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L.C. | WILLEY V. THE SOUTH-EAST- plan was also annexed to the notice, in Feb. 8, 9, 10.S ERN RAILWAY COMPANY. which the strip of land required was disRailway-Lands Clauses Consolidation
tinguished by being coloured red, and was
stated to comprise 1R. 8P. Act, 8 Vict. c. 18. s. 85, Construction of
The plaintiff Condition of Bond.
then sent in his claim of 2,3501. for pur
chase and compensation money, but offered In 1846 a railway company served upon to accept 1,5001. if the company would the plaintiff, a lessee for years, the usual build a bridge to connect the two parts of notice that they required a certain part of his kitchen garden which would be dishis garden for the purposes of their railway severed by the railway cutting. The plaintiff then sent in his claim for The company took no further steps till compensation, and no further steps were July 1848, when their solicitor wrote to the taken until August 1848, when the company,' plaintiff offering 4631. and to build a conunder the 85th section of the Lands Clauses necting bridge. This offer being declined Consolidation Act, having procured a valu- by the plaintiff, the company, in August folation of the plaintif's interest in invitum, lowing, took proceedings under the Lands and paid the amount into the Bank, and Clauses Consolidation Act (8 Vict. c. 18,) executed a bond for the like sum, entered to have a surveyor appointed by one of the into possession of the land. The sum paid Metropolitan Police Magistrates for Woolin and the bond given were afterwards held wich, to estimate the amount which ought not to be a compliance with the 85th section, to be paid to the plaintiff. A surveyor and the company then paid the whole amount was accordingly appointed, and in Sepof the plaintiff's claim into the Bank, and tember 1848 he valued the plaintiff's inexecuted to him a bond for the like sum:- terest in the land at 7401., and ordered Held, that the laches of the company in not that the company, in addition, should confollowing up their notice of 1846, did not struct a bridge to connect the two portions preclude them from taking advantage of the of the garden. The company then paid 85th section.
into the Bank the sum of 7401., and gave Where a railway company have taken a bond for the like amount, with two possession under the 85th section, when, in sureties, dated in November 1848, and consequence of unintentional error, they conditioned for payment to the plaintiff were not entitled so to do, the Court will or his representatives, or for deposit in the authorize their continuing in possession upon Bank, of all such purchase or compensaafterwards complying with the requisitions tion money as might become payable in of the statute.
respect of the plaintiff's interest in the land, Where a railway company treat with a together with interest from the time of the claimant as the party interested in the land, company's taking possession. The comit is sufficient that the bond to be given under pany, on the 21st of November 1848, the 85th section secures payment of the entered and staked out the line; and the compensation money to "the claimant, his plaintiff then insisted that the 85th section executors," &c., without referring to “ the of the act had not been complied with, as parties interested in the premises."
from the nature of the surveyor's award
the whole consideration could not be paid The plaintiff in this case was the lessee into Court. On the 20th of December 1848 for years of a house and grounds at Black- the plaintiff filed his bill against the comheath, and a small strip of land intersect- pany for an injunction ; and on the 31st ing his kitchen garden was required by the of January 1849 an injunction was granted South-Eastern Railway Company for the by the Vice Chancellor restraining the purposes of their line to Gravesend.
company from entering upon or taking . On the 9th of December 1846 the com- possession of the plaintiff's land, until they pany served upon the plaintiff the usual had complied with the requisitions of the notice to treat for and take possession of Lands Clauses Consolidation Act. The that piece of land, which was described company then paid into the Bank to the in their notice as numbered 18 in the plan account of the plaintiff the sum of 2,3501., deposited with the clerk of the peace. A (being the whole amount claimed by him)
NEW SERIES, XVIII.-CHANC.
and, on the 2nd of February 1849, ten- of the company upon the land, and not dered him a bond, executed by themselves before, as required by the 85th section. and two sureties for the like sum. The Secondly, the identity of the land entered bond recited that the company required for upon with that referred to in the bond the purposes of their railway a piece of does not appear. Thirdly, the bond proland situate at Charlton, containing 1 rood fesses to secure interest on the purchase8 perches, being part of a plot of land money from the time of entry ; but the numbered 18 on the plan deposited with entry contemplated by the bond is a future the clerk of the peace, in which the plaintiff entry; and the company had been in claimed to be interested, and that the plain- possession two months before the giving tiff claimed 2,3501, as purchase-money or of the bond. Fourthly, the bond ought compensation for his interest therein ; and to protect the interest of all parties who that the company had deposited that sum may really be interested in the land, and in the Bank of England to the account of not merely provide for the person who the plaintiff. The condition of the bond alleges himself to be the lessee ; but the was for payment by the company, or their bond is conditioned for payment to the sureties, to the said R. Willey, his exe plaintiff or his representatives only cutors, administrators, or assigns, or for Poynder v. the Great Northern Railway the deposit in the Bank of England, for his Company (1). or their benefit, as the case might require, Mr. Bethell and Mr. J. Baily, for the under the provisions of the Lands Clauses company.—The bond to be given under the Consolidation Act, all such purchase. act is to deal with two alternatives, either money or compensation as might, in any payment to the party entitled or deposit manner by the same act provided, be de- in the Bank for the benefit of the parties termined to be payable by the company, interested. In this case, the company in respect of the interest of the said dealing with the plaintiff as the party enR. Willey in the said hereditaments and titled, the first alternative is all that is premises, together with interest thereon, at required. the rate of 51. per cent. per annum, from the [The Lord CHANCELLOR.-It is a sintime of entering upon the said heredita- gular objection for a party to take that the ments and premises by the company, until security is personal to himself.] such purchase-money or compensation Where the company have failed to comshould be paid or deposited. On the 3rd ply with the requisites of the 85th section, of February, on the motion of the com- the Court will permit them to set the pany, an order was made, dissolving the matter right, giving to the proprietor all injunction. A motion was now made by that he could be entitled to under that way of appeal to the Lord Chancellor to section. discharge the order of the Vice Chancellor Mr. Rolt replied. dissolving the injunction.
Mr. Rolt and Mr. Bagshawe, for the Feb. 10.–The LORD CHANCELLOR.motion.— The question is, whether the 85th The question is, whether a case has been section was intended to apply only to those shewn of any irregularity on the part of cases in which railway companies were the company, in the course pursued by desirous of getting possession of land before them, or in the bond which has been given, an award could possibly be made ; or to to justify the Court in restraining the comall cases, whatever may have been the pany from proceeding with their works, or laches or negligence of the company. The dealing with the land in question under the benefits given by the 85th section were authority of the act. The whole amount intended to be applicable only in the first of the money claimed has been paid into class of cases; and that construction is the Bank, and a bond has been given to fortified by the 86th and 89th sections of Mr. Willey. Mr. Willey claiming to be the same act. But if this objection is not and being, as the company are willing to sustainable, then the bond given by the assume, the lessee for years of the land company is open to several objections. (1) 2 Ph. 330; s.c. 16 Law J. Rep. (N.s.) Chanc. First, the bond was given after the entry 444.
in question, they have given him a bond come the purchasers of the land, but had according to the provisions of the act. Now, deposited the amount in the Bank and by the act, whether the company choose to given security to the parties interested for purchase by agreement or by arbitration, all those benefits which the act intended or by going before a jury, in all the various they should have. In this case the commodes in which the company are authorized pany have dealt with Mr. Willey as owner to get possession of land, two states of of the lease, and they were competent so circumstances are contemplated. They to do. They might have ascertained the may deal with a party upon his own title, value of his interest by agreement, and so and so conclude the contract with him; or purchasing of him they were not bound to he may be a party having a partial inter- look to any other parties, because they deal est, but authorized to sell under the act. with him at their own risk. Still they have In the latter case he is, of course, not en- to require from him, before he can receive titled to receive the purchase-money him- the value of the land which they have taken, self, but arrangements are provided to the performance of certain acts by which secure the interests of those in remainder. their title is completed; he must assign to But if the company deal with the party him- them his lease before he can have his purself, and circumstances exist under which chase-money. Therefore they only require he is not entitled to receive the money until to have the money kept in medio until certain acts are done by himself, as if he Willey shall entitle himself to receive it refuse to convey, or to make out his title by doing all those acts which he is preunder the provisions of the act, the money viously compellable to perform. The bond would not be paid to him until he had com- provides precisely for that event; neither plied with those provisions, but must be do I know in what better language it could paid into the Bank. It does not, therefore, be provided for. They might have dealt follow because the company treat with with a party not under his estate, but under him as owner of the interest purchased, his power of selling by virtue of the act. that of necessity the money must be pay In this case they have dealt with him in able to him in the first instance.
respect of his own interest, and they have The 85th section is that under which this the means of compelling him to deal with company have proceeded. This section that interest so as to vest it in themselves. provides for the necessity the company Now, the case of Poynder v. the Great may be under of taking the land before Northern Railway Company has been comthey have completed their contract. (The pared to this case. I have looked at that Lord Chancellor here read the 85th section. 7 case several times, and do not discover any Now, the first part of the provision has similarity. The company did not in that been complied with, for the whole amount case deal with the party as owner of the claimed has been paid into Court. And beneficial interest, but, on the contrary, under this provision, it may be that the the bond was in the general terms of the company are dealing with a party who is act, which are in the alternative. The not the actual owner, but who has the money might have been paid into Court power to sell. In this case the money for the purpose of security, and for the must come into the Bank. Again, they benefit of those entitled to other interests may be dealing with a party whom they in the land; and the difficulty as to the are willing to assume as the owner, but bond there was, that though the money even in this case a state of things might was paid into Court upon both alternatives, arise in which he would not be entitled to yet the bond made it payable to the party receive payment of the purchase-money. “on demand," therefore I altered the conTherefore, the object of that section was dition of the bond by taking out the words not to affect the prior clause, but to enable “ on demand," and inserting the words the company, provided they placed the “payable as the case under the act might party entitled to the land in a secure posi- require." You might suppose this bond tion as regarded his interest therein, to taken from the decision I came to in Poynder enter upon the land and carry on their v. the Great Northern Railway Company; works, notwithstanding they had not be- but that case has really nothing to do with
the present, as here the company have thought proper to deal with an individual in respect of his individual interest.
Several other points were taken. First, as to the identity. There is no question about the identity of the land. The company gave notice of purchasing the land, and the only object of the bond is to secure the money payable in respect of that purchase. The 85th section was merely to provide a means by which the company might take possession of the land identified by former transactions, and secure the purchase-money to the party entitled.
Another objection raised was, that as the company had taken possession of the land before the bond was given, that could not be a taking possession under the act. That was just the case of Poynder v. the Great Northern Railway Company. It must come to this, that the 85th section could never'apply if the exact provisions of the act had not been complied with in the first instance, that is, the whole benefit of that section would be done away with. But this pro position it is impossible to maintain: for though this Court has very beneficially interfered to prevent abuses of their powers by great companies, yet there must be something like equity as the foundation for the Court's interfering upon the mere abuse of power. Here, however, the plaintiff is asking me by a forced construction of the 85th section virtually to strike it out of the act. If the Court finds means of doing justice between the parties, the Court will not interfere except under such provisions as will be effectual and equitable for that purpose, nor otherwise than by seeing that each party has that which he is entitled to. Possession has been taken it is said erroneously, because the bond was not within the provisions of the act; and therefore, as in Poynder's case, the possession was not taken under the provisions of the act. Still possession was taken, whether de novo or continued, is not material; but the company having given to the party all the benefit intended for him by the act, the Court did not treat that as a transaction not according to the provisions of the act, but as being within the act itself. I consider that not only as correct under the terins of the act itself,
but as a decision upon the act come to in another case. The condition of the bond I have already observed upon.
Upon the fourth point, namely, that the money was paid into the Bank to the account of Willey: if the company think fit to deal with Willey as owner of the land, it is quite correct to pay it into the Bank on his account, and it may very properly remain there until he performs the duty which he is bound to do.
There is one other point on which I confess I have some difficulty; which is as to interest from the time of taking possession. The act provides that interest shall be calculated from the time of the party entering into possession ; and a question may arise when the party entered into possession. Because, if the Court finds that the bond was not according to the provisions of the act, but that the company entered into possession under an erroneous bond, then the question, as to what interest is payable, whether from the original possession, or from the time when the bond was set right may arise, when the consideration arises as to what interest is payable. The difficulty in this respect does not appear to me at all to affect the question of the injunction. Whether Willey or any other party, where the possession taken has been irregular, has a right to treat that possession as a trespass or not, or treating it as a rightful possession to claim interest from the time of entry, is a matter of no great importance on the question of the injunction, though it may be very material at a subsequent stage of the transaction between the parties.
Being of opinion that the company are right in the bond given, that they are right in their course of proceedings under the provisions of the act, and are now rightfully in possession under the 85th section, the motion must be refused with costs.
Debton Bond-Release by Obligee Declaration of Intention.
The obligee on a bond for securing 1,000l., with interest, advanced by him to his brotherin-law, the obligor, to establish him in busi ness, promised the latter, at the time of his insolvency, to forego the debt, and give up the bond to be cancelled. The bond having been mislaid, was not given up; and the obligee, in his will dated after the insolvency, specified the debt as being then due, but made no application either for principal or interest in his lifetime :-Held, on exceptions to the Master's report, that the mere declaration of intention was not sufficient to release the debt either at law or in equity, and therefore that the obligor and his sureties still remained liable for it on the bond.
The Master, by his general report of the 15th of April 1847, found that part of the then outstanding personal estate of Thomas Cross, the testator named in the pleadings (for the administration of whose estate the present suit had been instituted), consisted of the sum of 1,000l. and interest, secured by the bond of William Gilbert, one of the defendants, dated the 3rd of December 1838, and in which John Gilbert, another defendant, and one R. W. Hyde had each joined as a surety for William Gilbert to the extent of 3331. 6s. 8d. and interest. By the decree on further directions it was amongst other things, referred back to the Master to inquire whether John Gilbert was liable to pay any part of the said sum of 1,0001, and interest; and under this reference a counter state of facts to that carried in by the plaintiff was laid before the Master by John Gilbert, setting forth as follows: William and John Gilbert were brothers-in-law of the testator, who had, on the execution of the bond, advanced 1,000l. to William Gilbert, for the purpose of establishing him in business as a muslin embroiderer, in partnership with one W. G. Fraser. The money was payable at the end of three months from the date of the bond, and John Gilbert and Hyde were merely sureties. No application for principal or interest was ever made by the testator. The partnership was dissolved about a year and a half after its commencement, and the firm being insolvent, William Gilbert undertook to arrange with its creditors. By the advice and at the sugges tion of the testator, he effected a composition of 11s. in the pound; the testator guaranteed the payment of it; and at the
same time verbally agreed with him wholly to relinquish the bond debt and interest. The testator also promised him to give up the bond to be cancelled, but afterwards said that he could not find it. The composition could not have been made if the bond debt had not been relinquished. After the dissolution, the testator lent William Gilbert various sums of money, which had been since repaid ; and shortly before his own death, gave him 601., and told him that that sum and all other sums which had not been repaid, were to be considered as gifts. John Gilbert never consented to the testator's not requiring payment of the bond debt and interest, or to his giving time to William Gilbert for the re-payment.
The evidence in support of this state of facts consisted of the affidavits of William and John Gilbert, and of one John Thompson who had been a managing clerk in the firm of Sewell & Cross, to which the testator belonged. John Gilbert had no knowledge of the testator's representations to William Gilbert, except from the information of the latter, Thompson deposed to his belief that the testator intended to relinquish the bond debt and interest, because the latter had frequently expressed to him an intention to that effect, and that he, the testator, considered it as a gift to William Gilbert. Thompson also said that he believed the testator had erased the debt from his private ledger (1); and he further stated that the defendant, Harriet C. Sprigg, the widow and administratrix of the testator, shortly after his death informed him (Thompson) that the testator on his death-bed told her that William Gilbert was not to be called upon for the money secured by the bond. The testator died in September 1841. By his will, dated the 2nd of September 1840, he made several bequests, amongst which were legacies of 1501. to each of the Gilberts, and gave the residue of his property to the defendant Harriet C. Sprigg for life. In his will the testator specified the said bond debt amongst others which he mentioned to be then subsisting, and did not include it in those from which he there expressed his wish that certain persons should be relieved.
(1) It was stated during the arguinent that this ledger had not been produced.