Sec. 8 Incorporates the L. C. C. Acts with respect to the purchase

and taking of lands otherwise than by agreement, and sub

ject to the provisions of the Act.

Sec. 176 Incorporates the L. C. C. Acts, "except the provisions relating to access to the Special Act, and except section 127 of the L. C. C. Act, 1845," and subject to the provisions in the Act contained.

Sec. 3 Incorporates the L. C. C. Acts except the provisions relating to access to the Special Act and subject to the provisions of the Act.

Sec. 12 Incorporates the L. C. C. Acts, except the enactments with respect to the purchase and taking of land otherwise than by agreement and entry on lands.

Sec. 107 Extends the provision of the L. C. C. Acts relating to the purchase of land by agreement to all purchases of land under that section.

s. 6.

Purchase of Lands by Agreement.

Power to purchase lands by agreement.

AND WITH RESPECT TO THE PURCHASE OF LANDS BY AGREEMENT, be it enacted as follows:

VI. Subject to the provisions of this and the Special Act, it shall be lawful for the promoters of the undertaking to agree (a) with the owners of any lands by the Special Act authorized to be taken, and which shall be required for the purposes of such Act, and with all parties having any estate or interest in such lands or by this or the Special Act enabled to sell and convey the same, for the absolute purchase, for a consideration in money (b) of (a) Form 1.

(b) Sec. 10: 23 & 24 Vict. c. 106, ss. 1-5.

any such lands, or such parts thereof as they shall
think proper, and of all estates and interests in such
lands of what kind soever.

It will be seen on analysing this section that agree-
ments under the Act are subject to the following con-
ditions:-
:-

1. The agreement is "subject to the provisions of this and the Special Act."

2. The lands comprised in the agreement must be "by the Special Act authorized to be taken.”

3. Such lands must be "required for the purposes of such Act."

4. The agreement must be "for the absolute purchase of the lands."

5. There must be a "consideration in money." But as to this, see notes to sec. 10, post, p 28.

As these provisions clearly apply only to agreements entered into after the passing of the Special Act, it is not proposed to enter into any discussion regarding the law applicable to contracts made by the promoters before the passing of the Special Acts. See as to the latter, Hodges on Railways, 6th ed. pp. 139 et seq., and Caledonian Ry. Co. v. Walker's Trustees, 7 App. Cas. 259.

The mode of entering into contracts by joint stock companies is provided for by section 97 of the Companies C. C. Act, 1845; and in general such contracts under this sec. of the L. C. C. Act are governed by the same rules as apply in cases of similar contracts independently of the L. C. C. Act. Walker v. E. Counties Ry. Co. 6 Ha. 600. For the purposes of this work, therefore, it will suffice to point out in what particulars agreements under the statute differ from ordinary agreements of a similar nature, and to what extent they are taken out of the general rules of law. It is unnecessary to follow the cases into the general law of contract, and we will cite only such as turn specially upon the Act.

An agreement entered into by the promoters before they have obtained their Act is binding upon the company, Edwards v. Grand Junction Ry. Co., 1 My. & Cr. 650, if such agreement is one which it would be competent for the directors of the company to make upon the passing of their

8 Vict.

c. 18,

s. 6.

8 Vict. c. 18, S. 6.

Act: E. Counties Ry. Co. v. Hawkes, 5 H. L. C. 331. But see
Preston v. Liverpool, etc., Ry. Co., ibid. 605.

The nature of agreements under the Act was fully discussed in Taylor v. Chichester and Midhurst Ry. Co., L. R. 4 H. L. 628, from which the following general principles are to be deduced. An agreement made by a company under its seal before the passing of a special Act, and framed partly on the consideration of the property agreed to be sold, and partly in consideration of the withdrawal of opposition to the Bill, is a valid agreement. The true effect of such an agreement is entirely as if the agreement had been entered into the day after the Act passed (at pp. 640 and 645). But such an agreement may go further than an agreement made after the passing of the Act, for it may comprise land not absolutely "required for the purposes of the Act," being an absolute agreement to take certain lands at a certain price. The agreement may stipulate for the payment of the consideration within a given time after the passing of the Act (e.g. three months, as in the above case, or eighteen months, as in E. Counties Ry. Co. v. Hawkes, 5 H. L. C. 331), the length of time making no difference in the matter. An agreement of the nature above mentioned can be entered into by the tenant for life; and as between the persons interested in the land and the company is not affected by section 73, which only regulates the respective rights of the tenant for life and remaindermen. The agreement may in terms be made conditional upon a given precedent condition being performed-e.g. compelling them to make a railway, or providing the railway shall be required for the purposes of the Act; but there is nothing in the Act to prevent a company from entering into an agreement which is unfettered by any condition (at p. 646). "The landowner is empowered and the directors are empowered to enter into a private agreement without resorting to compulsory purchase. No time is stipulated for the making of that agreement. It is not incumbent on the directors to wait and see what they may require when their line reaches a particular point of the lands of the individual with whom they have to deal ; but they are at perfect liberty by the Act of Parliament to anticipate the making up of the line, and to enter into the agreements accordingly, so long as the agreements affect a matter which comes clearly within the scope of their powers,

and the lands are property which they are clearly empowered and authorised to take for the purposes of the railway" (at p. 647).

If any step be taken after the passing of the Act in conformity with the provisions of the L. C. C. Act, and relating exclusively to compulsory purchases, e.g. if a notice to treat is served as in Kemp v. S. E. Ry. Co., L. R. 7 Ch. 364, or if the company proceed to enter into possession under sec. 85, as in Bedford and Cambridge Ry. Co. v. Stanley, 2 J. & H. 746, all the compulsory powers of the Act are brought into operation, and the claimant is entitled to treat an agreement entered into before the passing of the Special Act as abandoned by the promoters.

See as to the extent to which the Court will interfere to compel the specific performance of contracts made exclusively under Acts of Parliament, containing special provisions for that purpose, Inge v. Birmingham, etc. Ry. Co., 3 De G. M. & G. 658; L. and S. W. Ry. Co. v. Bridger, 10 Jur. (N.S.) 650, and as to the effect on a pending suit for specific performance of an Act restraining such suits without the leave of the Court, Griffith v. Cambrian Ry. Co., 17 W. R. 979.

The contract for purchase must be completed by the company within a reasonable time, just as any other contract, and its completion cannot be deferred to the date fixed by the Act for the exercise of the power to take lands: Baker v. Metr. Ry. Co., 31 Beav. 504.

Where an owner dies after entering into but before completing an agreement for sale to a company, and leaves an infant devisee, the latter will be declared a trustee of the property within the Trustee Act, 1850: In re Lowry's Will, L. R. 15 Eq. 78.

See section 84, post, p. 188, as to injunctions restraining promoters from entering upon lands before payment of the agreed purchase money. See also Cosens v. Bognor Ry. Co., L. R. 1 Ch. 594; Pell v. Northampton and Banbury Ry. Co., L. R. 2 Ch. 100.

Until the purchase money has been paid in full, the vendor has a lien on the land, and will receive the same assistance from the Court in enforcing such lien as any other unpaid vendor: Walker v. Ware, etc., Ry. Co. L. R., 1 Eq. 195, approved of in Wing v. Tottenham and Hampstead J. By. Co., L. R. 3 Ch. 740; e.g. he can have an injunction

с

8 Viot. 0. 18.

8. 6.

8 Vict.

c. 18, 8. 6.

restraining the use of the lands if the money is not paid within a limited time: Cosens v. Bognor Ry. Co., L. R. 1 Ch. 594; but see Munns v. Isle of Wight Ry. Co., L. R. 5 Ch. 414; Lycett v. Stafford and Uttoxeter Ry. Co., L. R. 13 Eq. 260; or he can have a sale: Earl of Jersey v. S. Wales Mineral Ry. Co., 19 L. T. (N.S.) 446; Raper v. Crystal Palace, etc. Ry. Co., 16 W. R. 413; Sedgwick v. Watford, etc. Ry. Co., 36 L. J. Ch. 379; Williams v. Gt. E. Ry. Co., 16 W. R. 821, or he can have a receiver: Bishop of Winchester v. Mid Hants Ry. Co., L. R. 5 Eq. 17; Munns v. Isle of Wight Ry. Co., supra. This right is not defeated by entry into possession under sec. 85, Walker v. Ware, etc. Ry. Co., supra, or by the fact that the railway is actually made and ready for traffic, Wing v. Tottenham, etc. Ry. Co., supra, or by running powers having been granted by Parliament to a company other than the one which took the land, Marling v. Stonehouse, etc. Ry. Co., 38 L. J. Ch. 306; E. of St. Germans v. Crystal Palace, etc. Ry. Co., L. R. 11 Eq. 568, or by the fact of a receiver having been appointed on the application of holders of mortgage debentures suing on behalf of themselves, and all other the mortgagees of the undertaking: Drax v. Somerset and Dorset Ry. Co., 38 L. J. Ch. 232; Bishop of Winchester v. Mid Hants Ry. Co., supra; Williams v. Aylesbury and Buckingham Ry. Co., 21 W. R. 819. The receiver or mortgagees should, however, be made defendants to the unpaid vendor's action.

The lien extends to compensation for damage by severance or injury to adjoining land, Walker v. Ware, etc. Ry. Co., supra, but not to the arrears of a rent-charge, under secs. 10 & 11 post, E. of Jersey v. Briton Ferry, etc. Co., L. R. 7 Eq. 409, nor to the costs of an arbitration under sec. 34, post, p. 67: E. Ferrers v. Stafford, etc. Ry. Co., L. R. 13 Eq. 524. It equally attaches when lands are purchased and taken otherwise than by agreement.

The Court is loth to interfere by injunction where other remedies are open to the plaintiff, Munns v. Isle of Wight Ry. Co., supra; Williams v. Aylesbury and Buckingham Ry. Co., 21 W. R. 819; Lycett v. Stafford and Uttoxeter Ry. Co., L. R. 13 Eq. 261 (where the Court refused to restrain the running of trains pending sale), and will not appoint a receiver before judgment on an interlocutory application: Latimer v. Aylesbury and Buckingham Ry. Co., 9 Ch. D. 385.

If the vendor has taken a bond for his purchase money,