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the plaintiff in and by the said *notice did also state to the defendants that it was the desire of the plaintiff to have the amount of the said compensation settled by a jury, according to the provisions of the statutes in that case made and provided; and that unless the defendants were willing to pay the said sum of 156l. to the plaintiff, and entered into a written agreement for that purpose within twenty-one days after the receipt by the defendants of the said notice, the plaintiff required the defendants within twenty-one days after such receipt to issue their warrant to the Sheriff of Monmouthshire or other proper officer to summon a jury for settling the amount of the said compensation. And the plaintiff further says, that the defendants were not willing to pay the said amount of compensation claimed by the plaintiff, nor would they enter into a written agreement for that purpose within twenty-one days after the receipt of the said notice; but wholly refused so to do or to make any compensation whatsoever to the plaintiff in respect of the premises. And the plaintiff and defendants did not agree as to the amount of such compensation. And the defendants being desirous that the question of the said disputed compensation should be tried before a special jury, within twenty-one days after the receipt of the said notice by them, duly issued their warrant in writing under their common seal and directed to the sheriff of the county of Monmouth (he not being interested in the matter in dispute), in accordance with the provisions of the said Acts of Parliament; and by the said warrant, after reciting and setting out the notice aforesaid, and that the defendants were unwilling to pay the compensation claimed thereby and disputed the same, the defendants, as promoters of the undertaking, pursuant to the provisions of the first-mentioned Act of Parliament in that behalf, required the said sheriff to summon a special jury, pursuant to the directions *contained in the said Act, for the purpose of settling and determining the said question of disputed compensation. Averments: that afterwards an inquisition was duly held and taken in accordance with the provisions of the said Acts of Parliament in that behalf, and in pursuance of the last-mentioned request and warrant of the defendants, before E. B. Dimmack, Esq., then being sheriff of the said county of Monmouth and before a jury (naming them), who were duly impannelled and sworn to enquire of and concerning the matters by the said warrant directed to be enquired of, assessed and determined by them as in the said warrant mentioned; and the plaintiff and defendants having by their respective counsel, attorneys or agents appeared before the said sheriff and the said jurors, and having produced evidence touching the matter in question as aforesaid;

CHAPMAN

v. MONMOUTH

SHIRE RAILWAY AND CANAL COMPANY.

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[ *272 ]

CHAPMAN

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MONMOUTH

SHIRE

RAILWAY

COMPANY.

[ *273 ]

the said jurors upon their oath said that they did assess and give a verdict for the sum of 40l. to be paid by the defendants to the plaintiff, as and by way of compensation for obstructing and AND CANAL hindering the access of foot passengers, customers, horses and carts along, over and upon the common and public highway mentioned in the said warrant and in the said notice, leading from Canal Parade to Corn Street in Newport aforesaid. And the said jurors upon their oath aforesaid, also said that they did. assess and give their verdict for a sum of 201. 10s. to be paid by the defendants to the plaintiff, by way of compensation for the obstruction of the light and air, and of the convenient access to the said house, caused by the construction of a fence (in the said notice and warrant mentioned) on the said public footway called Canal Parade on and to which the said house abutted and adjoined as aforesaid; and for constructing and maintaining the said fence for the space of thirteen calendar months. And the said jurors upon their oath aforesaid, also said that they did *assess and give a verdict for the sum of 45l. to be paid by the defendants to the plaintiff, for the depreciation in the annual value of the said house and premises, by reason of the loss of trade and business carried on therein by the plaintiff as a beerhouse keeper (as in the said notice and warrant mentioned); and by the obstruction, since the 31st day of January, 1856, of the access of air and light (as in the said notice and warrant mentioned) to the said house and premises; and by the smoke, vapour and noises (in the said notice and warrant mentioned) caused by the works and the locomotive engines, carriages and waggons of the defendants constructed, maintained and worked, drawn and propelled close to and opposite the said house and premises, which said several sums of 401., 20l. 10s. and 45l. were so assessed by the verdict of the said jurors, as the compensation for the damage sustained by the plaintiff, by reason of the damaging and injuriously affecting the said house and the plaintiff's said interest therein as hereinbefore alleged, and amounting in the whole to 105l. 10s. And the said sheriff did then and there accordingly, pursuant to the statutes in that behalf, give judgment for the said total sum of 105l. 10s., so assessed by the said jury, to be paid by the defendants to the plaintiff, according to the provisions of the said statutes; and the said verdict and judgment were then and there duly signed by the said sheriff, and being so signed were duly deposited and left by the said sheriff with the clerk of the peace of the said county of Monmouth, by whom the same are now kept among the records of the Quarter Session of the said county, and the said verdict and judgment still remain in full force and effect and nowise re

versed or satisfied: Yet the defendants have not paid to the plaintiff the said sum of 105l. 10s. or any part thereof.

Plea. That neither by the execution of the works, nor by the construction of the railway in the declaration mentioned, nor in the exercise of the powers of the Acts in the declaration mentioned, conferred on the defendants for the purposes of the said railway, was the said house or the plaintiff's interest therein damaged or injuriously affected within the meaning of the said Acts of Parliament, or in the manner described in the notice in the declaration mentioned; nor was, nor is the plaintiff entitled to compensation, under the provisions of the said Acts of Parliament, in respect of the same having been so damaged or injuriously affected. Issue thereon.

At the trial before Willes, J., at the last Monmouthshire Spring Assizes, the plaintiff proved a certified copy of the inquisition before the sheriff, and there rested his case. The defendants objected that the inquisition was not conclusive as to the right of compensation, and tendered evidence as to the claims on which the sheriff's jury had made their assessments. Such evidence was rejected by the learned Judge, who being of opinion that some of the claims for which the assessment of 45l. had been made were in respect of the use of the railway and therefore of doubtful validity, directed a verdict for the plaintiff for the sums awarded separately; and gave leave to the defendants to move the Court and to appeal in the place of a bill of exceptions.

Whateley, accordingly, obtained a rule nisi for a new trial on the ground that the learned Judge misdirected the jury in holding:

First. That there was evidence to go to the jury.

Secondly. That the inquisition was conclusive on the plaintiff's right to compensation in respect to the matters alleged in it to be the subject of compensation.

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Thirdly. That the inquisition was conclusive as to there *being [ *275 ] a highway, and that the learned Judge rejected evidence that it was not a highway.

Fourthly. That the learned Judge rejected evidence that the fence was not on the defendants' land, or on land upon which they had authority to place it.

Fifthly. That some of the matters in respect of which the sum of 451. was assessed by the sheriff's jury are not the subjects of compensation; and that that sum not being severed in the inquisition, no part of it can be recovered.

The Solicitor-General, Phipson and Matthews showed cause (June 5):

The question depends on the 68th section of 8 & 9 Vict. c. 18,

R.R.-VOL. CXV.

34

v.

SHIRE

RAILWAY

COMPANY.

CHAPMAN which enacts, that "if any party shall be entitled to any MONMOUTH. Compensation in respect of any lands, or of any interest therein, which shall have been taken for or injuriously affected by the AND CANAL execution of the works, and for which the promoters of the undertaking shall not have made satisfaction" under the provisions of their Acts, and if the compensation claimed shall exceed 50l., such party may have the same settled either by arbitration or by the verdict of a jury, as he shall think fit. In Reg. v. London and North Western Railway Company (1), the majority of the COURT limited the functions of the jury under this section to the fact of damage and its amount. Admitting for the present the authority of that decision, the result of the cases on this subject is, that it is a condition precedent to the jurisdiction of the sheriff's jury that the claimant has a good title, and that the injuries are such as may be properly inquired of by the jury: that the Company by issuing their warrant make no admission of title, and the claimant, upon obtaining his verdict, is compelled to bring an action thereon and distinctly allege his *title. It is submitted that on these pleadings all the objections to the plaintiff's title to damages, and to the jurisdiction of the jury, appear on the record, and might be taken advantage of in the proper way. The language of the learned Judge as to the conclusiveness of the inquisition applied only to the points as to which it could be conclusive, that is, the fact of damage and its amount. As to the other parts of the case the inquisition was some evidence. On the first claim, that in which the defendants had narrowed the highway by erecting upon it a fence, and so obstructed access to the plaintiff's house, the evidence tendered by the defendants was that the fence was not erected upon their own land, but such evidence was immaterial and was therefore properly rejected. Again, as to the question of public highway, the jury had a right to consider and decide that point as against the defendants. The authority of Reg. v. London and North Western Railway Company (1) only extends to questions of private way and of private title.

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(POLLOCK, C. B.: If the jury cannot try the question of a private right of way, a multo fortiori, they cannot decide upon the existence of a public right of way?)

With regard to the damage caused by the use of the engines,
that claim comes either under the 68th section of the Lands
Clauses Consolidation Act or under the 16th section of the
Railways Clauses Consolidation Act (2), which enacts, that the

(1) 97 R. R. 584 (3 El. & Bl. 443).

(2) 8 & 9 Vict. c. 20,

CHAPMAN 2.

Company may do certain specified acts, and may do "all other acts necessary for making, maintaining, altering or repairing, MONMOUTHand using the railway." This item of damage comes within the term "using the railway."

(BRAMWELL, B.: Is a permanent amount of compensation to be fixed, or is the damage to be assessed de anno in annum ? POLLOCK, C. B.: The intention of the Acts was, that the compensation *should be once for all.)

(Reg. v. The Lancaster and Preston Railway Company (1) and Reg. v. The Eastern Counties Railway Company (2) were referred to.)

Whateley, Gray and Sir T. Phillips appeared in support of the rule; but were not called upon to argue.

POLLOCK, C. B. now said:

Cur. adv. vult.

We have consulted with my brother WILLES, who states that he intended to decide contrary to the case of Reg. v. The London and North Western Railway Company (3): we are bound to decide in accordance with that case; the rule will therefore be absolute with liberty for the plaintiff to appeal.

Rule absolute accordingly (4).

KNILL AND ANOTHER v. HOOPER (5).

(2 H. & N. 277–284; S. C. 26 L. J. Ex. 377; 29 L. T. O. S. 229; 5 W. R. 791.)

In a voyage policy of insurance on salvage, there is an implied condition or warranty of seaworthiness.

THE first count of the declaration was on a policy of insurance in the usual printed form (6), and stated "that the plaintiffs did cause themselves and every of them to be insured, lost or not lost, at and from Terceira to a final port of discharge in the United Kingdom, upon any kind of goods and merchandizes, and also upon the body, tackle, apparel, &c., and other furniture of and in the good ship or vessel called the Europa, whereof was master, &c., beginning the adventure upon the said goods and *merchandizes from the loading thereof aboard the said ship as above mentioned, upon the said ship, &c., and so should continue and endure during her abode there; upon the said ship, &c., and further until the said ship with all her ordnance, tackle, apparel, &c., and goods and merchandizes whatsoever should be arrived at, as above (1) 66 R. R. 560 (6 Q. B. 759). (5) Marine Insurance Act, 1906, (2) 57 R. R. 689 (2 Q. B. 347). (3) 97 R. R. 584 (3 El. & Bl. 443). (4) Reported by Douglas Brown, Esq.

8. 39.

(6) See Arnould on Insurance, vol. 1, p. 21. [P. 12, 7th ed.]

SHIRE RAILWAY AND CANAL COMPANY.

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1857.

June 10

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