Highways, Turnpike. 687 roads, &c. 3 Geo. 4, c. 126. Appearing shall refuse to be sworn on the said jury, or being sworn shall efuse to give or shall not give their verdict, or in any other manner wil- and diverting his act, and on any of the persons who, being required to give evidence ally neglect their duty therein, contrary to the true intent and meaning of efore the said jury, shall, without sufficient excuse, refuse or neglect to ppear, or appearing shall refuse to be sworn and examined or to give making default, vidence, so aty, bailiff, or agent, nor more than 5%. on any other person, for one ffence." and witnesses on land purchased. By 7 & 8 Geo. IV. c. 24, s. 7, "If any lands, tenements, or heredita- Provision for paynents, which shall be purchased for the purposes of any act for making ment of mortgages nd in such case, the trustees shall, and they are hereby required to r maintaining turnpike roads, shall be in mortgage to any person, then, ay, or cause to be paid, to the mortgagee or mortgagees, his, her, or heir executors, administrators, or assigns, upon application in writing tade to the trustees or their clerk, signed by such mortgagee or mortgees, his, r the purchase of such lands, tenements, or hereditaments, or a comsums of money as shall be agreed for, ascertained, and determined, etent part thereof; and such sum or sums of money, when so paid, hall be, and be deemed to be, in discharge of the principal money, or art thereof, due on such mortgage or mortgages, and acknowledgment If the receipt thereof shall be made by indorsement on the mortgage eed or deeds, signed by such mortgagee or mortgagees, his, her, or or assigns, in the presence of one or heir executors, administrators, ore credible witness or witnesses; and such indorsement shall be and deemed to be a full and sufficient discharge to the trustees from the ortgagee or mortgagees, his, her, or their executors, administrators, or signs, and also a full and sufficient discharge to the mortgagor or Sortgagors, his, her, or their heirs, executors, administrators or assigns, ators, or assigns, for so much money as shall be expressed in such m the mortgagee or mortgagees, his, her, or their executors, adminisBy 3 Geo. IV. c. 126, s. 86, "Every sum of money or recompense to Money assessed for dorsement." agreed for or assessed as paid by trustees, thereto, or paid e hands of the said trustees or commissioners, or out of the tolls and tendered to aforesaid, shall be paid out of any monies in lands, &c., to be anted by the act for making and repairing such turnpike road, or out parties entitled es, or person or persons respectively entitled thereto, or to their agents, the monies to be borrowed on the credit thereof, to the party or par- into Bank (a), (a) If the company refuse to pay the fulfilled; that all formal preliminaries, m assessed, the Court of Queen's essential to the verdict, must be pre a ench will compel them to do so by sumed to have been fulfilled in default attingham Old Water Works, 6 Ad. jury having assessed a compensation to of affidavit to the contrary; that the E. 355; 1 Nev. & Per. 480, S. C.) e Court will not grant a andamus in the first instance; the otion must be for a rule nisi. peremptory (R. v. the applicant, without noticing the in- Dewsbury Turnpike Road, (Trustees), pensation for a larger interest than the Jurist, 26 B. C.) In the first of applicant really had, or had overlooked ese cases it was also held, that the any other person's interest; that if ale for a mandamus, were precluded quisition, &c., they must be levied as ompany, in shewing cause against the costs were recoverable at all for the infrom contending that the injury sustain prescribed by the act; that no maned by the applicant was not within the damus would lie for the payment, act under which the compensation was elaimed, or that all preliminaries ne though application had been made to a justice for a distress warrant, which he cessary to support a former mandamus, had refused; and that a mandamus mmanding them to issue their war would not lie for the costs of the former rant for a jury to assess the damages mandamus. ustained by the applicant, were not 7. Making and diverting roads, &c. 3 Gco. 4, c. 126. upon which the in trustees. After new road is completed, the old road may be sold. or into the Bank of England (a), in manner by this act directed, (as the case may be); and upon such payment to such parties or persons, or ther agents, or into the Bank of England, and after thirty days' notice there given to such parties or persons, or to their agents, or left at their respec tive usual places of abode, or with the tenant or tenants in possession of premises shall vest such lands, tenements, hereditaments, and premises, then such lands, tea ments, hereditaments, and premises respectively, shall be vested in sec trustees or commissioners, and shall and may be taken and used for the purposes of such act; and such lands, and the site of such lands, te ments, hereditaments, and premises, shall be laid into and made part of the road, in such manner as the said trustees or commissioners sha direct, and shall be repaired and kept in repair by such trustees or call missioners, by the same ways and means as any other part of the rea under their management is or ought to be kept in repair; and all par ties and persons whomsoever shall be divested of all right and title such lands, tenements, and hereditaments; and after such new re shall be completed, the lands or grounds constituting any former roais road, or so much and such part or parts thereof as in the judgment the said trustees or commissioners may thereby become useless or un cessary, or shall or may be stopped up and discontinued as pulle highways, (unless leading over some moor, heath, common, unu vated land or waste ground, or to some church, mill, village, town o place, lands, or tenements, to which such new road or roads doth not r do not immediately lead, and which may therefore be deemed proper, to be kept open, either as a public or private way or ways, for the of any inhabitant at large, or any individual or individuals), and be vested in, and shall and may be sold and conveyed (c) by the s trustees or commissioners, in the manner herein mentioned, for the be price that can be gotten for the same, and the money arising by suca sale shall be applied for the purposes of the act for repairing and m taining such turnpike road; and all conveyances, being executed the said trustees or commissioners, and inrolled in the office of the clerk of the peace for the county, city, or place wherein such road be situate, shall be good and effectual in the law to all intents and pr Sic. When old road leads to place, &c. does not, what to which new road be done. Purchase-money to be applied to purposes of act. Conveyances excuted by trustees, and enrolled with clerk of peace, to be valid (d). (a) This part of this provision is repealed, and a new one enacted, by 7 & 8 Geo. IV. c. 24, ss. 9, 10, 11, &c. See post, 689, 690. () This part of the clause does not take away the power to stop up a road leading to some church, &c. ; but authorizes the trustees to leave open roads of that description, when, in their discretion, they shall think fit. (De Beauvoir v. Welch, 7 B. & C. 266). It was observed in this case, that the trustees had "even the remarkable power of converting a public into a private way." (See Winter v. Churton, 3 Y. & J. 308, post, 694). (c) For the purpose of effecting the sale hereby directed, it seems that the legislature has expressly vested the soil and inheritance in the trustees, otherwise it would not so vest. (See Davison v. Gill, 1 East, 69, and observations, ante, 657, 511). (d) A canal company were empowered by statute (10 Geo. III. c. 114) to purchase lands, or to take from unwilling owners, upon making compen sation. The contracts, sales, re to be enrolled, with the peace for the county, at the expe the company; true copies to be dence in all courts. The lands were to be vested in the company, p payment or tender of the sums o tracted for or assessed as compensa —, a landowner, applied for a mar damus, requiring the company to c all contracts, &c., relating to athlands which had been taken by from his estate; alleging, that at a t trial between himself and the copany, it had been material for hin, a order to avail himself of privileges (02ferred by the statute, to prove that t company had taken lands from his e tate, and that he had incurred great es pense in procuring secondary evider for want of the enrolment of a contra which, he was informed and believed. had been made under the circumst in which enrolment was prescribed b the statute. It appearing that the com pany had been in undisturbed posses sion of the lands in question for IF. Highways, Turnpike. 689 7. Making roads, &c. old road, trustees poses whatsoever; or it shall be lawful for the said trustees or commissioners, instead of making such sale as aforesaid, to give up to the and diverting owners or proprietors of any adjoining lands, tenements, or hereditaments, whose building, land, or ground shall be had or taken for the of, and in exchange for the same, in such way and manner as such trus- Instead of selling purposes of this act, any part or parts of the present or old roads, in lieu 3 Geo. 4, c. 126. thes or may give it in ex By 7 & 8 Geo. IV. c. 24, s. 9, "If any money shall be agreed or road. chased, taken, or used by the trustees, which shall belong to any body when amounting lunatic, tenant for life of in tail, general or special, feoffee in trust, thereto is under politic, corporate guardian, committee, trustee, feme covert, or other incapacitated per- any incapacity. think fit (a).” change to owners of land for new of compensation the party entitled son, such monies shall, if the same amount to the sum of 2004., with all convenient speed, be paid into the Bank of England, in the name and with the privity of the accountant-general of the Court of Exchequer, o be placed to his account ex parte the trustees for executing such act, he reign of King George the Fourth, intituled, 'An Act for the better 1 Geo. 4, c. 35. suant to the method prescribed by an act passed in the first year of securing the monies and effects paid into the Court of Exchequer at Westminster, on account of the suitors of the said Court, and for the appointment of an accountant-general and two masters of the said Court, and for other purposes,' and the general orders of the said Court, and without fee or reward; and such money, when so paid in, shall be applied, unler the direction and with the approbation of the said Court, to be sigrofits of the said lands, tenements, or hereditaments, in the purchase ary way by the person who would have been entitled to the rents and f the land-tax, or the discharge of any debt or debts, or such other id affecting the same lands, tenements, or hereditaments, or affecting cumbrances, or part thereof, ther lands, tenements, or ents, which shall be so as the said Court shall authorize to be hereditaments, standing settled therewith to e same or the like uses, intents, or purposes; or where such money all not be so applied, then the same shall be laid out and invested, ader the direction and approbation of the said Court, in the purchase id settled to, for, and upon such and the like uses, trusts, intents, and other lands, tenements, or hereditaments, which shall be conveyed urposes, and in the same manner as the lands, tenements, or hereditaattled or limited, or such of them as at the time of making such coneyance and settlement shall be existing, undetermined, and capable of ade, the said money shall, by order of the said Court, upon applicaking effect; and in the mean time, and until such purchase shall be le purchase of three pounds per centum consolidated, or three pounds on thereto, be invested by the said accountant-general, in his name, in er centum reduced bank annuities; and in the mean time, and until purchased, taken, or used as aforesaid, stood re years, the court refused a manda cording to agreement:- it was held, 18. (R. v. Leeds and Liverpool that the public had acquired a complete anal Company, 11 Ad. & E. 316; 3 right in the new road, and the plaintiffs er. & D. 174, S. C.) (Where trustees under a turnpike et agreed with the plaintiffs to ex in the land given in exchange, though hange with them a portion of old road ante, 682, directing a conveyance to or land required to form a new road, the trustees where lands are purchased pursuant to the above 86th section; the by them, being held not to apply where de road having been completed, and order being made for stopping up acting in their own right. (Allnutt the vendors are persons sui juris and the old road as unnecessary, the trustees, by the same order, gave up the portion of old road to the plaintiffs, VOL. III. ac and Another v. Pott, 1 B. & Adol. 302; YY 7. Making the said bank annuities shall be ordered by the said Court to be sold ter and diverting the purposes aforesaid, the dividends and annual produce of the said roads, &c. consolidated or reduced bank annuities shall, from time to time, be paid, by order of the said Court, to the person who would, for the time being, have been entitled to the rents and profits of the said lands, ters ments, or hereditaments so purchased, in case such purchase or settle ment were made." 7 & 8 Geo. 4, c. 24. Application when under 2000, and above 201. When less than 201. Payment of money tisfactory, or Sect. 10. "If any money so agreed or awarded to be paid for any lands tenements, or hereditaments, purchased, taken, or used, and belonging to any person under any disability or incapacity as aforesaid, sha be less than the sum of 2007., and shall exceed the sum of 20., th and in all such cases, the same shall, at the option of the person for the time being entitled to the rents and profits of the lands, tenements, and hereditaments so purchased, taken, or used, or of his guardian or ga dians, committee or committees, in case of infancy, idiotey, or lunacy, to be signified in writing under their respective hands, be paid into the Bank of England, in the name and with the privity of the said accoud ant-general of the Court of Exchequer, and be placed to his account as aforesaid, in order to be applied in manner herein before directed; otherwise the same shall be paid, at the like option, to two trustees, ?? be nominated by the person or persons making such option, and approved of by the trustees taking such lands, tenements, or hereditaments, nomination and approbation to be signified in writing under the ha of the nominating and approving parties), in order that such princ.p money, and the dividends and interest arising thereon, may be appie in manner hereinbefore directed, so far as the case may be applica without obtaining or being required to obtain the direction or app? » bation of the said Court of Exchequer." Sect. 11. "Where such money so agreed or awarded to be paid herein before mentioned shall be less than the sum of 201., then, and all such cases, the same shall be applied to the use of the corporation person who would for the time being have been entitled to the rents a profits of the lands, tenements, or hereditaments so purchased, taken, used, in such manner as the trustees taking such lands, tenements, · hereditaments, shall think fit; or in case of infancy, idiotey, or, then to his guardian or guardians, committee or committees, to and for the use and benefit of such person so entitled respectively." Sect. 12. "In case the corporation or person to whom any sun where title not sa- of money shall be awarded, for the purchase of any lands, tenements or hereditaments, shall refuse to accept the same, or shall not be a to make a good title to the premises to the satisfaction of the truste owner not being found, &c. (a). (a) The Deptford Pier Company were authorized, by stat. 5 Will. IV. c. 13, to take lands for the purposes of the act, the compensation money to be assessed by a jury, on refusal by the proprietor to treat after notice; and in some other cases. If the company should not, within three years after the passing of the act, agree for, orcause to be valued and paid for, according to the act, the premises to be purchased, the powers given them were to cease, except with the consent of the owners and occupiers. Sect. 68 directed that, upon payment of the purchase-money assessed, either to the proprietor or, if he should not be able to make a good title," then into the Bank of England, in the manner and for the purposes specified in the act, it should be l for the company to enter, and the land should from thenceforth vest in the Sect. 80 empowered them to r lands purchased, but found unnecess The company gave notice of treat for lands in the possession of C. jury was summoned, and assessed purchase-money. C. offered to con and give possession, but was unable deduce a complete title, though be fered one which, as he contended, ough to be satisfactory. The company fused to complete the purchase. motion by C. for a mandamus to the to pay the purchase-money to C.. into the Bank:-Held, that an affidar by C., merely shewing, that he was in a situation to complete the title, or in case the person to whom such sum or sums of money shall be so Sect. 13. "Where any question shall arise touching the title of any Persons in possesporation or person to any money to be paid into the Bank of Eng- sion presumptively d, in the name and with the privity of the accountant-general of the rt of Exchequer, in pursuance of this act, for the purchase of any tenements, or hereditaments, or of any estate, right, or interest in lands, tenements, or hereditaments, or of any bank annuities, to be hased with any such money, or to the dividends or interest of any bank annuities, the person who shall have been in possession of lands, tenements, or hereditaments, at the time of such purchase, all persons claiming under such person, or under the possession of person, shall be deemed and taken to be lawfully entitled to such , tenements, or hereditaments, according to such possession, until sntrary shall be shewn to the satisfaction of the said Court of Exer; and the dividends or interest of the bank annuities to be purd with such money, and also the capital of such bank annuities, be paid, applied, and disposed of accordingly, unless it shall be appear to the said court that such possession was a wrongful pos, and that some other person was fawfully entitled to such lands, lents, or hereditaments, or to some estate or interest therein." 14. "Where, by reason of any disability or incapacity of the ration or person entitled to any lands, tenements, or hereditaments, archase-money for the same shall be required to be paid into the ourt, and to be applied in the purchase of other lands, tenements, editaments, to be settled to the like uses, it shall be lawful for the ourt to order the expenses of all purchases (a) from time to time ggested a payment into the Bank expense, was not sufficient for rit. The writ was afterwards don affidavit, shewing that C. deavoured to obtain a complete Fat could not. After the assessand during the dispute on title, tars from the passing of the act -Held, no ground for refusing (R. v. The Deptford Pier ny, 8 Ad. & E. 910; 1 Per. & 8, 8. C.) (a) It has been held, that, if by a railway act, the company are liable to the expenses of "all purchases to be made by virtue of the act, this will include the expenses of investing the money in the funds, previously to its being laid out in lands, to be settled to the like uses as the land purchased by the company. (Ex parte Bishop of Durham, re Newcastle and Carlisle Railway Act, 3 You. & C. 690). The Court may order reasonable expenses of purchases to be paid. |