where the circumstances of a case are such as evince an intention in the owner to set the company at defiance, this is clearly a case within the above provision, and the company are consequently justified in paying the money into court; as, for instance,

if any difference should arise, or no agreement should be come to respecting the lands or compensation money to be given for them, or if such owner should by reason of absence be incapable of treating for them, or should fail to disclose or prove his title to them, or should be incapable of making any agreement or necessary conveyance, the amount of the compensation money should be settled by the jury. The company offered one A., who was possessed of a leasehold interest in lands, a certain sum, and on his refusing to accept it, had the amount of compensation money assessed by a valuation jury. After the verdict had been delivered, A.'s attorney said to the defendants, "you shall never construct your railway until you come to some arrangement satisfactory to A." The company, however, without calling on the plaintiff to make out his title to the lands in question, paid the compensation money into the Bank in the manner prescribed by the statute, and commenced constructing the railway on them, whereupon the plaintiff brought his action of ejectment. On this state of facts, Cresswell, J., at the trial, told the jury that, in order to entitle the company to pay the assessed compensation money into the Bank, and take possession of the plaintiff's land, they should, after that assessment was made, have called on him to make out his title. A verdict was accordingly given for the plaintiff, with leave reserved to the defendants to move the court to enter it for them. Upon the defendants moving in pursuance of that leave, the court upheld the ruling of the learned judge at the trial, being of opinion that the provision empowering the company to pay the compensation into the Bank was prospective, and pointed to a failure to make out a title, &c. subsequently to the compensation being assessed by the jury, and that consequently the company ought to have called on the plaintiff after the assessment by the jury to make out his title to the land; Doe d. Hutchinson v. Manchester, Bury and Rossendale Railway Company, 9 Jurist, 949.

where an act comes into operation reviving an old assessment, and the next day a provisional order of the Court of Exchequer is obtained to pay the money into the bank, and yet the owner, with a knowledge of all this, lies by for ten days after the passing of the act, and suffers the money to be paid in accordingly; this, it seems, is reasonable evidence for the jury to show neglect to make out a title, and that the party means to keep the company at arm's length; it consequently justifies the latter in paying the money into court. (c)

295. So likewise, in case of a disputed title, the company are justified in paying the money into court; as if, after an agreement for the purchase of premises between the company and the supposed owner, a third party steps in and disputes the vendor's title to sell without his concurrence; this would seem to be a case where, under the usual provisions of a railway act, the company are justified in paying the money into court; and where, consequently, they take the whole interest in the premises, notwithstanding the state of the title. (d)

296. In case of the owner refusing or being unable to convey, &c., the act usually empowers the company to order the money to be paid (e) into the Bank of England in the name, &c. of the accountantgeneral of the Court of Chancery, to be placed to

(e) Doe d. Payne v. Bristol and Exeter Railway Company, 2 Railw. Cas. 75; S. C. 6 M. & W. 320.

(d) Er parte Issauchaud, 3 Y. & Coll. 721. See also judgment of Alderson, B. in Cator v. The Croydon Canal Company, 4 Y. & Coll. 405.

(e) See Lands Clauses Consolidation Act (8 Vict. c. 18), s. 76, post, App.

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his account to the credit of the parties interested (describing them as well as the company can). To satisfy this provision there need not be an express order of the company to pay the money; but it is enough that the directors give the order; this they may do through the medium of a cheque drawn by the directors on the bankers of the company, expressive on its face of the trusts on which it is given; as where two directors drew a cheque payable to the other party or bearer, with a memorandum on the face of it that it should be paid into the Bank of England under the directions of the agents of the company's solicitor. (f)

297. Assuming the payment to be in accordance with the provisions of the act, we have, thirdly, to consider its effect (g) on the property. A railway act usually provides, that, on payment or tender of the purchase or compensation money, either to the party or parties interested or into the bank, as the case may be, the property shall vest in the company, and that all estates tail, estates in reversion and remainder, &c. therein shall be barred. Where all substantial interests in the premises are included in and covered by the payment, the fact of a dry legal right being left outstanding is no bar to the vesting of the entire property in the company.

298. Leaseholders for a long term of years, but who had underlet to a person who had been expelled for a breach of covenant, and who had given

(f) Taylor v. Clemson, 2 A. & E. N. S. 1030; S. C. 2 G. & D. 346; 3 Railw. Cas. 65.

(g) As to the effect of conveyance under Lands Clauses Consolidation Act, (8 Vict. c. 18) and as to interests omitted by mistake, to be purchased, see ante, p. 213, n. (r).

up the lease, but had executed no deed of surrender, agreed with the company for the sale of the premises; the under-lessee having disputed the title of the parties to sell, the company paid the money into court: it was held that the whole interest in the premises vested in the company notwithstanding the defective surrender. (h) So where a person interested in a long term of years in certain property, but in regard of which no rent was reserved, contracted by mistake to sell the fee simple to the company, it was held that the reversioner was barred as against the company, and that the transaction was equivalent to a sale of the fee. (i)

299. Fourthly. Of the enforcing payment of the compensation money; and herein, first, of the case where the owner of the land, &c. is entitled to receive the money; second, of the case where, according to the provisions of the company's act, it is to be paid into the bank. In the first case, where there is an agreement between the parties, the owner's remedy must of course be upon the agreement. If recourse has been had to the compulsory process given by the act, then, supposing that act points out any particular remedy, this is what the party must adopt; if not, still if the act contains the ordinary provision, making the verdict of the jury, and the consequent judgment a record, the proper remedy would seem to be by an action of debt upon the judgment; (k) though a mandamus has been held to lie in a like

(h) Ex parte Issauchaud 3 Y. & C. 721.

(i) Ex parte Jones, 4 Y. & C. 466.

(k) Corrigall v. London and Blackwall Railway Company, 5 M. & Gr. 219; S. C. 21 Law Jour. C. P. 216.

case. (1) In such action the plaintiff ought, it seems, both to aver and prove that he made a good title to the satisfaction of the company and was ready and willing to convey, &c., or what is equivalent thereto. (m) He must, moreover, show a default in payment on the part of the company pursuant to the act.(n)

300. Even where the act speaks of certain land (which the company are compellable to purchase) as belonging to a particular party, and gives to the party entitled to the purchase money a right of action for the same in default of payment within a specified time after the amount is ascertained either by the agreement of the parties or the verdict of a jury; yet this cannot be construed as amounting to a conclusive admission of the party's title, so as to render it obligatory upon the company to pay the money within that time without any further act on the part of the other side to show that he has something to convey to the company for the money. (n) Putting the most favourable construction on the words that they can possibly bear for the party interested, they cannot go beyond this, that the land is primâ facie to be considered his property till the contrary is shown, so as to dispense with the necessity of his showing a title in the first instance ; but it still leaves it open to the company to raise the

(1) Rex v. Nottingham Old Water Works Company, 6 A. & E. 355; sed quære the authority of this case as to this point. See case cited in preceding note.

(m) See declaration in Corrigal v. London and Blackwall Railway Company, ubi supra.

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