8 Vict. c. 18, s. 37. Award not But a submission which is made a rule of court under that section is not thereby made irrevocable, but may be revoked at any time before award (Re Rouse & Meier, L. R. 6 C. P. 212, Randell v. Thompson, 1 Q. B. D. 748; Fraser v. Ehrenspegger, 12 Q. B. D. 310). At law a particular submission to arbitration is revocable (see Re Rouse & Meier, L. R. 6 C. P. 212). But a provision to refer all questions which may arise under an agreement is not revocable (Piercy v. Young, 14 Ch. D. 200). 37. No award made with respect to any question referred to void through arbitration under the provisions of this or the special Act shall be set aside for irregularity or error in matter of form. error in form. Erroneous recital. Separate awards. Direction to pay. Interest valued not stated. Validity of claim. Evidence of arbitrator. A single sum may be awarded for the price and compensation for damage by severance (Bradshaw's Arbitration, 12 Q. B. 562). And where the arbitrator is to assess a sum for purchase-money, and another sum for damage (if any) from severance, and the award fixes a sum for the purchase-money, and is silent as to damage by severance, the award will be good, it being assumed that the arbitrator by his silence negatives any claim for such damage (In re Duke of Beaufort and Swansea Harbour Trustees, 29 L. J. C. P. 241. See, however, Wakefield v. Llanelly Ry. & Dock Co., 34 Beav. 245, where upon an agreement to refer to arbitration the value of leasehold premises and the damage sustained or to be sustained by the plaintiff, the arbitrator awarded a sum as compensation for all the plaintiff's interest of whatever nature in the leasehold property, and it was held that specific performance of the contract for sale could not be enforced on the ground that the award did not assess any sum in respect of damage). A recital in the award that the umpire has heard the evidence produced on behalf of the company and the claimant, when the company has not produced any evidence, will not invalidate the award (Skerratt v. N. Staffordshire Ry. Co., 5 R. C. 166). Where an agreement to refer under the Act provides that the arbitrators shall determine the communications to be made, the compensation and the communications need not be determined in the same award (Skerratt v. N. Staffordshire Ry. Co., 5 R. C. 166). It is no objection to the award that the company is directed to pay the purchasemoney which has been ascertained, though such a direction is not within the powers of the arbitrator (Lindsay v. Direct London & Portsmouth Ry. Co., 1 L. M. & P. 529 ; In re Harper and Gt. E. Ry. Co., 20 Eq. 39). An award professing to value the interest of a certain person, who has agreed to the arbitation, by appointing an arbitrator, might perhaps be good, though it nowhere appears what that interest is. But if the interest of the claimant is not stated, an award finding the value of the fee would be bad, if it appears that there are incumbrancers entitled to compensation (N. Staffordshire Ry. Co. and Landor, 2 Ex. 235). Where the award fixes one entire sum for lands which the company have given notice to take, and for lands which the owner requires the company to take under section 93, the submission on the part of the company being only as to the former lands, the award is bad (N. Staffordshire Ry. Co. and Wood, 2 Ex. 244). The arbitrator has no power to decide upon the validity of a claim, but only to assess the compensation to be made in respect of it (R. v. London & N. W. Ry. Co., 3 E. & B. 443; 23 L. J. Q. B. 185; Chapman v. Monmouthshire Ry. Co., 2 H. & N. 267; 27 L. J. Ex. 97; Bradby v. Southampton Local Bd, 4 E. & B. 1014; 24 L. J. Q. B. 239; Re Newbold and Metropolitan Ry. Co., 14 C. B. N. S. 405; Rhodes v. Airedale Drainage Commrs., 1 C. P. D. 380). Arbitrators may, of course, find that the amount of damage is nil (Bradby v. Southampton Local Bd., 4 E. & B. 1014). And it would seem that the award itself is no evidence on the question whether the damage in respect of which it is made is actionable (Rhodes v. Airedale Drainage Commrs., 1 C. P. D. 380, 402). If the award assesses one sum for several claims, some of which are bad, the whole award is bad; and though the objection may not appear on the face of the award, it may be pleaded to an action upon the award (Beckett v. Midland Ry. Co., L. R. 1 C. P. 241. See Duke of Buccleuch v. Metropolitan Bd. of Works, L. R. 3 Ex. 300; ib. 5 H. L. 419). The evidence of an arbitrator or umpire to show the principle upon which he made his award is admissible, though the award may appear good on the face of it (Dare Valley Ry. Co., 6 Eq. 429; Duke of Buccleuch v. Metropolitan Bd. of Works, 8 Vict. c. 18, L. R. 5 Ex. 221; ib. 5 H. L. 418). A landowner cannot object to an award on the ground that an assumption favourable to him has been made, as that he is owner of the fee simple in possession (Bradshaw's Arbitration, 12 Q. B. 562; 5 R. C. 527). ss. 38, 39. An award which is good on the face of it is not invalidated by mistakes, whether Mistake of of law or of fact, such as a decision contrary to the evidence alleged to have been law or fact. made by an arbitrator, but not admitted by him (Hodgkinson v. Fernie, 3 C. B. N. S. 189; 26 L. J. C. P. 217; 27 L. J. C. P. 66; Bradshaw's Arbitration, 12 Q. B. 562; 17 L. J. Q. B. 362; Dinn v. Blake, L. R. 10 C. P. 388. See Duke of Buccleuch v. Metropolitan Bd. of Works, L. R. 5 Ex. 221, p. 232; and see Carr v. Metr. Board, 14 Ch. D. 807). But if the arbitrator himself admits a mistake, the award will be sent back to him (Mills v. Bowyer's Co., 3 K. & J. 66; Flynn v. Robertson, L. R. 4 C. P. 324). So too if it is shown that the arbitrator has exceeded his jurisdiction, the award may be sent back (In re Dare Valley Ry. Co., 6 Eq. 429. See Dinn v. Blake, L. R. 10 C. P. 388). the under 38. Before the promoters of the undertaking shall issue their Promoters of warrant for summoning a jury for settling any case of disputed taking to give compensation they shall give not less than ten days' notice to the notice before other party of their intention to cause such jury to be summoned, summoning a and in such notice the promoters of the undertaking shall state jury. what sum of money they are willing to give for the interest in such lands sought to be purchased by them from such party, and for the damage to be sustained by him by the execution of the works. It has never been decided whether the company can, without the landowner's Notice of consent, withdraw a notice of their intention to summon a jury (Fitzhardinge v. intention to Gloucester & Berkeley Ry. Co., L. R. 7 Q. B. 776, 782). It has been held that where the owner, proceeding under section 68, requires the company to summon a jury, the company may summon a jury without giving notice to the owner under this section (Railstone v. York, Newcastle & Berwick Ry. Co., 19 L. J. Q. B. 464; 15 Q. B. 404. This decision is not inconsistent with, though it is no doubt to a certain extent shaken by, Richardson v. S. E. Ry. Co., 20 L. J. C. P. 236; 11 C. B. 154; 15 C. B. 810, where it was held that section 51 is incorporated with section 68. But the earlier decision may be upheld on the ground that section 38 is expressly excluded by the terms of section 68, in cases to which that latter section applies, and it was followed in Hayward v. Metr. Ry. Co., 10 Jur. N. S. 418). summon a jury. 39. In every case in which any such question of disputed com- Warrant for pensation shall be required to be determined by the verdict of a summoning jury to be jury the promoters of the undertaking shall issue their warrant to addressed to the sheriff (a), requiring him to summon a jury for that purpose, the sheriff. and such warrant shall be under the common seal of the promoters [By 31 & 32 of the undertaking if they be a corporation, or if they be not a Vict. c. 119, s. 41, quescorporation under the hands and seals of such promoters or any tions of comtwo of them; and if such sheriff be interested (b) in the matter pensation may in dispute such application shall be made to some coroner of the be tried in county in which the lands in question, or some part thereof, shall be situate, and if all the coroners of such county be so interested, such application may be made to some person having filled the office of sheriff or coroner in such county, and who shall be then living there, and who shall not be interested in the matter in dispute; and with respect to the persons last mentioned preference shall be given to one who shall have most recently served either of the said offices; and every ex-sheriff, coroner, or ex-coroner T. M superior 8 Vict. c. 18, shall have power, if he think fit, to appoint a deputy (c) or 88. 40, 41. Provisions applicable to sheriff to apply to coroner. Jury to be summoned. assessor. (a) By the L. C. C. Act, 1869 (32 & 33 Vict. c. 18, s. 3), where any lands by the special Act authorised to be taken are situate within the city and liberty of Westminster, the high bailiff of the city and liberty of Westminster, or his deputy, is substituted for the sheriff throughout the enactments of the L. C. C. Act, 1845, relating to the reference to a jury. (b) The warrant to summon a compensation jury may properly issue to the sheriff of the county where the lands are situated, although the under-sheriff is a shareholder in the company issuing the warrant (Worsley v. South Devon Ry. Co., 20 L. J. Q. B. 254; 16 Q. B. 539). Thus where the company issue their warrant to the sheriff, and the under-sheriff, who is "interested," presides, the owner cannot recover from the company the costs of the inquisition or of proceedings for quashing it on certiorari, the improper conduct of the inquiry not being the act of the company (Ib.). Where there are two sheriffs, and one of them only is interested, the process should be directed to the other (Litsom v. Beckley, 5 M. & S. 144. Rex v. Warrington, 1 Salk. 152, and the case referred to in the report of Worsley v. South Devon Ry. Co., 20 L. J. Q. B. 254, at p. 257, note 4). (c) The deputy may, and apparently ought to, sign the name of the person he represents as his deputy (R. v. Perkin, 7 Q. B. 165; Stroud v. Watts, 3 D. & L. 799). In a case under a special Act, the provisions of which were similar to this, it was decided that the precept to the sheriff must be consistent with the notice to treat (Stone v. Commercial Ry. Co., 1 R. Ca. 375, 4 M. & Cr. 122). But if the hereditaments are differently described in the notice to treat and in the precept to the sheriff, such variance is an irregularity merely, and may be waived by appearing before the assessing jury, and proceeding with the trial after the objection has been taken and overruled (Ex parte Crawshaw Bailey, 1 L. & M. Bail Ct. Ca. 66). It would seem that the company would not be entitled to issue one precept to ascertain the compensation payable to an owner and his sub-lessees, as the claim of one person might be prejudiced by being mixed up with that of another (Abrahams v. Mayor of London, 6 Eq. 625, a case which arose upon the construction of the City Improvement Act, 1847). But upon the construction of the same Act it was held that there was no reason why the company should not include claims by the same person in respect of distinct properties or distinct interests in one precept (Starr v. Mayor of London, 7 Eq. 236). The judge who has to act under a præcipe or warrant, must act in strict accordance with it, and he has no discretion to depart from it in any respect (Abrahams v. Mayor of London, 37 L. J. Ch. 732; 6 Eq. 625). A mandamus to compel a sheriff to proceed to execute a precept to summon a jury, was issued when the sheriff, after having summoned a jury, and read the precept, was of opinion that it did not warrant him in taking their verdict, the court being of opinion that the sheriff's objection was not well founded (Walker v. London & Blackwall Ry. Co., 12 L. J. Q. B. 88). 40. Throughout the enactments contained in this Act relating to the reference to a jury, where the term "sheriff" is used, the provisions applicable thereto shall be held to apply to every coroner or other person lawfully acting in his place; and in every case in which any such warrant shall have been directed to any other person than the sheriff, such sheriff shall, immediately on receiving notice of the delivery of the warrant, deliver over, on application for that purpose, to the person to whom the same shall have been directed, or to any person appointed by him to receive the same, the jurors book and special jurors list belonging to the county where the lands in question shall be situate. 41. Upon the receipt of such warrant the sheriff shall summon a jury of twenty-four indifferent persons, duly qualified to act as Ss. 42-44. common jurymen in the superior courts, to meet at a convenient 8 Vict. c. 18, time and place to be appointed by him for the purpose, such time not being less than fourteen nor more than twenty-one days after the receipt of such warrant, and such place not being more than eight miles distant from the lands in question, unless by consent of the parties interested, and he shall forthwith give notice to the promoters of the works of the time and place so appointed by him. If the inquisition is quashed, the sheriff should proceed again under the old warrant (Horrocks v. Metropolitan Ry. Co., 19 C. B. N. S. 139; Tanner v. Swindon, &c. Ry. Co., 45 L. T. 209). 42. Out of the jurors appearing upon such summons a jury of Jury to be twelve shall be drawn by the sheriff, in such manner as impannelled. persons juries for trials of issues joined in the superior courts are by law required to be drawn, and if a sufficient number of jurymen do not appear in obedience to such summons the sheriff shall return other indifferent men, duly qualified as aforesaid, of the bystanders, or others that can speedily be procured, to make up the jury to the number aforesaid; and all parties concerned may have their lawful challenges against any of the jurymen, but no such party shall challenge the array. A verdict of a jury summoned under this section will not be set aside on the ground that some of the jurors were not qualified to act as such. The remedy is by challenge (In re Chelsea Waterworks Co., 10 Exch. 731). preside; wit nesses to be summoned. 43. The sheriff shall preside on the said inquiry, and the party Sheriff to claiming compensation shall be deemed the plaintiff, and shall have all such rights and privileges as the plaintiff is entitled to in the trial of actions at law and if either party so request in writing, the sheriff shall summon before him any person considered necessary to be examined as a witness touching the matters in question, and on the like request the sheriff shall order the jury, or any six or more of them, to view the place or matter in controversy, in like manner as views may be had in the trial of actions in the superior courts. The words in a special Act, that the party claiming compensation should be "deemed and entitled to the same rights and privileges as plaintiffs in actions at law," are intended only "to regulate the general course of proceedings, to remove doubts concerning the right to begin, and to show in other respects how the inquisition should be conducted" (Rex v. Gardner, 6 Ad. & E. 112, at p. 117; Reg. v. Sheriff of Warwickshire, 2 R. Ca. 661). The case before the jury must be consistent with the precept. All the proceedings must follow the terms of the præcipe or warrant (Stone v. Commercial Ry. Co., 1 R. Ca. 375, at p. 404; Abrahams v. Mayor of London, 37 L. J. Ch. 732; 6 Eq. 625). default. 44. If the sheriff make default in any of the matters herein- Penalty on before required to be done by him in relation to any such trial or sheriff and inquiry, he shall forfeit fifty pounds for every such offence, and jury for such penalty shall be recoverable by the promoters of the undertaking by action in any of the superior courts; and if any person summoned and returned upon any jury under this or the special Act, whether common or special, do not appear, or if appearing, he refuse to make oath, or in any other manner unlawfully neglect SS. 45-49. 8 Vict. c. 18, his duty, he shall, unless he show reasonable excuse to the satisfaction of the sheriff, forfeit a sum not exceeding ten pounds, and every such penalty payable by a sheriff or juryman shall be applied in satisfaction of the costs of the inquiry, so far as the same will extend; and, in addition to the penalty hereby imposed, every such juryman shall be subject to the same regulations, pains, and penalties as if such jury had been returned for the trial of an issue joined in any of the superior courts. Penalty on witnesses making default. Notice of inquiry. Notice waived. If the party the inquiry 45. If any person duly summoned to give evidence upon any such inquiry, and to whom a tender of his reasonable expenses shall have been made, fail to appear at the time and place specified in the summons without sufficient cause, or if any person, whether summoned or not, who shall appear as a witness refuse to be examined on oath touching the subject matter in question, every person so offending shall forfeit to the party aggrieved a sum not exceeding ten pounds. 46. Not less than ten days' notice of the time and place of the inquiry shall be given in writing by the promoters of the undertaking to the other party. This provision is for the benefit of the claimant, and may be waived by him. If a claimant has acted in such a way as to lead to an inference that he not only knew of the appointment, but acquiesced in it, he will not afterwards be allowed to rely upon the absence of the statutory notice (Long v. Glasgow Court House Commissioners, 26th May, 1871, 9 Macp. 768). 47. If the party claiming compensation shall not appear at the make default time appointed for the inquiry such inquiry shall not be further proceeded in, but the compensation to be paid shall be such as shall be ascertained by a surveyor appointed by two justices in manner hereinafter provided. not to pro ceed. Jury to be sworn. Sums to be paid for pur chase of lands and for damage to be assessed separately. 48. Before the jury proceed to inquire of and assess the compensation or damage in respect of which their verdict is to be given they shall make oath that they will truly and faithfully inquire of and assess such compensation or damage, and the sheriff shall administer such oaths, as well as the oaths of all persons called upon to give evidence. 49. Where such inquiry shall relate to the value of lands to be purchased, and also to compensation claimed for injury done or to be done to the lands held therewith, the jury shall deliver their verdict separately for the sum of money to be paid for the purchase of the lands required for the works, or of any interest therein belonging to the party with whom the question of disputed compensation shall have arisen, or which, under the provisions herein contained, he is enabled to sell or convey, and for the sum of money to be paid by way of compensation for the damage, if any, to be sustained by the owner of the lands by reason of the severing |