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Ceritorari to remove Inquisition.

in pursuance of it. The fair import of Regina v. The Bristol and Exeter Railway Company is, that, where the act done is locally and visibly out of the jurisdiction, it is then the act of a stranger; and we cannot consider it any court at all, but leave the party to their remedy by an action of trespass; as, if an inquisition were held in Bedfordshire, to assess the value of lands in another county; but this is something sought to be shewn without the jurisdiction by extrinsic evidence, and that, too, where there is a clause in the act which, by enacting that it shall be a record, makes the sheriff's return alone evidence; and therefore a wrongdoer would be protected, if he could induce the sheriff to make a false return ()." And Patteson and Coleridge, Js., without going to the extent of overruling The Queen v. The Bristol and Exeter Railway Company, intimated that it was not necessary to justify every thing that might have been said by the court in that case.

It may, therefore, perhaps be assumed that the rule now applicable to the removal of inquisitions is that which has been already laid down. The application of that rule is, however, not unattended with difficulties. A very learned judge (k) observed, in a late case, "Many attempts have lately been made-indeed there is a perpetual endeavour to get rid of clauses which take away certiorari, by impugning the jurisdiction. Such attempts we ought carefully to watch, otherwise the clauses would be rendered nugatory." And the Court of Queen's Bench, acting on this principle, have decided, that where an inquisition had been taken before a clerk to the under-sheriff, and an assessor appointed, pro hâc vice, by the sheriff, they not being persons specially named in the act, there was no ground for

(i) See post, 323.

Cheltenham Commissioners, 1 Q.

(k) Patteson, J., in R. v. The B. 478.

granting a certiorari (1), inasmuch as this deviation from the requisites of the act was a mere irregularity, and not an excess of jurisdiction; and the Court intimated, that, as the proceeding duly originated in a warrant delivered to the sheriff, a subsequent' act irregularly done was not enough to destroy the jurisdiction. If it were, then the examination of a single witness, without swearing him, would be sufficient to vitiate the inquisition.

So, where the certiorari was taken away, and the company issued a warrant to the sheriff, requiring him to assess compensation to the claimant, "for damages (if any) which shall have been done by reason of the execution of the works," it was contended that the warrant was void, and that therefore the jurisdiction never attached; but the Court refused a certiorari, as the warrant (though it ought not to have contained the words "if any ") gave jurisdiction (m).

It has also been decided, that a party who seeks to set aside an inquisition must come into court with clean hands, for he may so conduct himself as to be held incompetent to take an objection to the inquisition, which would be perfectly good in itself under ordinary circumstances. This rule has been applied in a case where a party treated land as his own freehold when a negotiation for purchase was going on; and he was held to be incompetent to set up as an objection that the lands belonged to his wife, and were copyhold, and that the inquisition awarded no compensation to the parties who held these interests in the land. He was also held to be estopped from objecting, that, by the inquisition, the company were directed to commit a trespass, by making a hedge on other

(1) R. v. The Sheffield Railway Company, 11 A. & E. 194, 1 Railw. Cas. 537. See also Corrigal v. The London and Blackwall Railway Com

pany, 5 Man. & G. 247.

(m) R. V. The Lancaster and Preston Junction Railway Company, 14 Law Journal (Q. B.) 84.

Certiorari to re

move Inquisition.

Certiorari to remove Inquisition.

land belonging to the complainant, it not being positively stated in the affidavit that less compensation had been given to him in consequence; and it appearing, that, when he demanded compensation, he had required a certain sum to be given to him, and also made it a condition that the company should erect the fence in question (n).

With respect to the form of the inquisition, it is to be observed, that, inasmuch as there is to be an extraordinary jurisdiction exercised by the sheriff, everything which is made preliminary by the act of Parliament ought to be set out on the face of the inquisition (0).

This question as to the necessity of shewing jurisdiction on the face of the inquisition, was much discussed in a late case in Error (p); and, by referring to this case, all the authorities on the subject will be found collected and arranged in admirable order. The Court, in delivering the judgment, said, "The authority given by the statute to the railway company to take the lands of individuals for the purposes of the act, where it is exercised adversely, and not by consent, is undoubtedly an authority to be carried into effect by means unknown to the common law. And it is, therefore, contended, on the part of the plaintiff, that the same rule will apply to these proceedings which is held to apply to all other inferior jurisdictions, that, unless sufficient appears upon the face of the proceedings themselves to shew that the jurisdiction exists, such proceedings are

(n) R. v. The Committee for South
Holland Drainage, 8 A. & E. 429.

(0) Per Parke, B., in Doe d.
Payne v. The Bristol and Exeter
Railway Company, 6 Mee. & W.339.
See also R. v. Bagshaw, 7 T. R. 363;
R. v. The Mayor of Liverpool, 4
Burr. 2244; R. v. The Trustees of

Norwich Roads, 5 A. & E. 563, S.C. 1 N. & P. 32; R. v. South Holland Drainage, 8 A. & E. 429; R. v. Croke, 1 Cowp. 26; R. v. Manning, 1 Burr. 377.

(p) Taylor v. Clemson, 2 Q. B. 978, S. C., 2 Gale & D. 346.

altogether void. Admitting such to be the rule of law, and not further relying on the special finding by the jury, that all which was necessary to give jurisdiction under the statute, did really and in fact take place, than to observe that the whole objection is confined to the face of the proceedings themselves, the question is, whether, either expressly or by necessary intendment, the proceedings do of themselves shew that they were warranted by the statute. And we are of opinion, that, upon fair and necessary intendment, the jurisdiction appears upon the proceedings themselves."

This case decided, that, if the warrant to the sheriff is annexed to the inquisition, they may be considered as one entire proceeding; and any deficiency existing in the one may be aided by reference to the other, on the ground that as no particular form is prescribed by the statute, it is sufficient if the jurisdiction is substantially made apparent upon the face of the documents, or may be inferred therefrom (g).

But, although the warrant may be thus referred to, it will probably be deemed desirable, in all cases, to shew, on the face of the inquisition itself, that the proper notices were given by the parties upon whose application the warrant to the sheriff was issued (r). It cannot, however, be objected, that it does not appear, on the inquisition, that the whole of the capital had been subscribed for, although, by the terms of the statute, the compulsory powers to take lands could not be resorted to until such a subscription was made (s). Nor need it appear that a certificate of two jus

(g) See Taylor v. Clemson, 2 Q. B. 978; S. C., 2 Gale & D. 346.

(r) See ante, 158; also the form of the Inquisition, No. 24, ante, 299. If the party who demands the compensation originates the proceeding under sect. 68 of stat. 8 Vict. c. 18,

post, App., 130, it will be easy to
adapt the form to the facts of the par-
ticular case.

(s) Doe d. Payne v. The Bristol
and Exeter Railway Company, 6
Mee. & W. 320; 2 Railw. Cases,
75, S. C.

Certiorari to re

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Certiorari to remove Inquisition.

tices had been obtained, to certify that an erroneous description of lands in the book of reference proceeded from mistake (t).

The writ of certiorari being thus taken away, the objections, which may be raised to the proceedings before the sheriff, are limited, as already stated, to those cases where it appears that the proceeding relates to some matter over which the sheriff has no jurisdiction, or unless the proceeding itself is impeached as being invalid on the ground of malversation.

We shall now say a few words on the mode of proceeding to apply for a certiorari (u). And, first, the statutory regulations, limiting a time for issuing writs of certiorari and requiring notice to be given of application for them, and recognisance to be entered into before allowance, do not apply to inquisitions or other proceedings before sheriffs (x).

It is extremely important that the affidavits should be carefully prepared (y). If any important fact be stated in uncertain language, the Court will refuse the writ. And any failure of this kind is the more serious in its results, in consequence of a rule of practice, which, if not universal and inflexible, is as nearly so as possible; i. e. that the Court will

(t) Taylor v. Clemson, 2 Q. B. 978; S. C., 2 Gale & D. 346.

(u) It seems, the rule to shew cause why the writ should not issue may be directed to the Company, although the inquisition be out of their custody. R. v. Manchester and Leeds Railway Company, 1 Per. & Dav. 164; but see S. C., 8 A. & E. 424, note (a).

(x) See 5 Geo. 2, c. 19, s. 2; 13 Geo. 2, c. 18.

(y) The affidavits in support of

the application for the writ must be intitled "In the Queen's Bench" only, and sworn in Court, before a judge or commissioner for taking affidavits in the Queen's Bench. The certiorari is directed to the parties taking the inquisition, adapted to the particular case, and describing the inquisition as in the rule of Court, and is to be issued as other writs on the Crown side. Corner's Practice, 91.

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