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. (f) 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.

templated by the act. This third head does not comprehend the case of a simple nonagreement, on the ground that the company will not treat or agree, but some cause or disability independent of the mere agreement of the parties themselves. Hence it follows, that a party who himself enforces the proceedings before the sheriff's jury, in default of the company doing so, cannot claim his costs under the above provision. (g)

309. The costs, for which the above provision purports to provide, in general, are those of summoning and returning the jury, taking the verdict, and the summoning and attendance of the witnesses. (h) These words cannot, it seems, be taken to include the general costs of the inquisition, such as solicitor's charges for letters and attendances, sums paid to surveyors for plans or for making valuations, fees of counsel, costs of drawing briefs and the like. And although the clause giving the jury process, and regulating the inquiry, enacts, that in such inquiry the party claiming compensation shall be deemed plaintiff, and entitled to the same rights and privileges as plaintiffs in action at law, yet this does not carry the party's right to costs any further, inasmuch as it must be understood as intended simply to regulate the course of the proceedings, to remove doubts concerning the right to begin, and to show in other respects how the inquisition should be conducted. (i) But where the act provides for the

(g) Corrigall v. The London and Blackwall Railway Company, 21 Law Journ. C. P. 209; S. C. 5 M. & Gr. 219. See further as to right to costs, Ex parte Turner, 1 W. W. & H. 305. (h) See Lands Clauses Consolidation Act, s. 52.

(i) Rez v. Gardner, 6 A. & E. 112; Reg. v. The Sheriff of Warwickshire, 2 Railw. Cas. 661.

costs not only of summoning and returning the jury, &c. but also of the inquest, those words would it seems be sufficiently large to carry the general costs of the inquiry. (k)

There

310. 3dly, Of the costs incidental to the subsequent disposition (1) of money which has been paid into the bank under the provisions of a railway act. are we have seen two cases in which it is usually provided by a railway act that the money shall be paid into court, first, where the title is in dispute, &c.; second, where the party in possession of the property at the time of the purchase, &c. is under some disability. Although in the former case the court are not expressly empowered to give costs, yet they may, it seems, do so under the general power vested in them under the usual provisions of a railway act in cases of disputed titles, viz. that of making any order in the premises that they think equitable or just. (m) And clearly they must be taken to have a jurisdiction for this purpose (which it is accordingly their duty to exercise, unless a special case is made out), where a railway act, after providing for cases of disability, goes on to enact that in other cases of the purchase money being paid into court under the act, it shall be lawful for the court to order the reasonable expenses of any party or parties in procuring the same to be paid out of court, together with the necessary costs of obtaining the proper orders, to be paid by the company. Under

(k) Rex v. The Justices of the City of York, 1 A. & E. 828. But costs of surveyors as such do not come under this head. (1) As to provisions of Lands Clauses Consolidation Act (8 Vict. c. 18), on subject of costs in cases of money deposited, see act, s. 80, post, App.

(m) See Ex parte Angell, 4 Y. & C. 496.

the above provision accordingly, where a party applied to have paid over to him the residue of certain purchase money, which had been reserved in court to await the decision of contested claims, (n) and to which he was rightfully entitled, the company were held liable to pay the costs of the application.

311. The usual provision in the second case we have already had occasion to notice. It obviously involves various questions about costs, viz., (1st,) about the costs of the interim investment of the money in the funds, and of the application for that purpose, &c.; (2ndly,) of the payment of the dividends of those funds, and the corresponding application, &c.; (3rdly,) of the permanent investment, and the application for that purpose, &c. First, then, where the act gives the "expenses of all purchases to be made by virtue of the act; this has been held to include the expenses occasioned by the interim investment in the funds. (0) So where the act speaks of the expenses of the reinvestment of the purchasemoney in land, or other disposition of the same, the company have been held liable to pay the costs of the interim investment. (p) But where the act speaks simply of costs, in consequence of the purchase, (q) or of the costs of such purchases (r) (thereby meaning the ultimate purchases of lands to be settled to the like uses), or of the expenses of all purchases (n) Ex parte Gardiner, re The Eastern Counties Railway Company, 3 Railw. Cas. 117.

(o) Er parte Bishop of Durham,

Y. & C. 690; Ex parte Bishop of Ely, ibid. 691, n. (b); sed quære; see n. (s), post,

p. 230.

(p) Ex parte Onslow, 1 Y. & C. 553. (9) Ex parte Hirst, 4 Y. & C. 468.

(r) Ex parte Taylor, 1 Y. & C. 229.

from time to time to be made in pursuance of the act, and of the order sanctioning such purchases, (5) this has been held not to carry the costs in question.

312. (2ndly.) As to the costs of the payment of the dividends of the stock, and the application for that purpose. Where an act empowered the court to order the reasonable costs, &c. of the investment and reinvestment, together with the necessary costs, &c. of obtaining the proper orders, and of all other proceedings for such purposes, and for the payment of the dividends, this was held to embrace the costs of the order for payment of the dividends, but not the costs of the payment. (t)

313. (3rdly.) As to the costs of the ultimate investment of the purchase money, &c. These would clearly be included under the terms of an act, which speaks of the expenses of all purchases to be made by virtue of the act. (u) So, notwithstanding an act make express provision for costs only in cases where the purchase money, &c. is to be laid out in the purchase of land to be settled to the like uses, a party may yet claim under it the costs of an appli

(s) Ex parte Molyneux, in re Manchester and Liverpool Railway Company, 9 Jurist, 786, cited post, p. 231. See also Ex parte Cooke, in re Liverpool and Manchester Railway Company, 3 Railw. Cas. 136.

(t) Ex parte Athorpe, 3 Y. & C. 396; see also n. (a), ibid. See also Mitchell v. Newell, in re Manchester and Leeds Railway Act, 3 R. Cas. p. 515, where, upon construction of the 157th section of the Manchester and Leeds Railway Act, it was held, that costs of payment of dividends were not to be borne by the company.

(u) See Ex parte Bishop of Durham, 3 Y. & C. 690. But see In re London Bridge Acts, 13 Sim. 176. There A. being a tenant for life of an estate with remainder to his sons successively in tail male, had entered into an agreement with B. by