1847. LANGHAM v. GREAT NORTHERN RAILWAY Co. pany, together with interest thereon, after the rate of £5 per cent. per annum, from the time of entering on such lands until such purchase or compensation-money shall be paid or deposited as aforesaid, then the above bond or obligation shall be void; but, otherwise, shall remain in full force and virtue." There was indorsed on the bond a copy of a receipt, dated the 14th of July, and purporting to be signed on behalf of the Governor and Company of the Bank of England, by their cashier, stating that the Great Northern Railway Company had paid into the Bank the sum of £3300, which had been placed to the credit of the AccountantGeneral of the Court of Chancery, ex parte the Great Northern Railway Company, the account of James George Langham, Samuel Frederick Langham, John Mackie Langham, William Mansfield, and George Wagstaff, devisees in trust under the will of William Langham, deceased. The plaintiffs thereupon instituted the present suit against the Company, their secretary, and the cestuis que trustent, under Mr. William Langham's, jun., will, and by their bill disputed the validity of the bond, on the grounds that, according to the true intent and meaning of the Lands Clauses Consolidation Act, 1845, the surveyor to be appointed by the justices for the purposes of the 85th section of such act ought to be a person not pledged by any opinion before given by him to either party of the value of the property to be valued, and that he ought to be a person quite indifferent, and without fear or favour of or to either side; and further, that the sureties in the bond ought to be persons each of them possessed of property at least of an equal amount to that of the penal sum mentioned in the bond, over and above the amount of all their debts and liabilities; and further, that the obligees in such bond ought to have each of them an opportunity of attending before the justices, and of offering before them all reasonable objections which such obligees may respectively have to the proposed surveyor, and to the proposed sureties, and of calling on the justices to hear and determine such objections; and that, more especially as respected the sureties, the obligees ought respectively to have an opportunity of requiring the justices to approve of sufficient sureties in case the parties differed about the same; and that the plaintiffs and the Company would have differed about the persons who were sureties in the bond that Mr. G. Smith, when he was appointed by the justices to value plaintiffs' property, was and stood pledged by an opinion which he had before given as to the value of plaintiffs' property, and that he had, in fact, previously to his appointment, been employed by the Company to furnish them with a valuation of plaintiffs' property; and that his valuation mentioned in the bond was a mere echo of the opinion which he had formerly given on the subject in consequence of such employment, and not one formed after his appointment; and that he did not, after his appointment, make any fresh or further survey or valuation of the plaintiffs' property, for the purpose of which he had been appointed that he was not a person indifferent and without fear or favour of or to the Company; and, as evidence thereof, the bill charged that he was an officer of the Company, being the person, or one of the persons, regularly employed by them to make surveys and valuations of property required by the Company for the purposes of their railway; and that he was in the receipt and expectation of a large salary, or large sums of money, from the Company, for surveys and valuations which he was so employed to make for them; and that, in fact, he was a dependant on the Company: that, as respected the sureties, they had each of them entered into, for the Company and otherwise, a great number of bonds similar to that delivered to the plaintiffs, and also into a great number of engagements and liabilities for the Company and otherwise, and that the total of such bonds, engagements, and liabilities so entered into by them amounted to much more than the whole of the property of either of them. The bill further charged, that an embankment such as 1847. LANGHAM v. GREAT NORTHERN RAILWAY Co. 1847. LANGHAM v. GREAT NORTHERN RAILWAY Co. was contemplated as aforesaid, and the necessary works connected therewith, would so utterly destroy and disfigure the property, and change its nature and character, as that it would prevent entirely the jury from forming any just estimate of its value, and that it was absolutely necessary, for doing justice between the parties, that the jury should have had the opportunity of viewing plaintiffs' property in its present state; and that, if the Company were permitted to take possession of the property, and to carry on their embankment and works on it before the jury should have viewed the property, although the form of assessment by a jury might be gone through, yet that in substance and truth plaintiffs would be deprived of the benefit of having the amount to be paid for the property ascertained by the jury, according to the spirit, true intent, and meaning of the Lands Clauses Consolidation Act, 1845, and the Company would get possession of plaintiffs' property at much less than its real value. The prayer was, that the defendants, the Company, and their secretary, their respective engineers, officers, agents, servants, and workmen, might be respectively restrained by injunction from entering upon or taking possession of, and from interfering with, and from continuing in possession, and from causing or procuring plaintiffs, or any or either of them, to be kept out, or removed from, or disturbed in their or either of their peaceable and quiet possession of the thereinbefore particularly mentioned messuages, lands, and hereditaments, or any of them, or any part thereof; and also from pulling down, damaging, defacing, destroying, or injuring, and from causing and procuring, or permitting or suffering to be pulled down, defaced, destroyed, or injured, any of the messuages or buildings standing on the lands and hereditaments, or any of them, or any part thereof; and also from making, or causing and procuring to be made, or to remain or continue on the lands and hereditaments, or any part thereof, any embankment, excavation, or other works, or any materials, under or by virtue of, or under colour of the bond, dated the 14th day of July, 1847, or of any proceeding grounded thereon; and the bill prayed in the alternative an injunction to restrain the Company from committing any waste, spoil, or destruction in, over, or upon the messuages, lands, and hereditaments, or any part thereof, which would, could, or might interfere with or prevent a jury, summoned according to the provisions of the Lands Clauses Consolidation Act, 1845, from determining and settling, as contemplated by such act, the amount to be paid to plaintiffs respectively for their messuages, lands, and hereditaments, and plaintiffs' respective estates, rights, and interests therein. Mr. Bacon and Mr. Pole now moved, ex parte, on behalf of the plaintiffs, for an injunction in the terms of the prayer of the bill. Mr. Wigram and Mr. Denison appeared on behalf of the Company, and objected that the Company had been served with a subpoena; and that, under such circumstances, it was irregular to move ex parte. They cited Perry v. Weller (a). The VICE-CHANCELLOR held, that the motion could not be made ex parte. It was then arranged that the motion should proceed; and it was heard upon the affidavit of the plaintiff, Samuel Frederick Langham, which was an echo of the bill, no evidence being adduced on behalf of the defendants in opposition to the motion. Mr. Bacon and Mr. Pole, for the plaintiffs.-The Company proposed, at first, to call out a jury; and now they endeavour to avail themselves of a clause in the Lands Clauses Consolidation Act, to take possession before the verdict is (a) 3 Russ. 519. 1847. LANGHAM v. GREAT NORTHERN RAILWAY Co. 1847. LANGHAM obtained. They have, however, not complied with the provisions of the act; and if they had, still we contend that, under the circumstances, they would be held to have used its proNORTHERN Visions inequitably. In the first place, there has been no v. GREAT RAILWAY Co. valid approval of the sureties by the justices; because the plaintiffs have had no opportunity of attending and urging such objections as they had to make to them. [Mr. Wigram referred to Bridges v. Wilts, Somerset, and Weymouth Railway Company (a).] The statute provides that the justices shall approve of the sureties if the parties differ. How can they differ if only one party appears? In the next place, the Company had notice of the state of the title, and that three of the plaintiffs were competent to contract, and the others not; and yet they give a joint bond, and pay the money to a joint account. That cannot be a proper fulfilment of the requirements of the act. Again, the amount for which the bond is given is insufficient, for a valuation by a surveyor, who had valued the land already, as the officer of the Company, being a mere repetition of his former statement, cannot be a fair compliance with the statute. Also, the form of the bond is not according to the act, the condition being not for immediate payment, but for payment on demand only. But if the requisites of the act were literally complied with, the Court would not permit a company to avail themselves of the statutory powers inequitably. Now, in this case, the Company induced the plaintiffs to believe that they were about to summon a jury, and not to avail themselves of the summary proceeding by delivery of a bond. On the 8th of June they offered to refer the question to a special jury. On the 22nd of June the plaintiffs inquired when the Company intended to summon a jury; and they replied, they intended to do so in a few days, but could not specify the exact time. The plaintiffs relied upon this; and although they had the means of compelling the Company, by manda (a) 4 Railw. Cas. 623. |