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during parliamentary enquiry and the Company's treaty with the mortgagor and the laying down of the railway on the lands, the mortgagee kept his mortgage unknown, the Company ought to have time to inquire after notice of the claim ; that is, after production of the abstract of title. The claim may be unfounded or fraudulent, or it may involve claims of other parties. The necessity for time and caution is shewn by Doe d. Hyde v. The Mayor of Manchester (a), for there the Company had paid for the land in question to one proprietor, and had to pay for it again to Mr. Hyde, with all mesne profits and costs, as between attorney and client, because the arbitrator had made a mistake in the boundary between two properties. Here the questions of the validity of the deed, of its operation on five sixths of the land, of deducting what is due to the mortgagee from the compensation to be paid to the mortgagor, and of deducting for the right of the lessee if any should exist, must be considered before the compensation can be settled. If the possession of the Company is lawful for six months after the title is produced, or the dispute determined, all rights and liabilities would be secured in good order, and this defence would prevail. On the other hand, if ejectment lies for every claimant of an unknown interest before he shews the ground of his claim and allows time for considering it, confusion and disorder will be introduced : for the Com. pany will have to decide whether they will suffer judgment by default and hazard the stay of execution upon a conflict of affidavits, or defend the cause with all the risks and imputations brought upon the present defendants for so doing; and also if within six months compensation is made, any judgment that should have been obtained

1861.

JOLLY

WIMBLEDON

and DORKING Railway Company.

(a) 5 De G. f Sm. 249.

JOLLY

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would thereby become futile; and then no provision is 1861. made in respect of costs either to the claimant as between party and party or as between attorney and client, or to WIMBLEDON the Company, in respect of useless litigation which the

DORKING claimant chose to force them to; and all this for no

Railway

Company other purpose than securing some promptness in making compensation—about which litigation has probably increased if not created the delay.

In the case of The Marquis of Salisbury v. The Great Northern Railway Company (a), the title was shewn and disputed, and ejectment was brought to try the title, and it was doubted whether ejectment would lie for lands of which the possession was to be undisturbed ; but it was held to be by implication given in the case where the title should be disputed, solely for the purpose of trying the title, execution being stayed as soon as that purpose should be effected. If the title is disputed, the section may be held to give by implication a right to resort to law, and by limiting the right to the case of disputed title all would be in order; but if it is given where there is no dispute of title the confusion above described would follow.

This judgment does not conflict with any opinion of the Court below, who considered that the point here was within Lord Salisbury's Case ; but, as above mentioned, that case appears to us to have no application to the present, because the title there was disputed,- here it is not.

For these reasons we think the defendants are entitled to succeed and that the judgment of the Court below should be reversed.

Judgment reversed. (a) 5 C. B. N. S. 174.

1861.

MEMORANDA.

On the last day of Michaelmas Term, Mr. Justice Hill resigned his office as Judge of this Court, in consequence of ill health.

In the Vacation, John Mellor, Esq., one of her Majesty's Counsel, was appointed a Judge of this Court; having been previously advanced to the degree of the coif, when he gave rings, with the motto “Lex ratione probata.”

END OF MICHAELMAS VACATION.

ARGUED AND DETERMINED

IN

THE QUEEN'S BENCH,

IN

HILARY TERM,

XXV. VICTORIA.

The Judges who usually sat in Banc in this

Term were:
COCKBURN C. J. CROMPTON J.
WIGHTMAN J.

MELLOR J.

Ex parte HERBERT, an articled clerk.

Monday,

January 13th. The applicant had been articled as clerk to his father and served the

Attorney. five years required by law without the applicant's knowledge, as he alleged, Articles of that the articles were not stamped. The affidavit of the father stated clerkship. that, having before the articles been subject to much pecuniary loss and Omission to pressing expenses, and a diminution of professional income on account of

stamp. the changes in the law and personal and family affliction, he was at the 19 #20 Vict. time of the articles without the means to pay the stamp duty thereon; and that he had not articled the applicant speculatively, but with the intention of ultimately stamping and enrolling the articles. The Lords of the Treasury having, under stat. 19 & 20 Vict. c. 81. 8. 3., directed the Commissioners of Inland Revenue to stamp the articles upon payment of the duty and penalty, and the articles having been stamped accordingly: Held, by Cockburn C. J., Wightman and Mellor JJ., Crompton J. dissentiente, that they might be enrolled, and the service under them be computed from the date of their execution.

c. 81.

THIS was a motion that the applicant might have leave to enrol his articles of clerkship, and that the

B. & s.

VOL. I.

3 1

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service thereunder should count from the 16th August,
1856, being the day of their execution. The affidavit
of the applicant stated that, at the age of eighteen years,
he was, by articles of clerkship, dated the 16th August,
1856, articled to his father, an attorney at law, for five
years, which expired on the 16th August, 1861; that
he had served his father as his articled clerk during
the said term; that at the time of entering into the
articles he did not know that it was necessary that they
should be stamped before execution, or that it was
necessary that they should be enrolled; that when the
articles were executed they were kept by his father in
his own possession, and he never afterwards saw them
until last October, when his father gave them to him,
and he found that they had not been stamped, nor
enrolled; that he presented a memorial to the Lords
Commissioners of Her Majesty's Treasury praying that
the Commissioners of Inland Revenue might be per-
mitted to stamp the articles; and that their lordships
had been pleased to authorize the Commissioners to affix
the necessary stamp on payment of a penalty of 501., in
addition to the duty of 801. The affidavit of the father
of the applicant stated in substance that, having before
the applicant was articled to him been subject to much
pecuniary loss and various pressing expences, and a
diminution of professional income on account of the
changes in the law and personal and family affliction,
he was at the time of the articles wholly without the
means to pay the stamp duty thereon ; that the articles
were not duly stamped before their execution, nor
enrolled within six months from their date and execution
for these reasons, and because he thought that, under
stat. 19 & 20 Vict. c. 81., they could be afterwards
stamped on payment of the penalty mentioned in that

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