the costs of the reference properly incurred by him out of the purchase price, when paid into court, if entitled to them from the promoters (u). When a person is entitled to costs of an arbitration for lands taken under the Lands Clauses Acts, it is not a condition precedent to his right to recover them that he should have executed a conveyance of the lands (~). The Lands Clauses Consolidation Act, 1869 (32 & 33 Vict. c. 18), s. 1, enacts, that "where in England under the Lands. Clauses Act, 1845, or any act incorporating the same, any question of disputed compensation is determined by arbitration, the costs of and incident to the arbitration and award shall, if either party so requires, be taxed by any one of the taxing masters of the superior courts of law," &c. Since this clause, the award need not say anything about costs, for the statute gives the right to them, and the master may settle the amount (). The courts cannot review his taxation, for he taxes, not as officer of the court, but as a persona designata (z). This section, according to Lush, J., applies only to arbitrations pure and simple begun and carried on within the Lands Clauses Acts, and does not attach when there is a special agreement of reference concerning matters not within those acts. It does not seem to have a retrospective effect (a). If the solicitor whom the claimant employs to conduct the arbitration is uncertificated, or not duly qualified, the claimant, though he be otherwise, by the result of the award, entitled to his costs from the promoters, and though he was not, during the arbitration, aware of the disqualification, cannot recover from the promoters anything for costs or disbursements, the prohibition in the stat. 37 & 38 Vict. c. 68, s. 12, being clear and express (b). It is advisable that the award should recite all those facts which are necessary to give the arbitrators jurisdiction. It (u) Earl Berkley's Will, In re, 31 L. T. 531; Perpetual Curate of Whitworth, Ex parte, 24 L. T. 126. (x) Capel v. Great-Western Rail. Co., 4 Q. B. D. 459. (y) Sharpe v. Metropolitan District Rail. Co., 4 Q. B. D. 645; in H. L. 5 App. Cas. 425; Rayner, Ex parte, 3 Q. B. D. 446. (z) Sandback Trustees v. North Staffordshire Rail Co., 3 Q. B. D. 1. (a) Doulton v. Metropolitan Board of Works, L. R. 5 Q. B. 333, S. C. 39 L. J. Q. B. 165. (b) Fowler v. Monmouthshire Rail., &c. Co., 4 Q. B. D. 334. should therefore shortly allege the right of the promoters of the undertaking under their act to take the lands in question, their notice to the party offering to treat for the purchase of his interest, the claim by the party for compensation, the statement of the nature of his interest, the disagreement respecting the amount of compensation, the demand by the party to have the matter settled by arbitration, the appointment of the arbitrators and umpire, the delivery to them of such appointments, and the making and subscribing by them of the declaration required by the act, before entering on the matters referred. The arbitrators are also recommended to state that, in calculating the compensation, they have had regard to the principles prescribed by the statute for assessing the amount in section 63. PART II. CH. IX. tion of subject-matter. A misdescription or variance in the statement of the sub- Misdescripject-matter on which they profess to award is a serious. error. Thus, if they be appointed to ascertain the amount of compensation to be paid to a party for his interest in the land required by the promoters, and they award in terms respecting the value or the fee simple of the land, grave questions may be raised suspecting the validity of their decision (c). award to The award must be in writing, and is to be delivered to Delivery of the promoters; and the latter, on demand, at their own promoters. expense, are to furnish the other party with a copy (d). Compelling promoters to take up award. It has been held that the Court of Chancery has no jurisdiction to order the promoters to take up the award (e): but an order to that effect was made in one case by the Master of the Rolls (f). And a mandamus will issue to Mandamus. compel the promoters to do so if they neglect; and they are bound to pay the arbitrator his reasonable fees on taking it up, for he has a lien on the award which the statute does not to take away. It is not decided whether, when the applicant is pay half the costs of the award under section 34, a different rule would apply (g). (c) See Barker v. North Staffordshire Rail. Co., 12 Jur. 324; Bradshaw's Arbitration, 12 Q. B. 562; The North Staffordshire Rail. Co. v. Landor, 17 L. J. Ex. 350. (d) 8 & 9 Vict. c. 18, s. 35. (e) The Sutton Harbour Co. v. Hitchens, 16 Beav. 381. (f) Harper v. Great-Eastern Rail. Co., L. R. 20 Eq. 39. (g) The Queen v. The South Devon Rail. Co., 15 Q. B. 1043. See The Queen v. The West Midland Rail. Co., 10 W. R. 583; Mason v. Stokes Bay Rail. Co., 32 L. J. Ch. 110. PART II. CH. IX. Return. Declaration to be annexed to award. Award not void through A return that the claimant's premises had not been injuriously affected by the works is a good answer to such a mandamus (h). The declarations made and subscribed by the arbitrators or umpire before entering upon the matters referred, must be annexed to the award when made (i). In a case where the arbitrators had never entered on a consideration of the matters referred, and where they disagreed about the umpire, and allowed the twenty-one days to expire without enlargement, and without having made the declarations required by the statute, though they made such declarations afterwards, and the umpire was appointed by the Board of Trade, an objection to the award, on the ground of the omission of the arbitrators to make such declarations in due time, seems to have been treated as futile. It is probable that where the arbitrators do not enter on the reference, it is unnecessary for them to make the declarations (). "No award made with respect to any question referred to error in form. arbitration, under the provisions of this or the special act, shall be set aside for irregularity or error in matter of form "(). Ordering a company to pay an amount, though wrong, is an error in form only (m). Enforcing award by action. The award fixes only the quantum of damage, but does not decide the right any more than the finding of the jury. Therefore, where it appeared by facts stated in the award that there was a real question as to the claimant's right to compensation, the Court of Common Pleas refused to enforce the award by granting a rule to pay, but left the party to his action, and intimated that probably the same course would be pursued, if the point appeared, not on the award, but by affidavits in answer to the motion (n). The costs of the reference settled by the arbitrator cannot be recovered except by action (o). (h) Reg. v. Cambrian Rail. Co., (i) 8 & 9 Vict. c. 18, s. 33. (1) 8 & 9 Vict. c. 18, s. 37. See Bidder v. North Staffordshire Rail. (n) Newbold v. The Metropolitan Rail. Co., 14 C. B. N. S. 405. (0) London and North-Western Rail. Co. v. Quick, 5 D. & L. 685; Gould v. Staffordshire Potteries Waterworks Co., 5 Ex. 214. Where a party is entitled to costs and to have them taxed by the master, he may commence his action to recover them before the taxation (p). PART II. CH. IX. Action before taxation. moving to set aside award. A motion to set aside an award under the Lands Clauses Time for Act must have been made within the time prescribed by the stat. 9 & 10 Will. III. c. 15 (q). That act is repealed by the Arbitration Act, 1889 (r). But the time for moving to set aside awards seems to be governed by R. S. C. Ord. LXIV. r. 14. Moving to set aside award not bar right to costs of title. Moving to set aside the award for objections of weight, though ultimately overruled, is not such a wilful refusal to receive the money awarded as will disentitle the claimant to the costs of making out his title under section 80 of the Lands Clauses Consolidation Act, 1845 (s). The making of an award which has assessed the compensa- Award not tion on the assumption that the railway would cross two deviation. prevent public roads by passing under them in a cutting, does not preclude the company from exercising their powers of diverting one of these roads. If the claimant is injured by the change, he may demand further compensation (t). But sub- But enforceject to the exercise of such a statutory power, a notice to take able in equity lands given by a railway company, and the fixing the amount of compensation by arbitration, together constitute a contract for sale and purchase, which a court of equity will enforce at the instance of the claimant (u). The promoters may, after paying the sum awarded into court, take possession of the land though proceedings to set aside the award are pending (x). (P) Sharpe v. Metropolitan District Rail. Co., 4 Q. B. D. 645, in H. L. 5 App. Cas. 425. (2) Harper v. Great Eastern Rail. Co., L. R. 20 Eq. 39. 52 & 53 Vict. c. 49. L. J. Ch. 454. (t) Selby v. The Colne Valley and Halstead Rail. Co., Wood, V.-C., June 13, 1862, 7 L. T. N. S. (u) Mason v. The Stokes Bay (a) Lambert v. Dublin, &c. Ry. Co., 24 L. R. Ir. 164. as a contract. PART II. Requisites of award. (2.) AWARD UNDER THE AGRICULTURAL HOLDINGS ACT, 1883. In awarding under the Agricultural Holdings Act, 1883 (y), the arbitrator is not to award a lump sum, but is to specify the several sums allowed for the several improvements, acts, and things for which compensation is given and the matters taken into account in reduction or augmentation thereof, and the time when the improvements, &c. were executed. A reference of matters under the act, together with others outside it, is not a reference under the act, and does not render it obligatory on the arbitrator to specify the sums and details as required by the act (≈). (y) 46 & 47 Vict. c. 61, s. 19. See Appendix of Statutes. (z) Shrubb v. Lee, 53 J. P. 55. |