stamp the articles; and that their lordships had been pleased to authorize the Commissioners to affix the necessary stamp on payment of a penalty of 50l., in addition to the duty of 801. The affidavit of the father of the applicant stated in substance that, having before the applicant was articled to him been subject to much pecuniary loss and various pressing expences, and a diminution of professional income on account of the changes in the law and personal and family affliction, he was at the time of the articles wholly without the means to pay the stamp duty thereon; that the articles were not duly stamped before their execution, nor enrolled within six months from their date and execution for these reasons, and because he thought that, under stat. 19 & 20 Vict. c. 81., they could be afterwards stamped on payment of the penalty mentioned in that

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