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situation, than they would have been, if they had discharged their duty under the act of parliament, or to alter the position of the rightful claimant. Now had the company chosen to act as they ought to have done, and paid the money into the court of chancery, that court would have become the trustee for the rightful claimant; consequently as to him, the company retaining the money must be considered as his trustee, exactly as the court of chancery would have been if the money had been deposited with the court. (r) And it may be strongly questioned whether in such a case, which starts with the proposition that one side is cestui que trust and the other trustee, any length of time would be a bar to the lawful claimant, it being admitted that the company have assets, and that the money has not been paid, but remains in their hands. At any rate as the bar from lapse of time proceeds in a court of equity upon the laches of the party in not claiming sooner, it cannot be applicable to a case, in which the legislature permits a bargain with an unascertained person, and where there is no laches after he is ascertained. The party to maintain his suit must of course be prepared to prove that he is entitled to the compensation. (s)
303. Lastly, Of the ulterior disposition of the compensation money, where it is paid into the bank. The cases where a railway act usually authorizes this mode of payment, are as we have seen mainly reducible to two: first, where there is a failure to convey or make out a title to the satisfaction of the
(r) Judgment of Alderson, B. in Cator v. Croydon Canal Company, 4 Y. & Coll. 419.
(s) Cator v. Croydon Canal Company, 4 Y. & Coll. 405.
company, &c.; the second, where the party in possession has a limited interest only in the premises, or labours under some incapacity, &c. In the former(t) case the act usually empowers the Court of Chancery, on application of the party laying claim to the money, or any part of it, to make the requisite orders touching its future disposition, providing at the same time that the party in possession of the property at the time of the purchase by the company shall be presumed to be entitled to such money, until the contrary shall be shown to the satisfaction of the court. Under the above provision, where the right to the money is uncontested, the party in possession would seem entitled to have the money paid out of court to him on his own affidavit of title. (u)
304. Where there are several parties who lay claim to a share of the money, their several interests may be adjusted on petition to the court; or the court will, if necessary, direct an issue to ascertain both who are the parties really interested in the property, and the proportionate value of their several interests. (x)
305. Where the party in possession is under any of the incapacities (y) contemplated by the act, &c. the usual provision is, that the money shall by order of
(t) As to provisions of Lands Clauses Consolidation Act (8 Viet. c. 18), on this subject, see Act, ss. 78, 79, post, App. (u) Ex parte Grainge, 3 Y. & Coll. 62; see also n. (a) and n. (b), ibid. 66.
(1) Ex parte Issauchaud, 3 Y. & Coll. 721. See also Er parte Gardner, 4 Y. & Coll. 503.
(y) See Lands Clauses Consolidation Act (8 Vict. c. 18), ss. 69, 70.
the Court of Chancery, made upon petition of the party, be applied either in discharge of some burthen incident to the estate of that party, or in the purchase of other lands to be settled to the like uses as the lands taken by the company, and that, in the interim and until this can be done, the money may by order of the court, upon application thereto, be invested in the funds, &c., the dividends to be payable by the order of the court to the party who would for the time being have been entitled to the rents and profits of the lands to be purchased. The court would seem inclined to put a liberal construction on the superintending powers thus conferred upon them, and accordingly to sanction by virtue of it any application of the money, which, though not strictly within the words, is yet substantially in advancement of the intention of the act. Where therefore a sum of money is in court, previously to its being laid out in lands to be settled to the like uses, the court will order it to be applied in new erections. (z) So where an opportunity for an advantageous purchase, beyond the amount of the money in court, presents itself, the court will lend its aid towards the accomplishment of such purchase, and accordingly will direct the extra costs to be paid out of the fund in court. (a) And a tenant for life, who has redeemed the land tax before the passing of the company's act, will be permitted to reimburse himself out of the proceeds of the land purchased of him by the company (b).
(z) Ex parte Shaw, 4 Y. & C. 506.
306. It is proposed in the next place to treat of costs (c) incidental to the taking of lands for the purpose of a railway, and the provisions made by the different railway acts on this subject. Every railway act, it is clear, ought to contain a series of provisions on this head, calculated to afford to the owners of property a fair and reasonable indemnity against the class of costs in question, as otherwise it would be exposing a party to have his property diminished by reason of its being taken from him for the purposes of the company. Such provisions. accordingly are to be construed liberally, and in favour of the parties whose interests they are intended to protect. In considering the question of costs, it is proposed to take 1st, the simplest case, where only the ordinary costs attending a purchase are in question; 2ndly, where recourse having been had to the compulsory process provided by the act for ascertaining the amount of the purchase or compensation money, it is sought to recover the costs
(e) For question as to taxation of costs, and whether agreement referring to costs meant to regulate only the description of costs to be borne by the Company, or the mode of ascertaining the amount also, so as to exclude the provisions of a subsequent act on the subject, see In re Great Western Railway Company's Amendment Act, and In re Thomas Rhodes, 8 Jurist, 1109; S. C. 23 Law Journ. Ch. 97; 3 Railw. Cas. 516; motion under subsequent act for order of reference to tax bill of costs refused with costs, on the ground that on an application of that sort the court had no opportunity of considering the special agreement, nor whether it provided any mode for ascertaining the costs or not. Ib. As to taxation of costs of inquiry under Lands Clauses Consolidation Act (8 Vict. c. 18), see Act, s. 52, post, App.; same as to costs of conveyances, see ib. s. 83.
thereby occasioned; 3rdly, where the money having been paid into the bank, the costs attending its subsequent disposition are in dispute; 4thly, where the company, in order to complete their title, are necessitated to have recourse to a court of equity.
307. 1st, Where a railway act provides that "the contract, sale and conveyance" (d) shall be made at the expense of the company, these words must it seems be construed to cover the costs of making out the title. (e) And it makes no difference that these costs are provided for in express terms by a subsequent act. (e)
308. 2dly, Of the costs incidental to the holding of the inquisition, &c. (ƒ) In considering the effects of the usual provision on this head, it may be proper to show, first, in what cases it gives costs; secondly, to what description of costs it applies. First, there are three cases in general contemplated by the above enactment, first, where the jury shall give the same or a greater sum than the company have previously offered; secondly, where the verdict of the jury is given for a less sum, and thirdly, where, by reason of absence in foreign parts, or from any other cause or disability not provided for in the act, any person shall be prevented from treating or agreeing as con
(d) As to provisions of Lands Clauses Consolidation Act (8 Vict. c. 18), on subject of costs of conveyances, &c. see act, s. 82, post, App.
(e) Ex parte The Trustees of John Addey's Charity, In re The London and Greenwich Railway Company, 3 Railw. Cas. 119; S. C. 3 Hare, 22.
(f) As to provisions of Lands Clauses Consolidation Act (8 Vict. c. 18), on subject of costs of inquiry, see act, ss. 5153, post, App.