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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) Ex 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.


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.

question by their pleadings, whether such party has any title or not. (o)

301. In the second case, if the company refuse to pay the money into the bank pursuant to their act, the party interested may apply to the Court of Queen's Bench for a mandamus to compel them to do so. To support such an application, however, the party must clearly establish that the case is one where, pursuant to the requisitions of the act, the money ought to be so paid in; as, for instance, where he goes upon the ground of his inability to make out a title, he must clearly establish that he is unable to do so. (p). On the discussion of a rule nisi for a mandamus in this latter case, the propriety. of a mandamus to compel the original assessment of the compensation cannot, be questioned; (g) and in default of an affidavit to the contrary, the regularity of all proceedings essential to the verdict is to be presumed. (q). It is no ground for refusing the application, that, after the assessment, &c. and during the dispute on the title, the period limited for the exercise of the company's compulsory powers has expired. (p)..

302. So a party may, it seems, have his remedy in equity, where a company being bound under the provisions of their act to pay compensation money into the court of chancery, &c. instead of doing so retain it in their own hands, for the company cannot in equity be allowed to place themselves in a better

(0) Penney v. Great Western Railway Company, 1 Horn &

H. 247.

(p) Reg. v. Deptford Pier Company, 8 A. & E. 910.

(q) See Rex v. Nottingham Old Water Works Company, 6 A. & E. 355.

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