V.—Of moving for a New Trial, Certiorari to remove and quash Inquisition, &c.

284. Where the sheriff or other presiding officer by mistake directs the jury that the claimant's case is not within the act, and they so find accordingly, and are discharged, a mandamus lies to the sheriff, &c. to execute the precept; but the party moving for the rule cannot in such case have his costs, the necessity for the rule arising from the mistake of the judge. (k)

285. Where the act directs that the verdict of the jury and the judgment thereon shall be final and conclusive, the other party cannot move for a new trial, even though the undersheriff have excluded from the consideration of the jury one ground of damage, and the jury have found a verdict against the evidence. As this cannot be done directly, so neither can it indirectly. The court accordingly has, under such circumstances, refused to grant a mandamus to the company to issue a fresh precept. (1)

286. Where the inquisition is defective, it may be removed by writ of certiorari into the Court of Queen's Bench, and there quashed. This supposes that the writ is not taken away by statute. (m)

VI. Of the Title.

287. Upon the amount of the compensation money being fixed, either by the agreement of the parties

(k) Reg. v. Sheriff of Middlesex, 22 Law Journ. Q. B. 14 ; S. C. 3 Railw. Cas. 396.

(1) Reg. v. Eastern Counties Railway Company, 21 Law Journ. Q. B. 271; S. C. 3 Railw. Cas. 468.

(m) As to the writ of certiorari, see Cap. 7, post.

or by the verdict of the jury, it is then for the landowner to make out his title to the satisfaction of the company. If he fails to do so, (n) the company, under the usual provisions of a railway act, become entitled to pay the money into the Bank of England. The property upon this is made to vest in the company without any conveyance from the owner, the facts amounting to a statutory conveyance. (0)

288. Where the company are compellable under their act to purchase certain property, which is therein described as "the property of A. B.," this cannot, it should seem, be construed to amount to a parliamentary confirmation of the party's title, so as to preclude the company from disputing the same, and to oblige them absolutely to pay him the purchase money whether he be really entitled to it or not. (p)

VII. Of the Conveyance.

289. A good title to the land, &c. in question being made out to the satisfaction of the company, there comes next to be considered the conveyance. The form of this is usually prescribed by the statute. (q) Where a party is unwilling, &c. to con

(") Under Lands Clauses Consolidation Act (8 Vict. c. 18), promoters in such case empowered to execute deed poll, whereupon property made to vest in them. See act, s. 75 and s. 77, post, App.

(0) See Bruce v. Willis, 11 A. & E. 463; S. C. 3 P. & D. 220.

(p) Penney v. Great Western Railway Company, 1 Horn & H. 247.

(9) As to provisions of Lands Clauses Consolidation Act (8 Vict. c. 18) on this point, see act, s. 81, post, App.

vey, (r) the statute usually empowers the company to pay the compensation money into the Bank of England. The effect (r) of this, under the usual provisions of a railway act, is to vest the property. in the company as absolutely as if it had been conveyed by the owner, and so to dispense with the necessity of any conveyance by the latter. (s)

290. If the owner dies before making any conveyance, or before the payment of the money into the bank, his heir or devisee may nevertheless be compelled to convey the land, inasmuch as it is bound by the prior contract or assessment, as the case may be.

291. Where in such a case the land is left to descend to infants, or is devised in strict settlement, &c., so that under the limitations contained in the will there is no one capable of making a conveyance to the company, the company must institute a suit in chancery in order to obtain a conveyance. (t) And it makes no difference whether there has been an

(r) See Lands Clauses Consolidation Act, (8 Vict. c. 18,) ss. 73, 76, post, App., as to this point; promoters of railway in such case empowered to execute deed poll, whereupon property made to vest in them; see ib. s. 75 and s. 77. As to effect of conveyance by parties under such act, see ib. s. 81; and of deed poll by promoters, ib. s. 75 and 77. Promoters empowered to purchase interests in land, purchase whereof omitted by mistake. ib. s. 124 et seq.

(s) See Bruce v. Willis, 11 A. & E. 463; S. C. 3 P. & D.

220.

(t) Midland Counties Railway Company v. Oswin, 22 Law Jour. Ch. 209; S. C. 1 Coll. 74; Midland Counties Railway Company v. Wescomb, 2 Railway Cas. 211; S. C. 11 Sim. 57; Eastern Counties Railway Company v. Tufnell, 3 Railway Cas.

agreement for the purchase between the company and the deceased owner, or the value has been assessed by a jury under the compulsory process given by the act; in either case the deceased owner is a vendor, and the infant heir, &c. a trustee within the meaning of the statute 1 Will. 4, c. 60. (u)

VIII. Of the Payment of the Purchase Money, and the entry upon Lands, &c.

292. In treating of this subject it is proposed to consider, first, the time; secondly, the mode; thirdly, the effect of payment; fourthly, the remedies for enforcing such payment; and, lastly, the ulterior disposition of the money where it is paid into the bank.

293. First, then, of the time of payment. The payment or tender of the sum agreed on or assessed (x) by the jury, is in general made a condition precedent to the vesting of the property in the company, or to their being entitled to enter thereupon. Accordingly, if they take possession of the property while this remains undone without consent of the owner, it is illegal, and entitles the proprietor to apply to a court of equity for relief. (y) In case, however, of a prior existing agreement between the parties for the purchase of the property in question, the owner can not in general require to have (u) See note (t), p. 213.

(x) As to provisions of Lands Clauses Consolidation Act (8 Vict. c. 18) on this point, see act, s. 84, et seq. post, App. Promoters liable to penalty for wilfully entering on lands, &c. without consent of owner before payment, &c. of purchase money, &c., see ib. s. 89.

(y) Robertson v. The Great Western Railway Company, 1 Railw. Cas. 459; Jones v. The Great Western Railway Company, 1 Railw. Cas. 684.

the purchase money paid to himself, but only into the court to which the application is made, it being a case of specific performance, and not a case within the act.(z)

294. Secondly. Of the mode of payment. The proper mode of payment in general is to hand over the money to the party interested in the premises. It may, however, happen that this party is out of the way, or labours under some incapacity, or neglects or refuses to convey or to make out a good title, or is unable so to do, (a) &c. To provide against such contingencies, which otherwise might present an insuperable obstacle to the execution of the undertaking, a power is usually given to the company in any such case to pay the money into the Bank of England, and thereupon the property is made to vest in them just the same as in case of an immediate payment to the owner. In order to entitle themselves to exercise this power, they must follow the provisions of the act strictly. (b) But

(=) Hyde v. The Great Western Railway Company, 1 Railw. Cas. 277.

(a) As to provisions of Lands Clauses Consolidation Act (8 Vict. c. 18) on this head, see act, s. 69–79, post, App.

(b) An act of parliament establishing a railway company provided that, if the owner of any land required by the company should refuse to accept the purchase money or compensation awarded, or should fail to make out a title to such land, to the satisfaction of the company, or if such owner should be out of the kingdom or not be to be found or be unknown, or should refuse to convey such land, &c., the company might pay the purchase or compensation money into the Bank of England in the name of the accountant-general of the Court of Chancery, whereupon all the interest of the owner in those lands should vest in the company. By subsequent sections the company were to give notice to the parties interested of their intention to treat for lands; and,