tions. This distinction was pointed out, in the judgment in De Tastet v. Bordenave, and the grounds of it were intelligible. Upon interlocutory applications, the Court had not to decide a question of right, but merely whether it would protect property until the right to it should be determined. If the affidavits in support of and against the application should be too nicely balanced for the Court to decide upon them, questions were sometimes sent to a jury upon which the parties themselves were allowed to be examined; but that proceeding was only to enable the Court to decide whether it should or should not interfere to protect the property pending the dispute. The case of Gompertz v. Ansdell (12) was in point. There, upon an interlocutory application, an issue had been directed to try a question of fact upon which the title of the parties depended. A verdict was found in favour of one party, and the Court refused on motion to disturb it. The other party was, notwithstanding, allowed to proceed with the cause and go into evidence; and at the hearing, his evidence being sufficient to raise a reasonable doubt of the correctness of the verdict, another issue on the same question was directed. In the case of Milner v. Singleton, where, amongst other things, the Vice Chancellor of England directed that the plaintiff might be examined on the trial of the issue, the defendant appealed to the Lord Chancellor upon two points: first, that no issue should have been directed ; and, secondly, that the form of the issue in directing the plaintiff to be examined was faulty. The Lord Chancellor allowed the issue to be tried unaltered; but did not notice the second point in the judgment. That was a very special case, and could not be treated as a precedent. Neither could what fell from his Lordship in Parker v. Morrell be considered to have established the principle for which the defendant in the present case had contended.

The cases on petitions in bankruptcy depended upon the peculiar manner in which the Court there proceeded, and which was quite different from its procedure in causes. The statutes cited, whereby in certain cases parties might have the benefit of their own testimony and a supposed analogy between

(12) 4 Myl. & Cr. 449.

those cases and the present, had been pressed upon the Court. But the fact that interested parties might give evidence in cases of small amount and in local courts, might be used as an argument against, rather than for, such practice in other cases. The consequences which might ensue to parties who had no evidence of their rights but their own statements, and the circumstance that such parties might fail if not allowed to give their own testimony, were not in themselves sufficient to dispense with the general rule, that neither the plaintiff nor the defendant could in civil causes be a witness in his own behalf.

These observations were not meant to apply to merely formal parties; nor to imply that cases might not occur where, in directing an issue, the Court might at the hearing order one party to be examined at the request and with the consent of the other. This was done in the case of Freeman v. Tatham(13). In these cases such directions were given, not that one party might have the benefit of his own testimony to prove his case; but that the other party might have an opportunity of cross-examining his opponent, and thus ascertaining or testing the truth of his statements.

and other persons interested in his property. One of the defendants, William Foster, who had been served with a copy of the bill, under the 23rd Order of August 1841 (1), died before he had put in his appearance, and his personal representative was brought before the Court by a supplemental bill, which set forth all the statements in the first bill, and contained a similar prayer; and it asked that the representative of William Foster might be bound by all the proceedings in the first suit. To this bill, none of the defendants in the first suit were made parties.

The causes now came on to be heard. It was objected that the surviving defendants in the first suit ought to have been made parties to the second suit, which was in the nature of an original bill; that unless all the original defendants were made parties to the second suit, the representative of William Foster could not be bound by the proceedings in the first suit.

For the plaintiff it was contended, that the second bill was an original bill in the nature of a supplemental bill, and that all had been done which was necessary for the purpose of putting the representative of William Foster in the same position as William Foster himself.

Mr. Bethell and Mr. Hardy appeared for the plaintiff; and

Mr. Stuart, Mr. Nicholls, Mr. J. Parker, Mr. Lloyd, and Mr. Prior appeared for the defendants.

Hardy v. Hull (2) was the only case cited.

The VICE CHANCELLOR.-This party has been brought before the Court by original bill, and it appears to me that all the parties to the first suit should have been made parties to this, although they need not have answered what they had before answered. I shall therefore direct the cause to stand over, with liberty to add parties by amendment or otherwise as the plaintiff may be advised. The costs of the day to be paid by the plaintiff.

(1) Ord. Can. 10 Law J. Rep. (N.s.) Chanc. 413. (2) 14 Sim. 21.

Demurrer-Jurisdiction-Lands Clauses Consolidation Act, 1845-Railway Company -Summoning Jury.

A railway company took permanent possession of the plaintiffs' land for the purposes of the undertaking under the compulsory powers given by the Lands Clauses Consolidation Act 1845, and incorporated with their special act. The sum of 100l. at which the interest of the plaintiffs in the land had been assessed by a surveyor duly appointed on the application of the company, was deposited in the Bank of England, and the usual bond given. The plaintiffs were dissatisfied with the amount so assessed, and required the company to issue a warrant to the sheriff for summoning a jury to determine the value of their interest. The company took no steps for that purpose, and the plaintiffs therefore filed a bill, praying for a declaration that the company ought forthwith to complete the purchase, and for a decree that they should forthwith take all fit and proper proceedings to determine the amount to which the plaintiffs were entitled. A demurrer by the company to the bill for want of equity was overruled: and it was held, that the remedy given by the 68th section of the Lands Clauses Consolidation Act, 1845 (8 Vict. c. 18), of proceeding at law by writ of mandamus or action did not oust the jurisdiction of a court of equity.

The onus of offering a price for the land required, and of taking the first step for summoning a jury under the above section of the act, is thrown upon the company-semble.

The plaintiffs were lessees of certain lands and premises called the Fairfield Works, at Stratford-le-Bow, Middlesex, upon which they carried on the business of engineers, carriage-builders and contractors, in partnership, under the title or firm of Adams & Co. On the 19th of July 1847, they received from the defendants notice of an intention to take part of the said lands and premises for the purposes of the railway; and on the 9th of August following they sent in a statement of the particulars of their claim for compensation. The company subsequently abandoned this

the plaintiffs, or the persons entitled to it, under the directions of the Court.

To this bill the company demurred generally for want of equity.

Mr. Wood and Mr. Bigg, in support of the demurrer, contended that the plaintiffs had not resorted to the remedy pointed out by the Lands Clauses Consolidation Act, 1845 (1), and therefore there was no ground for applying to a court of equity to decree specific performance of the alleged contract. The Court would refuse to interfere, where, from the nature of the case, as in the present instance, or in that of agreements for the purchase of stock, the damages must necessarily be commensurate with the injury sustained-Sugden's Vend. and Purch. vol. 1. p. 336, (10th edit.) The plaintiffs might have proceeded by writ of mandamus to compel the company to issue their warrant to the sheriff, a more expeditious and inexpensive mode than proceeding in a Court of Chancery. Originally that Court never gave relief, if the relief was identical at law. If a mandamus would not lie, the plaintiffs could not come into equity-Weale v. the Company of Proprietors of the West Middlesex Waterworks (2); and if no damages were recoverable at law, the bill would be dismissed-The Marquis of Normanby v. the Duke of Devonshire (3), Sugden's Vend. and Purch. vol. 1. p. 353. Again, the present bill had been mistakenly filed on the principle of Walker v. the Eastern Counties Railway Company (4). In that case the plaintiff was not in default; but here the plaintiffs had not sent to the company any statement of their claims after abandoning that of the 30th of November 1847. If the plaintiffs desired to have the question of compensation settled by a jury, the 68th section of the Lands Clauses Consolidation Act declared, that it should be lawful for them to give notice in writing of such desire to the promoters, stating such particulars as thereinbefore mentioned (viz. the nature of their interest in the lands in respect of which they claimed such compensation, and the amount of the compensation so claimed therein), and if the promoters, unless they paid or agreed to pay

(1) 8 Vict. c. 18. (2) 1 Jac. & W. 358. (3) 2 Freem. 216. (4) 6 Hare, 594.

the amount, did not duly issue their warrant to the sheriff to summon a jury, the amount of compensation so claimed might be recovered with costs by action in any of the superior courts. The words cited from the 68th section, "it shall be lawful," were permissive only; but it was incumbent upon those who sought equity to do it, and the plaintiffs ought to have made a claim. At present there was only a notice of their desire to have a jury summoned. The company, therefore, were not in default at the time when the bill was filed; and if every fact stated in it should be proved, the plaintiffs could not obtain a decree at the hearing without contravening the terms of the statute; and, consequently, the bill was demurrable.

The Solicitor General and Mr. J. H. Law, for the plaintiffs, insisted that the principle upon which this suit was instituted had been determined by the case of Walker v. the Eastern Counties Railway Company. The only question was, whether a contract to purchase the plaintiffs' land was not created by the notice from the company to take possession of it, and by their subsequent occupation of it. If the relation of vendor and vendee was created, a court of equity would carry the implied contract into execution by a decree for specific performance, just as a court of law would by mandamus. With respect to the objection that no claim had been made before requiring the company to procure a jury to be summoned, assuming that such claim was necessary, the only result would be that the cause must stand over for the plaintiffs to take the necessary steps before the hearing. But it was clear from the general scope of the statute that the onus or obligation of tendering a price was imposed upon the company. In every

instance the company must say they were willing to give a price. This was very

much like the case of Hutton v. the London and South-Western Railway Company (5). No power was given by the statute to any other persons than the promoters to cause a jury to be summoned, and no power to compel a landowner to state a price. The 38th section said that previously to the summoning of the jury by the promoters,

(5) Ante, p. 345.

the latter should give ten days' notice to the landowner, and should state what sum they were willing to give for the land required by them. The 68th section was not applicable to the present case; but even if it was, the terms of it were not compulsory on the party desiring a jury to be called, to fix the price. They cited

Beardmer v. the London and North-
Western Railway Company, 1 Hall &
Twells, 161.

The London and North Western Rail-
way Company v. Smith, 1 Mac. & G.

216.

Stone v. the Commercial Railway Company, 4 Myl. & Cr. 122. Mr. Wood replied.

Reference was also made during the argument to the following cases

Webb v. the Manchester and Leeds Railway Company, 4 Myl. & Cr. 116. Withy v. Cottle, 1 Sim. & S. 174; s. c. 1 Law J. Rep. Chanc. 117; affirmed, on appeal, Turn. & Russ. 79. Adderley v. Dixon, 1 Sim. & S. 607; s. c. 2 Law J. Rep. Chanc. 103.

May 5.-WIGRAM, V.C.-In this case the plaintiffs at the time of filing their bill were entitled to some leasehold property, which the defendants were desirous of taking for the purposes of their railway. Their right to take it was not in dispute, and on the 8th of November 1847 they gave the required notice of their intention to take that portion of the property which was the subject of the suit. A previous notice had been given of their intention to take a less portion than that comprised in the above notice; but, according to the statements in the bill, the second notice comprised all the land mentioned in the first, and something else. No question arose upon the pleadings as to the right of the company to abandon the first notice; and the plaintiffs must be understood to have admitted that the second notice, if it had been followed up, would have been valid.

After the second notice, the meeting of the 24th of February 1848 took place, and according to the statements of the bill an agreement was come to, under which the rights and interest of the plaintiffs, amongst

If the allega

others, were to be satisfied. tions in the bill were to be taken as true, it would appear that a private agreement was actually come to between the plaintiffs and the defendants, settling the terms upon which the company were to take the land. If the agreement could be considered to be in force, there could be very little doubt that the jurisdiction of the Court would attach; but, according to the allegations in the bill, although the plaintiffs insisted that the agreement was come to, they had determined to waive their right under it, and were contented, long before the bill was filed, to take the price of the land to be settled by a jury. In that state of things, it was the duty of the company to issue a warrant to the sheriff requiring him to summon a jury to ascertain the value of the land, or the price to be paid by the company to the plaintiffs. That step had not been taken. If the case had rested there, there could have been no doubt that it would have been within the authority of Walker v. the Eastern Counties Railway Company. But the parties went on with the treaty for some time, until the company, being desirous of taking immediate possession, caused a value to be put on the property by a surveyor, according to the terms of the statute they made the deposit and gave the bond thereby required, and thus became entitled to enter into possession, although the price had not been actually paid or ascertained. Some time elapsed, and the plaintiffs wrote to the defendants to issue their warrant to the sheriff to summon a jury to determine the price to be paid. The company said that the case was too simple to require that expense, and refused to be put to it. Thereupon the bill was filed. Two grounds of demurrer were raised by the company. The first was, the general one, that the Court had no jurisdiction; but that the proper remedy was by writ of mandamus. The second was founded upon the construction of the Lands Clauses Consolidation Act, and upon the state of the case at the time when the bill was filed.

Upon the second point, it was argued, that the plaintiffs were the parties upon whom the onus was cast of taking the first step towards ascertaining the price; and that at the time when the bill was