L.C. WILLEY V. THE SOUTH-EASTFeb. 8, 9, 10. ERN RAILWAY COMPANY.

Railway-Lands Clauses Consolidation Act, 8 Vict. c. 18. s. 85, Construction of— Condition of Bond.

In 1846 a railway company served upon the plaintiff, a lessee for years, the usual notice that they required a certain part of his garden for the purposes of their railway. The plaintiff then sent in his claim for compensation, and no further steps were taken until August 1848, when the company, under the 85th section of the Lands Clauses Consolidation Act, having procured a valuation of the plaintiff's interest in invitum, and paid the amount into the Bank, and executed a bond for the like sum, entered into possession of the land. The sum paid in and the bond given were afterwards held not to be a compliance with the 85th section, and the company then paid the whole amount of the plaintiff's claim into the Bank, and executed to him a bond for the like sum:— Held, that the laches of the company in not following up their notice of 1846, did not preclude them from taking advantage of the 85th section.

Where a railway company have taken possession under the 85th section, when, in consequence of unintentional error, they were not entitled so to do, the Court will authorize their continuing in possession upon afterwards complying with the requisitions of the statute.

Where a railway company treat with a claimant as the party interested in the land, it is sufficient that the bond to be given under the 85th section secures payment of the compensation money to "the claimant, his executors," &c., without referring to parties interested in the premises."

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The plaintiff in this case was the lessee for years of a house and grounds at Blackheath, and a small strip of land intersecting his kitchen garden was required by the South-Eastern Railway Company for the purposes of their line to Gravesend.

On the 9th of December 1846 the company served upon the plaintiff the usual notice to treat for and take possession of that piece of land, which was described in their notice as numbered 18 in the plan deposited with the clerk of the peace. A

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plan was also annexed to the notice, in which the strip of land required was distinguished by being coloured red, and was stated to comprise 1R. 8P. The plaintiff then sent in his claim of 2,350l. for purchase and compensation money, but offered to accept 1,500l. if the company would build a bridge to connect the two parts of his kitchen garden which would be dissevered by the railway cutting.

The company took no further steps till July 1848, when their solicitor wrote to the plaintiff offering 4631. and to build a connecting bridge. This offer being declined by the plaintiff, the company, in August following, took proceedings under the Lands Clauses Consolidation Act (8 Vict. c. 18,) to have a surveyor appointed by one of the Metropolitan Police Magistrates for Woolwich, to estimate the amount which ought to be paid to the plaintiff. A surveyor was accordingly appointed, and in September 1848 he valued the plaintiff's interest in the land at 740l., and ordered that the company, in addition, should construct a bridge to connect the two portions of the garden. The company then paid into the Bank the sum of 7401., and gave a bond for the like amount, with two sureties, dated in November 1848, and conditioned for payment to the plaintiff or his representatives, or for deposit in the Bank, of all such purchase or compensation money as might become payable in respect of the plaintiff's interest in the land, together with interest from the time of the company's taking possession. The company, on the 21st of November 1848, entered and staked out the line; and the plaintiff then insisted that the 85th section of the act had not been complied with, as from the nature of the surveyor's award the whole consideration could not be paid into Court. On the 20th of December 1848 the plaintiff filed his bill against the company for an injunction; and on the 31st of January 1849 an injunction was granted by the Vice Chancellor restraining the company from entering upon or taking possession of the plaintiff's land, until they had complied with the requisitions of the Lands Clauses Consolidation Act. The company then paid into the Bank to the account of the plaintiff the sum of 2,3501., (being the whole amount claimed by him)

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and, on the 2nd of February 1849, tendered him a bond, executed by themselves and two sureties for the like sum. The bond recited that the company required for the purposes of their railway a piece of land situate at Charlton, containing 1 rood 8 perches, being part of a plot of land numbered 18 on the plan deposited with the clerk of the peace, in which the plaintiff claimed to be interested, and that the plaintiff claimed 2,350l. as purchase-money or compensation for his interest therein; and that the company had deposited that sum in the Bank of England to the account of the plaintiff. The condition of the bond was for payment by the company, or their sureties, to the said R. Willey, his executors, administrators, or assigns, or for the deposit in the Bank of England, for his or their benefit, as the case might require, under the provisions of the Lands Clauses Consolidation Act, all such purchasemoney or compensation as might, in any manner by the same act provided, be determined to be payable by the company, in respect of the interest of the said R. Willey in the said hereditaments and premises, together with interest thereon, at the rate of 51. per cent. per annum, from the time of entering upon the said hereditaments and premises by the company, until such purchase-money or compensation should be paid or deposited. On the 3rd of February, on the motion of the company, an order was made, dissolving the injunction. A motion was now made by way of appeal to the Lord Chancellor to discharge the order of the Vice Chancellor dissolving the injunction.

Mr. Rolt and Mr. Bagshawe, for the motion. The question is, whether the 85th section was intended to apply only to those cases in which railway companies were desirous of getting possession of land before an award could possibly be made; or to all cases, whatever may have been the laches or negligence of the company. The benefits given by the 85th section were intended to be applicable only in the first class of cases; and that construction is fortified by the 86th and 89th sections of the same act. But if this objection is not sustainable, then the bond given by the company is open to several objections. First, the bond was given after the entry

of the company upon the land, and not before, as required by the 85th section. Secondly, the identity of the land entered upon with that referred to in the bond does not appear. Thirdly, the bond professes to secure interest on the purchasemoney from the time of entry; but the entry contemplated by the bond is a future entry; and the company had been in possession two months before the giving of the bond. Fourthly, the bond ought to protect the interest of all parties who may really be interested in the land, and not merely provide for the person who alleges himself to be the lessee; but the bond is conditioned for payment to the plaintiff or his representatives only Poynder v. the Great Northern Railway Company (1).

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Mr. Bethell and Mr. J. Baily, for the company. The bond to be given under the act is to deal with two alternatives, either payment to the party entitled or deposit in the Bank for the benefit of the parties interested. In this case, the company dealing with the plaintiff as the party entitled, the first alternative is all that is required.

[The LORD CHANCELLOR.-It is a singular objection for a party to take that the security is personal to himself.]

Where the company have failed to comply with the requisites of the 85th section, the Court will permit them to set the matter right, giving to the proprietor all that he could be entitled to under that section.

Mr. Rolt replied.

Feb. 10.-The LORD CHANCELLOR.The question is, whether a case has been shewn of any irregularity on the part of the company, in the course pursued by them, or in the bond which has been given, to justify the Court in restraining the company from proceeding with their works, or dealing with the land in question under the authority of the act. The whole amount of the money claimed has been paid into the Bank, and a bond has been given to Mr. Willey. Mr. Willey claiming to be and being, as the company are willing to assume, the lessee for years of the land

(1) 2 Ph. 330; s.c. 16 Law J. Rep. (N.S.) Chanc. 444.

in question, they have given him a bond according to the provisions of the act. Now, by the act, whether the company choose to purchase by agreement or by arbitration, or by going before a jury, in all the various modes in which the company are authorized to get possession of land, two states of circumstances are contemplated. They

may deal with a party upon his own title, and so conclude the contract with him; or he may be a party having a partial interest, but authorized to sell under the act. In the latter case he is, of course, not entitled to receive the purchase-money himself, but arrangements are provided to secure the interests of those in remainder. But if the company deal with the party himself, and circumstances exist under which he is not entitled to receive the money until certain acts are done by himself, as if he refuse to convey, or to make out his title under the provisions of the act, the money would not be paid to him until he had complied with those provisions, but must be paid into the Bank. It does not, therefore, follow because the company treat with him as owner of the interest purchased, that of necessity the money must be payable to him in the first instance.

The 85th section is that under which this company have proceeded. This section provides for the necessity the company may be under of taking the land before they have completed their contract. [The Lord Chancellor here read the 85th section.] Now, the first part of the provision has been complied with, for the whole amount claimed has been paid into Court.

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under this provision, it may be that the company are dealing with a party who is not the actual owner, but who has the power to sell. In this case the money must come into the Bank. Again, they may be dealing with a party whom they are willing to assume as the owner, but even in this case a state of things might arise in which he would not be entitled to receive payment of the purchase-money. Therefore, the object of that section was not to affect the prior clause, but to enable the company, provided they placed the party entitled to the land in a secure position as regarded his interest therein, to enter upon the land and carry on their works, notwithstanding they had not be

come the purchasers of the land, but had deposited the amount in the Bank and given security to the parties interested for all those benefits which the act intended they should have. In this case the company have dealt with Mr. Willey as owner of the lease, and they were competent so to do. They might have ascertained the value of his interest by agreement, and so purchasing of him they were not bound to look to any other parties, because they deal with him at their own risk. Still they have to require from him, before he can receive the value of the land which they have taken, the performance of certain acts by which their title is completed; he must assign to them his lease before he can have his purchase-money. Therefore they only require to have the money kept in medio until Willey shall entitle himself to receive it by doing all those acts which he is previously compellable to perform. The bond provides precisely for that event; neither do I know in what better language it could be provided for. They might have dealt with a party not under his estate, but under his power of selling by virtue of the act. In this case they have dealt with him in respect of his own interest, and they have the means of compelling him to deal with that interest so as to vest it in themselves.

Now, the case of Poynder v. the Great Northern Railway Company has been compared to this case. I have looked at that case several times, and do not discover any similarity. The company did not in that case deal with the party as owner of the beneficial interest, but, on the contrary, the bond was in the general terms of the act, which are in the alternative. The money might have been paid into Court for the purpose of security, and for the benefit of those entitled to other interests in the land; and the difficulty as to the bond there was, that though the money was paid into Court upon both alternatives, yet the bond made it payable to the party on demand," therefore I altered the condition of the bond by taking out the words "on demand," and inserting the words "payable as the case under the act might require." You might suppose this bond taken from the decision I came to in Poynder v. the Great Northern Railway Company; but that case has really nothing to do with

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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 proposition 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 terms 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.

in-law, the obligor, to establish him in business, 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 1,000l. 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 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 suggestion of the testator, he effected a composition of 11s. in the pound; the testator guaranteed the payment of it; and at the

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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 60l., 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 150l. 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 argument that this ledger had not been produced.