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Compensation

Cases,

the consideration money, for the purpose of fixing the ad-valorem duty; and consequently that such assignment to the company would be invalid.

Per Curiam.-Was it not the duty of the railway company to object before the sheriff's assessor, if they were dissatisfied with the finding of the jury; and can they now call upon this court to interfere so as to put the verdict already obtained by the claimant in jeopardy? It does not appear that any claim was distinctly made for the leasehold interest. The whole difficulty, as regards the company not being able to make a good title on account of the stamp duty, will be obviated by reciting all the circumstances in the assignment, and affixing to it a stamp adapted to the whole sum given by the jury. Ultimately, the rule was refused, upon the understanding that such an arrangement should take place; the claimant agreeing to pay the stamp duty appropriate to the whole sum given.

Rex v. The Justices of York, (1 A. & E. 828 ; 3 N. 8. M. 625).]- Where a statute

directed, that, in Mandamus, requiring defendants to allow the costs and expenses in- certain cases, a curred by Matthew Gawthorp, about an inquest holden for assessing ceeded in obtain

ing compensation damages, under stat. 3 & 4 Will. 4, c. lxii, being an act for improving before a jury the city of York. It appeared by the affidavits that the trustees lled to recover under the act, requiring a messuage belonging to Gawthorp, offered penses of such him £680 for the purchase, which offer he declined; and a jury sub- and of summoning sequently assessed the damages at £720. Gawthorp's attorney then such jury and wito made out a bill, as in the case of a common trial, containing charges the inquest", for attendances, brief, &c., and there was also an item as follows :- included charges, * Paid witnesses for their attendance and loss of time in surveying, attendance, and measuring, and valuing the property in question, and in attending as nesses, and the witnesses at the inquest.” Application was made to the defendants nary trial, but not to allow the above costs; but the defendants, conceiving that the sta- surveyors, who tute did not authorise the allowance of such costs, refused the appli- nesses examined cation. The statute contained the usual powers, enabling the trustees to take property, and for assessing compensation; and, by sect. 31, in case any such jury shall give a verdict for more money for compensation, &c., than shall have been offered by the trustees before the summoning of such jury," then the costs and expenses of such notice, precept, and of summoning and returning such jury and witnesses, and also of the said inquest, (such costs and expenses to be settled and allowed by any justice, &c.), shall be paid by the trustees out of the money arising by virtue of this act, and shall be recovered by the

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person entitled thereto by distress,” &c.; but if any such jury shall give a verdict for no more or for less than shall have been offered, as aforesaid, by the trustees, “then one moiety of the costs and expenses aforesaid shall be borne and paid by each party,” &c.

Lord Denman, C. J.-The statute should be liberally construed, and the trustees should pay this price for the great power which is given to them. The words are, “also of the said inquest,” which must mean something besides that denoted by the preceding words, and I cannot draw any line. I think they must mean all costs whatsoever. It is like the case of a trial, where one party obtains a verdict. There are certainly later parts in this section which appear to be rather inconsistent with the earlier part; but I do not think that we are bound to reconcile them : and, at any rate, they have no distinct bearing upon the present question. The costs, therefore, of the brief and witnesses are to be allowed, but not the costs of surveyors. Taunton, J.-With respect to the costs of surveyors, I should pause before saying that costs are to be allowed for them, quà surveyors ; but if they have been witnesses, they will be on the same footing as others. Littledale and Williams, Js., concurred. Rule absolute.

But where, in a
similar case, the
statute directed,
that a party should
be entitled to re-
ceive all the
costs of summon-
ing such jury, and
the expenses of
witnesses-Held,

Rex v. Gardner, (6 Ad. & E. 112; 1 Neo. & P. 308).]-Mandamus, on the application of Mr. Norreys, requiring the coroner to review his taxation of a bill of costs in respect of an inquisition taken before him under 4 & 5 W.4, c. xxv, an act relating to the Wigan and Preston

Railway. By sect. 66, the sheriff or coroner was directed to summon a that the party was jury to assess compensation in case of disagreement respecting the sum general costs of

to be paid for compensation: “Provided always, that, in such inquiry, the inquiry.

the person claiming compensation shall always be deemed to be plaintiff, and entitled to the same rights and privileges as plaintiffs in actions at law are entitled to.” Sect. 71 enacts, that, if the jury should give a larger sum than the company had previously offered them, “all the costs of summoning such jury, and the expenses of witnesses, shall be defrayed by the company, and such costs and expenses shal} be settled and determined by the said sheriff,” &c.; but, if the verdict shall be for the same or a less sum, one moiety of the said “costs and expenses” shall be paid by the party disputing with the company, and the remainder by them. Sect. 72 enacts, that all parties with whom the company shall have any dispute, shall enter into a bond to prosecute their complaint, “and to bear and pay their proportion of the costs and expenses of summoning and returning such jury,

Compensation

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and of the summoning and attendance of witnesses, in case any part of such costs and expenses shall fall upon them.”

The facts were as follows:—The company gave notice to Norreys that they required certain of his lands; but the parties did not agree as to price. A jury was summoned before the coroner to assess compensation, and the value of the land was assessed at 30621., and the compensation for damage at 9371. The solicitors employed by Norreys made out their bill of costs respecting the negotiations for the purchase, and also of the inquisition, including the charge of surveyors and valuers employed by Norreys for valuing the premises, and for their attendance at Preston as witnesses on the inquisition, the costs of drawing the brief, counsel's fee, and the solicitors' charges for attendance. The coroner, in taxing the bill, allowed the surveyors' travelling expenses, and a certain amount per day for their loss of time in viewing and in attending the inquisition. He also allowed the expenses of the other witnesses, some charges for summonses to them, and his own expenses ; but he disallowed all the further articles of demand above specified. Lord Denman, C. J.-I feel no difficulty in saying, that, if there were any words to warrant it, I should not scruple to give these clauses the largest sense that has been contended for. It is extremely unjust that no provision should have been made for the general costs in a case like this; but if the statute has not made it, we cannot supply the defect (f). Sections 71 and 72 evidently fall short of what is demanded; and, therefore, we must, though with regret, say, that the mandamus cannot go. In Rex v. The Justices of York (9), we did not strain the words of the local act. That provided for the costs, not only of notices and precepts, and summoning and returning the jury and witnesses, but “ also of the said inquest,” which words included the trial and the expenses incurred upon it. The words in sect. 66, that a party claiming compensation shall be “deemed to be plaintiff, and entitled to the same rights and privileges as plaintiffs in actions at law,” were clearly intended, not for the purpose which has been attributed to them, but to regulate the general course of proceedings, to remove doubts concerning the right to begin, and to shew, in other respects, how the inquisition should be conducted. Littledale, Williams, and Coleridge, Js., concurred. Rule discharged.

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Same decision as in R. v. Gardner, ante, 256.

Reg. v. The Sheriff of Warwickshire, (2 Railway Cases, 661).]-Mandamus requiring the sheriff of Warwick to review the taxation of the costs of an inquisition held before him, under 4 Will. 4, c. xiv, for the purpose of assessing compensation to W. Parkes, in respect of land belonging to him, which had been taken for the purposes of the act by the Birmingham and Gloucester Railway Company. It appeared that Parkes was the owner of certain lands taken by the company for the purposes of their act. Parkes having complained of the injury thereby done to his property, the usual precept was issued for ascertaining the damages, and the jury assessed them at 5201. The sheriff subsequently taxed the costs under the 83rd section of the act; and he allowed, amongst other items, for attendances and letters of the plaintiff's attorney, and twelve guineas each for the surveyors, (who attended one day, but were not called as witnesses), amounting altogether to 781. 68. It was now contended, on behalf of the company, that the sheriff had no power to allow these items. The following clauses in the statute were referred to:-Sect. 78 directs the sheriff to impannet a jury in cases of disagreement as to the amount of compensation which ought to be paid by the company: “Provided always, that, in such inquiry, the person claming compensation shall be plaintiff, and shall have all such rights and privileges as plaintiffs in actions at law are entitled to.” Sect. 83 enacts, “ that, in every case in which a verdict shall be given for a greater sum than shall have been previously offered by the company, all the costs of summoning such jury, and the expenses of witnesses, and of the bond to be entered into as after mentioned, shall be defrayed by the company, and such costs and expenses shall be settled and determined by the said sheriff,” &c.; “but if the verdict shall be given for a less sum than shall have been previously offered by the company, one moiety of the said costs and expenses shall be paid by the party with whom the company shall have such dispute, and the remainder by the company,” &c. Sect. 84 enacts, “ that all parties who shall require a jury to be summoned as aforesaid shall enter into a bond to prosecute their complaint, and pay their proportion of the costs and expenses of summoning and returning such jury, and taking such verdict, and of the summoning and attendance of witnesses, in case any part of such costs and expenses shall fall upon them. Williams, J.-It might, perhaps, be successfully contended, that the larger words of the 84th section are, to a certain degree, to be considered as

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extending the language of the preceding section; but, admitting that such should be deemed an extension of the other sections, it seems to me impossible to carry it to the extent contended for in the argument. In this bill are considerable charges for payments made to surveyors, who have been instructed, I presume, to make plans, or something useful for the purposes of the investigation, as those parties do not appear to have been called as witnesses; nor is it pretended that they received this charge quâ witnesses, but simply in the character of surveyors, which is not at all within the meaning of the act, nor within the language, most certainly, of the larger and more extended clause. The case of Rex v. Gardner (h) plainly shews, that, though the judges were anxious, if possible, to travel out of the express words of the act, they felt themselves bound by them; and we must act in the same manner. Coleridge, J.-If there had been any words like those in Rex v. The Justices of the City of

York (i), those words would have relieved the case from all difficulty; and we might have adopted the view urged upon us, as the words “ costs of the inquest” would have been, in common understanding, the costs of the inquiry, and that would have let in the general expenses, as in an ordinary case; but there are no such words here. It appears to me, that the case of Rex v. Gardner is conclusive. But even if that case had never existed, we have merely to deal here, not with the hardship or injustice of the case ; but the simple question is, whether the charges here allowed can fairly come within the words of those sections? It seems to me quite impossible that they can, even taking them as suggested, and which is giving the utmost benefit to the applicant, that is, taking the words of the 84th section to be the governing words, and not the more limited words in the 83rd section. Wightman, J., concurred. Rule absolute.

(h) 6 A. & E. 112; ante, 256.

(i) 1 A. & E. 828; ante. 255.

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