29 VICTORIA, No. 289. Recovery of costs. "The Lands Clauses Consolidation Act 1845" B. 53. Special jury to be summoned at Deficiency of Ib. s. 55. 311. If any such costs shall be payable by the promoters of the undertaking and if within seven days after demand such costs be not paid to the party entitled to receive the same, they shall be recoverable by distress; and on application to any justice he shall issue his warrant accordingly; and if any such costs shall be payable by the owner of the lands or of any interest therein, the same may be deducted and retained by the promoters of the undertaking out of any money awarded by the jury to such owner or determined by the valuation of a surveyor under the provisions hereinafter contained; and the payment or deposit of the remainder (if any) of such money shall be deemed payment and satisfaction of the whole thereof; or if such costs shall exceed the amount of the money so awarded or determined, the excess shall be recoverable by distress; and on application to any justice he shall issue his warrant accordingly. 312. If either party desire any such question of disputed compensation as aforesaid to be tried before a special jury, such question shall be so tried; provided that notice of such desire, if coming from the other party, be given to the promoters of the undertaking before they have issued their warrant to the sheriff; and for that purpose the promoters of the undertaking shall by their warrant to the sheriff require him to nominate a special jury for such trial; and thereupon the sheriff shall as soon as conveniently may be after the receipt by him of such warrant summon both the parties to appear before him by themselves or their attorneys at some convenient time and place appointed by him for the purpose of nominating a special jury (not being less than five nor more than eight days from the service of such summons); and at the place and time so appointed the sheriff shall proceed to nominate and strike a special jury in the manner in which such juries shall be required by the laws for the time being in force to be nominated or struck by the proper officer of the Supreme Court; and the sheriff shall appoint a day not later than the eighth day after striking of such jury for the parties or their agents to appear before him to reduce the number of such jury, and thereof shall give four days' notice to the parties; and on the day so appointed the sheriff shall proceed to reduce the said special jury to the number of twenty in the manner used and accustomed by the proper officers of the Supreme Court. 313. The special jury on such enquiry shall consist of twelve special jurymen. of the said twenty who shall first appear on the names being called over, the parties having their lawful challenges against any of the said jurymen; and if a full jury do not appear or if after such challenges a full jury do not remain, then upon the application of either party the sheriff shall add to the list of such jury the names of any other disinterested persons qualified to act as special or common jurymen who shall not have been previously struck off the aforesaid list and who may then be attending the court or can speedily be procured so as to complete such jury, all parties having their lawful challenges against such persons; and the sheriff shall proceed to the trial and adjudication of the matters in question by such jury; and such trial shall be attended in all respects with like incidents and consequences and the like penalties shall be applicable as hereinbefore provided in the case for trial by common jury. No. 289. 314. Any other enquiry than that for the trial of which such 29 VICTORIA, special jury may have been struck and reduced as aforesaid may be tried by such jury, provided the parties thereto respectively shall other enquiries give their consent to such trial. before same special jury by consent. Clauses Consoli 315. No juryman shall without his consent be summoned or The Lands required to attend any such proceeding as aforesaid more than once dation Act 1845" in any year. 8.56. Attendance of jurymen. be determined by 316. The purchase money or compensation to be paid for any 8. 57. lands to be purchased or taken by the promoters of the undertaking Compensation to from any party who by reason of absence from Victoria is prevented absent parties to from treating or who cannot after diligent enquiry be found or who a surveyor. shall not appear at the time appointed for the enquiry before the Ib. s. 58. jury as hereinbefore provided for after due notice thereof, and the compensation to be paid for any permanent injury to such lands, shall be such as shall be determined by the valuation of such able practical surveyor as two justices shall nominate for that purpose as hereinafter mentioned. surveyor. 317. Upon application by the promoters of the undertaking to Two justices to two justices, and upon such proof as shall be satisfactory to them nominate the that any such party is by reason of absence from Victoria prevented Ib. s. 59. from treating or cannot after diligent enquiry be found or that any such party failed to appear on such enquiry before a jury as aforesaid after due notice to him for that purpose, such justices shall by writing under their hands nominate an able practical surveyor for determining such compensation as aforesaid; and such surveyor shall determine the same accordingly and shall annex to his valuation a declaration in writing subscribed by him of the correctness thereof. the surveyor. Ib. s. 60. 318. Before such surveyor shall enter upon the duty of making Declaration by such valuation as aforesaid, he shall in the presence of such justices or one of them make and subscribe the declaration following at the foot of such nomination (that is to say) :— I A.B. do solemnly and sincerely declare that I will faithfully Made and subscribed in the presence of A.B. And if any surveyor shall corruptly make such declaration or having Penalty for false made such declaration shall wilfully act contrary thereto, he shall declaration. be guilty of a misdemeanor. other documents 319. The said nomination and declaration shall be annexed to valuation and the valuation to be made by such surveyor and shall be preserved to be produced on together therewith by the promoters of the undertaking; and they demand. shall at all times produce the said valuation and other documents on demand to the owner of the lands comprised in such valuation and to all other parties interested therein. Ib. s. 61. 320. All the expenses of and incident to every such valuation Expenses to be shall be borne by the promoters of the undertaking. borne by promoters. Ib. s. 62. 321. In estimating the purchase money or compensation to be Estimation of paid by the promoters of the undertaking in any of the cases afore- purchase money No. 289. and compensa tion. 29 VICTORIA, Said, regard shall be had by the justices arbitrators or surveyors (as the case may be), not only to the value of the land to be purchased or taken by the promoters of the undertaking, but also to the damage (if any) to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner or otherwise injuriously affecting such other lands by the exercise of the powers of this Part or the special Act or any Act incorporated therewith. "The Lands Clauses Consolidation Act 1845" 8. 63. Compensation to submitted to arbitration. Ib. s. 64. 322. When the compensation payable in respect of any lands absent party may or any interest therein shall have been ascertained by the valuation of a surveyor and deposited in the bank under the provisions herein contained by reason that the owner of or party entitled to convey such lands or such interest therein as aforesaid could not be found or was absent from Victoria, if such owner or party shall be dissatisfied with such valuation, it shall be lawful for him before he shall have applied to the Supreme Court for payment or investment of the moneys so deposited under the provisions herein contained by notice in writing to the promoters of the undertaking to require the question of such compensation to be submitted to arbitration; and thereupon the same shall be so submitted accordingly in the same manner as in other cases of disputed compensation herein before authorised or required to be submitted to arbitration. Question in such 323. The question to be submitted to the arbitrators in the case case for arbitra- last aforesaid shall be whether the said sum so deposited as aforesaid by the promoters of the undertaking was a sufficient sum, or whether any and what further sum ought to be paid or deposited by them. tors. Further sum if awarded to be teen days. 324. If the arbitrators shall award that a further sum ought to paid within four- be paid or deposited by the promoters of the undertaking, they shall pay or deposit as the case may require such further sum within fourteen days after the making of such award; or in default thereof the same may be enforced by attachment or recovered with costs by action or suit in the Supreme Court. Ib. s. 66. Costs of the arbitration. Ib. s. 67. Cases of compen pounds to be tration or by jury at option of claimant. Ib. s. 68. 325. If the arbitrators shall determine that the sum so deposited was sufficient, the costs of and incident to such arbitration to be determined by the arbitrators shall be in the discretion of the arbitrators; but if the arbitrators shall determine that a further sum ought to be paid or deposited by the promoters of the undertaking, all the costs of and incident to the arbitration shall be borne by the promoters of the undertaking. 326. If any party shall be entitled to any compensation in sation over fifty respect of lands any or of any interest therein which shall have been settled by arbi- taken for or injuriously affected by the execution of the works and for which the promoters of the undertaking shall not have made satisfaction under the provisions of this Part or the special Act or any Act incorporated therewith, and if the compensation claimed in such case shall exceed the sum of fifty pounds, such party may have the same settled either by arbitration or by the verdict of a jury as he shall think fit; and if such party desire to have the same settled desires to go to by arbitration, it shall be lawful for him to give notice in writing to the promoters of the undertaking of such his desire, stating in such notice the nature of the interest in such lands in respect of which he Proceedings where claimant arbitration. No. 289. where claimant claims compensation and the amount of the compensation so claimed 29 VICTORIA, therein; and unless the promoters of the undertaking be willing to pay the amount of compensation so claimed and shall enter into a written agreement for that purpose within twenty-one days after the receipt of any such notice from any party so entitled, the same shall be settled by arbitration in the manner herein provided; or if the Proceedings party so entitled as aforesaid desire to have such question of com- desires to go to pensation settled by a jury, it shall be lawful for him to give notice a jury. in writing of such his desire to the promoters of the undertaking, stating such particulars as aforesaid; and unless the promoters of the undertaking be willing to pay the amount of compensation so claimed and enter into a written agreement for that purpose, they shall within twenty-one days after the receipt of such notice issue their warrant to the sheriff to summon a jury for settling the same in the manner herein provided; and in default thereof they shall be liable to pay to the party so entitled as aforesaid the amount of compensation so claimed, and the same may be recovered by him with costs by action in the Supreme Court. to parties under or upwards to be bank. tion Act 1845" 327. If the purchase money or compensation which shall be Money payable payable in respect of any lands or any interest therein purchased or disability if two taken by the promoters of the undertaking from any corporation hundred pounds tenant for life or in tail married woman seised in her own right or deposited in the entitled to dower guardian committee of lunatic or idiot trustee "The Lands executor or administrator a person having a partial or qualified in- Clauses Consolida terest only in such lands and not entitled to sell or convey the same s. 69. except under the provisions of this Part or the special Act, or the compensation to be paid for any permanent damage to any such lands, amount to or exceed the sum of two hundred pounds, the same shall be paid into the bank in the name and with the privity of the master in equity to be placed to the account there of such master ex parte the promoters of the undertaking (describing them by their proper names) in the matter of the special Act (citing it), pursuant to the method prescribed by any law for the time being in force for the regulating moneys paid into court ;(a) and such moneys shall remain so deposited until the same be applied to some one or more of the following purposes (that is to say): moneys de In the discharge of any debt or incumbrance affecting the Application of In the purchase of other lands to be conveyed limited and If such money shall be paid in respect of any buildings taken (a) The clauses of the "Lands Clauses Consolidation Act" are not applicable to lands the subject of a suit in equity; neither "the Court," nor its "receiver," nor "the suit," nor "the parties to the suit," can be deemed "the owner.' Clause 69, corresponding to this section, con templates some assignable person or persons, who happen to be under disability, and even then the money can only be paid into court with the privity of the Master.-Williamson v. Courtney, 1 W. & W. (Eq.), 161. 29 VICTORIA, No. 289. Order for application and investment meanwhile. "The Lands Clauses Consolidation Act 1845" s. 70. Sums from twenty to two hundred pounds or paid to trustees. Ib. s. 71. replacing such buildings or substituting others in their stead in such manner as the Supreme Court shall direct (or) In payment to any party becoming absolutely entitled to such money. 328. Such money may be so applied as aforesaid upon an order of the Supreme Court made on the petition of the party who would have been entitled to the rents and profits of the lands in respect of which such money shall have been deposited; and until the money can be so applied, it may upon the like order be invested by the master in equity in Government or real securities, and the interest and annual proceeds thereof paid to the party who would for the time being have been entitled to the rents and profits of the lands. 329. If such purchase money or compensation shall not amount to the sum of two hundred pounds and shall exceed the sum of to be deposited twenty pounds, the same shall either be paid into the bank and applied in the manner hereinbefore directed with respect to sums amounting to or exceeding two hundred pounds, or the same may lawfully be paid to two trustees to be nominated by the parties entitled to the rents or profits of the lands in respect whereof the same shall be payable, such nomination to be signified in writing under the hands of the party so entitled; and in case of the coverture infancy lunacy or other incapacity of the parties entitled to such moneys, such nomination may lawfully be made by their respective husbands guardians committees or trustees; but such last-mentioned application of the moneys shall not be made unless the promoters of the undertaking approve thereof and of the trustees named for the purpose; and the moneys so paid to such trustees and the produce arising therefrom shall be by such trustees applied in the manner herein before directed with respect to money paid into the bank; but it shall not be necessary to obtain any order of the court for that Application of such trust moneys. Sums not exceeding twenty pounds to be Ib. s. 72. purpose. 330. If such money shall not exceed the sum of twenty pounds, the same shall be paid to the parties entitled to the rents and profits paid to parties. of the lands in respect whereof the same shall be payable for their own use and benefit; or in case of the coverture infancy idiocy lunacy or other incapacity of any such parties, then such money shall be paid for their use to the respective husbands guardians committees or trustees of such persons. All sums payable under contract absolutely en into bank. Ib. s. 73. 331. All sums of money exceeding twenty pounds which may with persons not be payable by the promoters of the undertaking in respect of the the bid taking using or interfering with any lands under a contract or agreement with any person who shall not be entitled to dispose of such lands or of the interest therein contracted to be sold by him absolutely for his own benefit shall be paid into the bank or to No money to be trustees in manner aforesaid; and it shall not be lawful for any contracting party not entitled as aforesaid to retain to his own use any portion of the sums so agreed or contracted to be paid for or in respect of the taking using or interfering with any such lands or in lieu of bridges tunnels or other accommodation works or for assenting to or not opposing the passing of the Bill authorising the taking of such lands; but all such moneys shall be deemed to have been con retained for not opposing the passage of the Bill. |