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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
and DORKING Railway Company.
(a) 5 De G. f Sm. 249.
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
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.
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
THE QUEEN'S BENCH,
The Judges who usually sat in Banc in this
Ex parte HERBERT, an articled clerk.
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.
THIS was a motion that the applicant might have leave to enrol his articles of clerkship, and that the
B. & s.
service thereunder should count from the 16th August,