in, any lands taken or used for the purposes of the railway, or injuriously affected by the construction thereof, full compensation for the value of the lands so taken or used, and for all damage sustained by such owners, occupiers and other parties by reason of the exercise, as regards such lands, of the powers by this or the Special Act or any Act incorporated therewith vested in the company; and, except where otherwise provided by this or the Special Act, the amount of such compensation shall be ascertained and determined in the manner provided by the said Lands Clauses Consolidation Act for determining questions of compensation with regard to lands purchased or taken under the provisions thereof; and all the provisions of the said last-mentioned Act shall be applicable to determining the amount of any such compensation, and to enforcing the payment or other satisfaction thereof." The SolicitorGeneral said that it was an extremely erroneous mode of construing an Act of Parliament to avail oneself of the sections of another Act; and no doubt that [62] would be so had not this section specially referred to the Lands Clauses Consolidation Act as that under which the compensation for lands used under the Railways Clauses Act should be ascertained. The 16th section of the latter Act gives power to construct railways by means of arches, which is the very manner described in the plans and books of reference of this company. A question arose on the former occasion whether or not this clause referred generally to the whole object of the railway, or only to certain special works connected with it; and it was one of the grounds of argument of the Solicitor-General on the former occasion that this section was only intended to apply to collateral works, because, amongst other things, tunnels are here pointed out; whereas, in the Special Acts, companies are prohibited from making tunnels except in the particular spot delineated in the plans and sections; and it was argued that, if this section conferred a general power of tunnelling, that would be inconsistent; and, therefore, this section gives no general power of making arches. But the answer is that the 16th section itself commences with the words "subject to the provisions and restrictions in this and the Special Act and any Act incorporated therewith." I have no doubt that this section applies to the general construction of the railway, and authorises companies to take or use lands for the purpose of throwing archways over them; and that such lands are to be compensated for under the provisions of the Lands Clauses Consolidation Act.

Then, it is said, may not this section apply to the temporary user? There are several sections by which companies are empowered to make such user; but the 84th section of the Lands Clauses Act expressly directs that "the promoters of any undertaking shall not, except by consent of the owners and occupiers, enter upon any lands which shall be required to be purchased or permanently used for the purposes and under the powers of this or the Special Act, until they shall either [63] have paid to every party having any interest in such lands, or deposited in the bank in manner herein mentioned, the purchase-money or compensation agreed or awarded to be paid to such parties."

Therefore the Legislature contemplated, first, that parties whose lands were used under the Railways Clauses Act or the Special Act were to be compensated according to the provisions of the Lands Clauses Act; and next, that it might happen to be not a temporary but a permanent user. Temporary user, under other sections, was to be upon different conditions; but permanent user was to be compensated for in manner provided in the case of taking land. Accordingly, upon reading the two Acts together, it is plain, although the words in some parts are ambiguous, that the Legislature contemplated a permanent user, and provided compensation for it under the Lands Clauses Act, before such user should take place.

I must then advert in this case to the Special Act, which refers to the Lands Clauses and Railways Clauses Acts, and declares, as it is stated in the bill, "that the Lands Clauses Act, and so much of the Railways Clauses Act as relates to the construction and working of railways, to the temporary use of lands during the construction of railways, to the taking of lands for additional stations, to the mode of crossing of roads and construction of bridges, and to the construction of arches, culverts and works for the protection and accommodation of lands adjoining the railways should respectively, except so far as the same might by this Act be otherwise provided for, and except such of the provisions thereof as might be inconsistent with the provisions

herein contained, be incorporated with and form part of the said Act; and that the purchase and taking of land, and the construction, working and use of the works thereby authorised, should be subject only to the provisions, regulations and restrictions of the said Lands Clauses Consolidation Act, and Railways [64] Clauses Consolidation Act." And by section 3 of the same Act it was enacted that "it should be lawful for the company to widen the said railway on the line and upon the lands delineated on the said plans and described in the said books of reference, and to enter upon, take and use such of the said lands as should be necessary for such purpose." This Act was continued by two subsequent Acts, which I need not further state. By the latter it was provided that "the justices, arbitrators, umpires or juries, respectively, as the case might be, who, under the provisions of the said two former Acts or this Act, should award or assess the compensation to be made by the company to the owners or occupiers of or other persons interested in any of the lands which should be taken or used for the purposes of the widening of the railway;" plainly, therefore, assuming that the operation of the two former Acts, together with this Act, was that there would be a jury, arbitrators or an umpire to ascertain the compensation for lands taken or used for the purposes of these Acts. In that state of circumstances, the notice here, which states expressly that the company intended to widen the railway, and permanently to maintain the railway, strikes me as amounting to a distinct and plain notice to use this land in a manner in which they were at liberty to use it; and I think that it could not have been better worded to claim a permanent user than by informing the Plaintiffs that they intended to throw an archway over the Plaintiffs' laud, and by that means for ever to maintain the railway over the land so taken. Therefore, I am of opinion that the original notice was a perfectly legal notice, and that the company, under that notice, acquired power to take under their compulsory powers the easement or right of permanent user, which they gave notice that they required.

Then, what was the effect of the counter notice of the Plaintiffs? It is not clear, but I will assume that this counter notice would not amount to a waiver of any legal right which they [65] might possess, and it might well be competent for them, notwithstanding their counter notice, to dispute the legality of the original notice. I have decided that the original notice was legal at the time when the counter notice was served. It appears from the authorities of The Marquis of Salisbury v. The Great Northern Railway Company (7 Railw. Cas. 175) and Sparrow v. The Oxford, Worcester and Wolverhampton Railway Company (2 De G. Mac. & G. 94) that, when the original notice was given, the company from that time acquired a right to exercise their compulsory powers; and all that was to be done by them might then lawfully be done, even after the expiration of the time limited for the exercise of those compulsory powers, the rest being mere machinery to enable the company to obtain a verdict, and that the company are able, and indeed are bound, so to carry into effect their original notice.

The counter notice was given under the provisions of the 92d section of the Lands Clauses Act, which is in terms "that no party shall at any time be required to sell or convey to the promoters of the undertaking a part only of any house or other building or manufactory, if such party be willing and able to sell the whole thereof."

On the previous occasion the injunction was granted on the footing that, when once a company give notice that they require a permanent user of any part of a landowner's property, that must be taken to be such a purchase on the part of the company who gave the notice as to entitle the landowner to say, "You have taken part of what is my manufactory.' For it was almost conceded in argument that, in the case of a company carrying their railway across a rope-walk, for instance, so as to produce an inconvenience, they could not maintain that they would not, in such a case, [66] be taking a part of that manufactory. So, in every intermediate case that might be put between that and the case of making a tunnel a thousand feet beneath the surface each case must rest on its own merits. It would indeed be difficult, having regard to the Acts of Parliament authorising railways to be made by means of tunnels under large towns, to hold that the company would be obliged to take all the superincumbent houses or manufactories. Here, however, there is a clear interference with the Plaintiff's property; and therefore I was of opinion that they were bound, when

called upon, to take the whole of the property, and accordingly I granted the injunction on the former occasion.

The effect of the 92d section of the Lands Clauses Act is simply this: in one sense it is an arresting of the powers of the railway company, that is, it interposes an obstacle to their compulsory powers of taking land; but the landowner can only take advantage of this section upon the terms of his being willing and able to convey the whole of the premises, part of which the company are proposing to take; and, therefore, it would be a contradiction in terms for the Plaintiffs to say, "We have interposed such an obstacle as to prevent altogether the operation of the original notice by which you acquired the right to take the land;" for that would mean that the Plaintiffs were not willing that the company should take the premises they were compulsorily taking from the Plaintiffs, while, in truth, the only right which the Plaintiffs have of arresting the compulsory powers is upon the express condition that they are willing to part with the whole of the property; and it seems not only contrary to any equitable view of the rights of the parties, but plainly contrary to the actual provisions of the statute, to hold that the notice was determined by the counter notice, but the real view is simply that it was suspended until it should be ascertained whether or not the railway company were willing to take the whole of the manufactory. Accord-[67]-ing to the case of The Queen v. The London and North-Western Railway Company (12 Q. B. 785) the company are not bound to accept the proposition made in the counter notice, and during the suspension it is competent for the landowner either to insist upon the counter notice or to withdraw it, in which latter case the original notice would remain in force. To say that the original notice is gone is a confusion of terms, inasmuch as the condition on which the Plaintiffs obtained the liberty of arresting the company's right by the counter notice was only that they were willing and able to sell the whole of the manufactory. The moment they cease to be willing to do this the obstacle is withdrawn, because it only existed upon those terms.

Then the Solicitor-General argued that these Acts have always proceeded, in truth, upon the ground of reciprocity of contract between the parties when the notice and counter notice are served; and Courts of Equity have held that when once a company, invested with these large powers, give notice of their intention to take land, a contract is implied, and the party to whom the notice was given has a right to say, "That notice cannot be recalled, I insist upon its full performance." It was a good deal discussed in Adams v. The London and Blackwall Railway Company (2 Mac. & G. 118) how far that view of there being such a contract ought to be taken in these cases, and it was carried to its extreme limits in that case, where a bill for specific performance was allowed by Vice-Chancellor Wigram to be filed upon such a notice. Lord Cottenham did not altogether approve of that view of the case, but it seemed to him that the position of the parties was that the company, having given this notice, were not at liberty to withdraw, and that the Act is peremptory and obliges the company to follow up their notice by summoning a jury and taking all the consequent steps, and, as the Lord Justice Turner said in Sparrow v. The Oxford, [68] Worcester and Wolverhampton Railway Company (2 De G. Mac. & G. 94), that may be enforced by mandamus. I do not think at present that it can be considered decided that this liability can be enforced by a suit for specific performance. However that may be, the Court has held that it is not right that a company having given this notice should be allowed to withdraw, and to say, "We will bind those on whom the notice is served, and will not ourselves be bound."

But the Solicitor-General argued, if the Plaintiffs served the counter notice, and the company were not bound, in consequence of the Plaintiffs having in this manner arrested the original notice, then, if the company are not bound, the Plaintiffs are also free, if they choose to withdraw the counter notice, before the company have accepted that counter notice. I do not follow that reasoning further, but say that the Plaintiffs had not completely and effectually stopped the original notice, because it was a condition of arresting that notice that the Plaintiffs should be willing and able to convey to the company the whole of the manufactory. If they withdraw from that the original notice would revive, and the company would be at liberty to proceed If the case stood merely thus the position of the parties would have been that the Plaintiffs would have been entitled to say, "We will withdraw our counter

notice and prevent the company from summoning a jury to assess the value of the whole property," leaving the original notice and costs to be dealt with as the Court might think fit.

case.

I will, thirdly, proceed to observe upon the alleged delay of the company in this It is alleged that the company, by taking no steps upon the original notice or the counter notice from August 1853 to May 1854, must be held to have abandoned such right as they had by virtue of the original notice. [69] But I apprehend that this cannot be so; the company could not be bound to follow up their notice until some steps were taken to call upon or compel them to do so. They might be forced by mandamus to issue a summons for a jury, but until some such step was taken there is no authority to say that a company, having given notice to treat, and never having withdrawn it, are not in a position to enforce this notice at any time, until they are called upon to enforce it or to withdraw it. Therefore, I consider that the question is not affected by such delay. But then it was said by the Plaintiffs that they had served the company with this counter notice, which was not accepted or declined until May 1854, when the company served the Plaintiffs with a notice which amounted to a waiver of the offer contained in the counter notice, and that the time to proceed upon the original notice had expired. I apprehend, however, that the legal rights conferred on the company by the Act cannot be lost by that species of acquiescence. The answer would be that there was a limit of three years for the construction of the works, and, having given the counter notice, the Plaintiffs had their remedy by mandamus or by a bill, as in King v. King (1 M. & K. 442), complaining that the Plaintiffs ought not to be kept in suspense, but had a right to know whether the company intended to take or abandon the lands, and calling upon the company either to take or abandon them accordingly. In King v. King (Ibid.), the Plaintiff having sold lands the title to which was defective, the purchaser, who had taken possession under the contract, would neither accept nor abandon his purchase, and the bill was filed to make him determine which he would do, either accept the title, such as the vendor could give, or abandon the contract; and that bill was sustained.

Then, lastly, is it to be said that the company had rejected the counter notice? It would be very difficult to hold that, in a state of circumstances, many of which raise questions which [70] have to be decided, and which the company have a right to put in a train of investigation. They deny that they require to take a part of the manufactory, and therefore they claim to have that question determined. That is not an abandonment of their original powers, on the contrary, it is an assertion of those powers. The only compulsory power they have is to put the matter in train to have it properly tried.

I have now further to consider the effect of the proceedings in the former suit. The order made in that suit was that the injunction should be continued "until the company should have purchased the whole of the Plaintiffs' manufactory, the Plaintiffs undertaking to sell the whole of the said manufactory, and to make a good title thereto."

First, it is argued that this order left the company open and free while the Plaintiffs were bound; but the reason of that was that the Plaintiffs came to the Court to ask for an injunction, and I thought, and am still of opinion, that their only mode of arresting the powers of the company was by shewing themselves to be willing and able to sell; and, unless they were so willing, I was not at liberty to arrest the powers of the company, and therefore the Plaintiffs could only have the injunction upon those terms. In Sparrow v. The Oxford, Worcester and Wolverhampton Railway Company (2 De G. Mac. & G. 94) the Court considered that there was an option, and gave three months. I did not think that to be necessary in this case, because I was only hearing an interlocutory motion, whereas, in Sparrow's case, it was the hearing of the cause. The company have since acted in perfectly good faith. They took a few days after that order for consideration, and on the 10th of August served a notice that they elected to take the whole of the Plaintiffs' manufactory, which, not only by their counter notice, but by their undertaking given [71] as the condition of the injunction, the Plaintiffs had asserted that they were perfectly willing to sell. This is the notice which I am now asked to restrain the company from carrying into effect. Having come to the conclusion that, when the second notice of the company was served, I was bound to interpose only upon the terms of the undertaking which I have mentioned being given by the Plaintiffs, and the

Plaintiffs being now under those terms, even conceding that they had not, by the counter notice, waived any legal right which they may have had, I think that it is now too late to ask me to restrain the company from proceeding to adopt the counter notice, and to carry into effect the offer thereby made.

There is a minor point to be considered. It was suggested that the company have exhausted their powers by their first notice to the sheriff to summon a jury, because the Lands Clauses Act, by section 21, provides that a company giving such notice must go on within twenty-one days. But the answer to that is that the Plaintiffs prevented it by the injunction, upon grounds which I thought perfectly valid, but stating at the same time their willingness to sell the whole of the property; and, therefore, I think that the powers of the Act do still apply, and the company were at liberty to give a new notice to summon a jury, and it was the proper course to withdraw the former notice and to give a fresh notice, as the company have done, by which they ask that the value of the whole of the property should be now ascertained. It is unfortunate that, instead of acquiescing in the terms of the first order, the Plaintiffs should have now taken a course which is not very fair towards the company. I do not say that the undertaking of the Plaintiffs has added anything to the legal rights of the company, but it makes the present a rather extraordinary proceeding on the part of the Plaintiffs.

[72] Under all the circumstances of this case, I have come to the conclusion that this injunction ought to be dissolved.

Dec. 7. Affirmed by the Lord Chancellor and Lord Justices, on the ground that the Plaintiffs were bound by their offer in the counter notice; the Lord Chancellor, however, intimating a doubt whether the original notice to treat was valid, and whether it was taking part of the manufactory within sect. 92 of the Lands Clauses Consolidation Act, 1845.

Production of Documents. Plea. Replication. 15 & 16 Vict. c. 86, s. 18.

Where a plea of the Statute of Limitations was pleaded to a bill for redemption against a mortgagee in possession, and the bill stated that interest had been paid within twenty years, but contained no charge of documents, and the Plaintiff had filed a replication: Held, that the Plaintiff might, nevertheless, compel production of documents by the Defendants, for the purpose of obtaining evidence upon the issue tendered by the bill, as to payment of interest within twenty years.

The

This was a suit for redemption against a mortgagee in possession. The bill stated that interest had been paid on the mortgage up to a period which was within twenty years before the filing of the bill. The bill contained no charge as to documents. Defendant put in a plea of the Statute of Limitations, but did not accompany his plea with an answer. The Plaintiff filed a replication, and now moved for the production of documents under the 18th section of the 15 & 16 Vict. c. 86.

Mr. Ward for the motion, said that the discovery was material to the issues raised by the bill and plea; and it was not necessary to charge in the bill that the Defendant had relevant documents in his possession: Perry v. Turpin (Kay, App. p. xlix.).

Mr. W. D. Lewis, contrà, said that the plea was to the whole bill; and, therefore, if the bill had contained the usual charge of documents, the plea would have gone also to that; and it was too late now to move for production of documents.

[73] THE VICE-CHANCELLOR Sir W. PAGE WOOD. I think that the Plaintiff is entitled to the production which she seeks. The 18th section of the 15 & 16 Vict. c. 86, clearly contemplates that there may be a motion for production, although no answer to the bill is required. The meaning of that section is that, if, as is often the case, the Plaintiff does not require any answer except as to documents, he need not ask for an