acquired compulsorily lands for the purposes of their special Act; and that under the Lands Clauses Act the company could not acquire or compel the conveyance to them of any lands of which the price had not been ascertained before the expiration of the time for the completion of their line under their special Act, and that the powers of acquiring such lands, either under the agreement or compulsorily, had accordingly determined; and the plaintiffs further charged to the effect that if the powers conferred by the said agreement had not expired, then, by the construction of the same agreement, the company were only entitled to acquire, in addition to the one acre on which the passenger station had been erected, a small quantity of land not exceeding one acre in extent, and that only for the purposes of a passenger station, and not of a goods station. The plaintiffs further charged that if the company had any right under the said agreement or notice to treat, they had waived the same by the hereinbefore stated letter of the 26th of February, 1869, and they prayed for an injunction to restrain the company from continuing in possession of the lands and hereditaments upon which they had entered (other than the same on which the passenger station had been erected) until the amount to be paid for such land by the company to the plaintiffs had been ascertained under the provisions of the Lands Clauses Consolidation Act, that it might be declared that the letters of the 26th of January and 26th of February, 1869, constituted a valid agreement for the purchase by the company of the lands upon which they had entered, at a price to be determined by arbitration, under the provisions of the Lands Clauses Consolidation Act, and for the specific performance of the same agreement, together with an order for the payment of the purchase money, and a declaration that the plaintiffs were entitled to a lien in the meantime for the price thereof so to be ascertained, or that the agreement contained in the said letters might be rescinded, and possession of the lands restored to the plaintiffs, and for damages and other relief. The company by their answer stated that the said notice to treat had never been acted upon, because they were entitled to acquire the land under the said agreement of the 4th of September, 1863, and that they had taken possession under that agreement, and not under the notice to treat, which they contended had been altogether long since abandoned, and under which no proceedings had been taken. They also repudiated the authority or power of Mr. Porter to bind the company by his letter of the 26th of February, 1871. In their evidence it was stated that the company required this land for the purpose of making approaches to the station. Mr. Kay and Mr. Lawson, for the plaintiffs, argued that a reasonable limit must be placed on the period within which the agreement was to continue in force. It could not be intended to remain binding for ever. The notice to treat operated as a waiver of the agreement- Bedford and Cambridge Railway Co. v. Stanley, 32 Law J. Rep. (N.S.) Chanc. 60; 2 Jo. & H. 746, 762. The compulsory powers of taking lands had expired Richmond v. The North London Railway Co., 37 Law J. Rep. (N.S.) Chanc. 273, and on App. 886; Law Rep. 5 Eq. 352, and Law Rep. 3 Chanc. 679. They also cited Baker v. The Metropolitan Railway Flower v. London, Brighton, and South Coast Railway Co., 2 Dr. & Sm. 330; 8. c. 34 Law J. Rep. (N.S.) Chanc. 540; Marson v. The London, Chatham, and Dover Railway Co., 38 Law J. Rep. (N.S.) Chanc. 371; s. c. Law Rep. 7 Eq. 546. Mr. Little and Mr. C. II. Turner, for the defendant company, contended that the agreement was still in force, and that under it the company were entitled to take this land at the rate of 1007. per Co., 7 Hare 251; s. c. 17 Law J. way Company, 16 Q.B. Rep. 526. The Court must accept the evidence of the railway company without further enquiry as to the purpose for which the land was required Stockton and Darlington Railway Company v. Brown, 9 H.L. Cas. 246, 254. The plaintiffs had a sufficient remedy at law under the 68th section of the Lands Clauses Consolidation Act. BACON V.C. (without calling for a reply), said: This case lies within very narrow dimensions. The first question which preents itself is upon the construction of this agreement. [His Honour having stated the circumstances under which the agreement was made, and read the clause of it set out above, continued as follows:] The defendants say that upon the construction of this agreement they were to be at liberty at any time, under whatever circumstances they thought fit, to take any land belonging to the plaintiffs for the purposes of the railway generally. If the only question before me was the construction of this agreement, I should not hold that it was in the contemplation of these parties, or expressed by the words they have used, that the railway, a perpetual corporation, were to be at liberty at any time to exercise the power to take or to insist upon taking from the owner of the land any portion that under altered circumstances or in their own judgment (referring to the last case mentioned in the House of Lords-Stockton and Darlington Railway Company v. Brown, ubi supra), they might think necessary for the general purposes of the railway. I cannot believe that the meaning of this agreement is, "We, the railway company, shall be the true owners of all the land you possess, and shall take as much of it as we like at any time, whether you have built houses upon it, whether you have tilled it for agricultural purposes, whether you have made it into market gardens or anything else, but at whatever period we think fit we will assert and exercise this right." That in my opinion is not the meaning of the agreement. If the case stood upon the agreement alone I should hold that it did not authorise the company, without limit, and to the extent that has been contended for, to take any additional land they required. But it is not on y upon that, that this case is to be decided. Assume that the powers intended to be conferred by the 5th clause were as extensive as has been argued, surely they must be exercised in such a manner as would entitle the company if they were plaintiffs to ask for the specific performance of the agreement. Would this Court decree the specific performance of an agree ment such as is contended for at the instance of the other side? I apprehend that is wholly out of the question. Nothing so unreasonable could be done under the authority of this Court. But, again, whatever be the intent or meaning of the agreement, the parties claiming the benefit of it must claim that benefit within a reasonable time. More than that, they must do nothing that is wholly inconsistent with the agreement. It is open to persons who have such a power as this clause gives to the railway company to relinquish or modify that power, if by doing that they do not alter the status and interests of the person with whom they are dealing. Well then, assuming the power of the company was that which they now at the bar assert, how is it to be explained that in the year 1865, within little more than twelve months of the date of this agreement (which was made in 1863), they serve a notice to treat under the Act of Parliament. That I take was a direct relinquishment of and departure from the agreement, no slip, no accident, no such thing as is suggested by the present Lord Chancellor in his judgment in the case of The Bedford and Cambridge Railway v. Stanley (supra), offering no inducement to the Court to endeavour to look with as much indulgence and leniency as it could upon such a transaction. But consider what it is. The railway company, for their own purposes, have a right to exercise this sort of option, and prefer to use the power that the Act of Parliament gives them, and they serve a notice to treat, which binds the owner of the land, against which he cannot allege the agreement and cannot be heard to say anything. He must go before a jury, and he must make out his case as well as he can. On the company's part, no doubt they would say that this agreement ought to induce the jury not to give more than 1001 per acre. That would be a matter to be fought before the jury. This is the very converse of the Bedford Railway case. Instead of supposing that there was any slip or mistake or misapprehension in the assertion of their rights, or anything that could entitle them to any sort of indulgence if the Court were at liberty to extend any indulgence to them, the railway company do a most deliberate act, for just before the time for the compulsory purchase under the Act of Parliament had expired, notice was given by them, and acted upon to the extent of taking possession. But the plaintiffs do not seem to have been jealous or alarmed at this, they considered there was an end to the agreement, and nothing further is said about the agreement. But this notice to treat had been given by the company, who were at that time busy making their railway, which was completed in 1868. The plaintiffs left the company in possession of that which they had taken in the year 1867; correspondence ensues upon that. Upon the one side Mr. Johnson says, "You must pay for the land you have taken." Mr. Freeland, whose authority on behalf of the company is not disputed, I think, says, "Remember there is the agreement.' Nothing further is done upon that subject until the year 1869, when in January that correspondence took place of which Mr. Johnson is the writer upon the part of the plaintiffs and Mr. Porter, whose authority is disputed, upon the part of the defendants; the authority being disputed, and the plaintiffs having no means of proving that authority. I cannot say that the agreement which was come to in those two letters of 1869 constitutes such an agreement as I can enforce. Mr. Kay does not press for a decree upon that part of the case. What he insists upon is that under these circumstances, the possession having been. wholly unlawful, nothing taken under the agreement, but being taken under totally different circumstances, it cannot be retained by the railway company either by force of this agreement or from any other circumstances. On the part of the railway company it has been argued that in the Act of Parliament there is a power for acquiring land for extraordinary purposes, which carries a right to complete the purchase. plete the purchase. But that is departing wholly from the agreement, for whatever be the powers for extraordinary purposes, they cannot be asserted but by means of a previous notice to treat. The argument is wholly inconsistent in the two branches of it when it is said that the Act of Parliament gives the company power to acquire land, and yet the notice which they serve to treat, and which imposes upon them the obligation of paying the price and having the price ascertained in a particular way, still is of no opera tion. A part of the case which has been greatly argued is that this land is required for the purposes of the railway. The House of Lords, in the case that was cited, did as much as they could to put an end to what I think is a doubtful practice growing up in the Courts, of employing and delegating power to experts. The House of Lords decided in that case that the judgment of the railway company, provided that it were exercised bona fide, was to be the rule by which their authority was to be determined. I have no inclination to dispute that, and I have no right to dispute that if I was inclined to do so. But when you come to the question whether this land is required for the purposes of this line, it is quite clear to me that the defendants have made out no such case as should induce the Court to believe that they wanted it for any of the purposes of the railway. How does the matter stand? They take one acre of land, they point out in the agreement that an acre will be enough for the station and the things connected with the station; no one can doubt that that would be abundant enough, the map shews that there is abundant space for making a station for goods and for making approaches to that station. And the inequality of the surface does not suggest any reason why Then that should be extended, because it appears that they have deposited soil for the purpose of elevating the existing surface and forming those approaches. [After referring to the evidence on this part of the case, which he said was of the most meagre and unsatisfactory kind, his Honour proceeded as follows:] the case that this is wanted for any purpose of the railway connected with the agreement, in my opinion wholly fails. It is quite clear that the company do not want it. If they do want it, then they have not taken the right mode of acquiring it, but relying as they do solely upon the agreement, assuming that that gives them a right to the possession of this land, they paying the price of 1001. per acre, I say that if that were so under the agreement, which I do not admit to be so, by serving the notice to treat they wholly waived and departed from that agreement, they have changed the position and rights and interests of the parties to whom they were opposed. The position was taken and acquiesced in on the ground that the notice which had been served cannot be referred to the position intended to be taken under the agreement. The defendants refused to complete or perform that understanding upon which the possession was permitted to be taken, and in my opinion they can hold the land no longer. Whatever their rights may be under the agreement they must assert them in some other way; whatever the rights may be, if they have any, under the Act of Parliament, they may assert them, but they are not entitled to retain possession of that land under the circumstances which exist. This makes it unnecessary for me to observe very particularly on the rest of the case. But it is impossible to think, upon a case between a railway company and an individual, in which the railway company having by their agents, well authorised or not, carried on these negotiations for so long a period, not being ignorant (for they do not say they were ignorant) of the letters of Mr. Porter, not being ignorant of the fact that the surveyor appointed by the plaintiffs was put into communication with the surveyor of the defendants (whether arbitrator or not does not signify), that those two persons together ascertained the extent of the land, that the engineer resorted to the stipulation in the agree ment, that all that is used upon the discussion and argument, which I am surprised to hear have been adduced by the railway company for the purpose of evading the completion or fulfilment of a very fair contract. I think the conduct of the railway company has been eminently unfair, and I think the decree must be, as has been asked for, for an injunction restraining them from keeping any longer in possession of the land which is not theirs, and which they have no means of making theirs. The terms of the injunction should be expressed—" From continuing in possession of the lands and hereditaments upon which they have so entered as aforesaid, other than and except such land as they shall mark out in a fortnight, as the one acre on which the passenger station has been erected as hereinbefore mentioned, unless and until the amount to be paid for such land has been ascertained," as prayed for by the bill. An inquiry as to damages was also added. Priorities-Notice-Commission in the Army-Charges on Proceeds of Sale of. A notice left at a bank after business hours only operates as notice to the bank from the time when in the ordinary course of business it is opened and read. An officer in the army retired from the service by the sale of his commission. The proceeds of the sale were in the hands of the army agents on the 7th of December, but the balance payable to him after deduction of his regimental debts was not transferable to his account until the 8th, on which day it was so transferred. He had previously to the sale charged the proceeds of his commission with various sums of money advanced to him. One of the incum brancers left a notice of his charge at the office of the army agents at half-past five, p.m., on the 7th instant, after business hours, and when the office was closed. The other incumbrancers left similar notices as soon as the office doors were open next morning:-Held, that all the notices must be taken to have been left at the same time, and therefore the priorities of the several incumbrancers depended on the dates of their securities. Papillon v. Brunton, 29 Law J. Rep. (N.S.) Exch. 265. distinguished. The question raised by this appeal was the order of priority of several persons entitled to charges upon the proceeds of the sale of the commission of one William Forbes, formerly a lieutenant in the army. On the 29th of March, 1869, the plaintiff, Calisher, a money lender, discounted for Forbes a bill for 627. 10s., payable three months after date, and on the same day Forbes agreed in writing to charge the proceeds which might arise from the sale or exchange of his commission with the 621. 10s., and also with any further sum or sums which Calisher might advance, or for which Forbes might be liable to him, together with any interest or costs incurred in respect of the same. This bill was not paid at maturity, and on the 2nd of August, 1869, Calisher discounted another bill for Forbes for 887. 148., payable two months after date. This sum included the 627. 10s., the amount of the former bill, and interest and costs in respect thereof. On the 18th of September, 1869, Calisher discounted another bill for 251. for Forbes. Calisher subsequently bought up a bill for 801., which had been discounted for Forbes by a Mr. Benjamin on the 13th of August, 1869. It did not appear at what time this purchase was made by Calisher. On the 4th of June, 1869, Forbes wrote to the defendants, Messrs. Hopkinson & Son, who were the agents of his regiment and also his agents, a letter, telling them that an acceptance given by him that day for 627. 10s. and discounted by the defendant Rubinstein, formed a charge on his commission. NEW SERIES, 41.-CHANC. On the 18th of November, 1868, Forbes drew a bill of exchange for 3001. upon Messrs. Cox & Co., the army agents, which was discounted for him by the Simla Bank Corporation. This bill, which became due on the 25th of June, 1869, was not paid. It was made payable in London to the defendants, the Oriental Bank Corporation, as the agents of the Simla Bank. On the 23rd of July, 1869, Forbes informed Messrs. Hopkinson & Son by letter that the sum of 300l. was a charge on tho proceeds of his commission. On the 7th of December, 1869, the retirement of Mr. Forbes from the service by sale of his commission was announced in the London Gazette. On the same day the price of his commission was placed in the hands of Messrs. Hopkinson & Co. From this sum the amount of his regimental debts had to be deducted before the balance payable to him or his creditors could be ascertained, and the same transferred to his account. The balance amounted to about 500l., and that sum became transferable to him and was placed to his credit in his account with Messrs. Hopkinson & Son on the following day, the 8th of December. At half-past five o'clock on the evening of the 7th of December, the defendants, the Oriental Bank Corporation, left a notice in writing at Messrs. Hopkinson & Son's office, requiring them not to part with the proceeds of the sale of Forbes' commission without paying them the amount due on their bill. At the opening of the bank at nine a.m. next morning similar notices were served by a number of Forbes' other creditors, including Calisher and Rubinstein. Messrs. Hopkinson & Son having under these circumstances declined to part with the money until the rights of the various incumbrancers had been judicially decided, Calisher filed his bill against them, Rubinstein, the Oriental Bank Corporation, and other incumbrancers and Forbes, to have the question of priorities decided by the Court. The Master of the Rolls decided at the hearing that Rubinstein was entitled to the first charge with respect to his bill for 621. 10s. ; that the plaintiff, Calisher, came next, I |