not allow a party to make a second application for the writ, if he has previously applied to the Court upon insufficient affidavits (z).

It will, therefore, be proper that all defects in the proceedings should be positively sworn to, and, if possible, a copy of the inquisition should be annexed; or, if that cannot be procured, the party making the affidavit should swear directly to his information and belief, as to its contents.

Thus, in The Queen v. The Manchester and Leeds Railway Company (a), a party sought to set aside an inquisition on the ground that some of the lands taken by the company, and for which damages were given by the inquisition, were not included in the schedule annexed to the railway act, neither had two justices certified that the omission proceeded from mistake, and that, consequently, the company had no right to take the land; and the application was founded on an affidavit made by the owner of the lands. The Court refused the application for a certiorari in consequence of the defective mode of stating the objections to the inquisition. Lord Denman, C. J., said, "We should issue the certiorari, if it distinctly appeared that the jury had comprehended in their verdict anything which they were not authorised to include. But we cannot assume that the fact is so, unless the affidavits positively state it. They should either set out the inquisition, or shew that the deponent has no copy, and then distinctly state that he is informed of, and believes, the facts raising the objection. Here all that appears as to the inquisition is, that the party objects' that certain deficiencies exist. It is said that this is an objection upon oath; but suppose he had actually said, I

(2) Bodfield v. Padmore, 5 A. & E. 785, n. (a); R. v. Manchester and Leeds Railway Company, 8 A. & E.

413; R. v. Pickles, 3 Q. B. 599, n.

(a).

(a) 8 A. & E. 413.

Certiorari to re

move Inquisition.

Certiorari to remove Inquisition.

object upon oath,' that would merely be a solemn form of stating the objection. Then, as to the authority of the company to take the lands, and of the jury to assess the value. This should be distinctly negatived. Here all that is positively sworn to is the description in the books of reference, which is alleged to be insufficient, and the statement by the applicant in his protest, that the lands were not properly described in the act or schedule. It should be shewn positively that the justices have not certified; for their certificate would give the power. To assert, generally, that it is not the fact that the statute authorises the proceeding, is not enough; it should be stated how it fails to do so. I disclaim the principle, that we are to issue a certiorari to bring up the inquisition, on the ground that there may probably be defects; we must clearly see that facts do exist, which will bring the defects before us."

Lastly, it is important to remember that any defect or want of jurisdiction may be shewn by affidavit. The rule on this subject is very clearly laid down in a late case (b); and, by the substitution of the word " sheriff" for "magistrates," the judgment of the Court of Queen's Bench will be applicable to the subject now under consideration. "As the inquiry is open, ex concessis, to see whether the case was within the jurisdiction of the magistrates, it is contended that affidavits are receivable for the purpose of shewing that they acted without jurisdiction; and this is, no doubt, true, taken literally: the magistrates cannot, as it is often said, give themselves jurisdiction merely by their own affirmation of it. But it is obvious that this may have two senses: in the one it is true, in the other, on sound principle, and on the best considered authority, it will be found untrue. Where the charge laid before the magistrate, as

(b) R. v. Bolton, 1 Q. B. 66.

stated in the information, does not amount in law to the offence over which the statute gives him jurisdiction, his finding the party guilty by his conviction in the very terms of the statute would not avail to give him jurisdiction; the conviction would be bad on the face of the proceedings, all being returned before us. Or if, the charge being really insufficient, he had misstated it in drawing up the proceedings, so that they would appear to be regular, it would be clearly competent to the defendant to shew to us by affidavits what the real charge was, and, that appearing to have been insufficient, we should quash the conviction. In both these cases a charge has been presented to the magistrate, over which he had no jurisdiction; he had no right to entertain the question, or commence an inquiry into the merits, and his proceeding to a conclusion will not give him jurisdiction. But, as in this latter case we cannot get at the want of jurisdiction but by affidavits, of necessity we must receive them. It will be observed, however, that here we receive them, not to shew that the magistrate has come to a wrong conclusion, but that he never ought to have begun the inquiry. In this sense, therefore, and for this purpose, it is true that affidavits are receivable. But, where a charge has been well laid before a magistrate, on its face bringing itself within his jurisdiction, he is bound to commence the inquiry: in so doing he undoubtedly acts within his jurisdiction; but, in the course of the inquiry, evidence being offered for and against the charge, the proper, or, it may be, the irresistible conclusion to be drawn may be, that the offence has not been committed, and so that the case in one sense was not within the jurisdiction. Now, to receive affidavits for the purpose of shewing this, is clearly in effect to shew that the magistrate's decision was wrong if he affirms the charge, and not to shew that he acted without jurisdiction, for they would admit that, in every stage of the in

Certiorari to re

move Inquisition.

Certiorari to remove Inquisition.

The effect of the verdict and judg.

ment.

quiry up to the conclusion, he could not but have proceeded; and that, if he had come to a different conclusion, his judgment of acquittal would have been a binding judgment, and barred another proceeding for the same offence. Upon principle, therefore, affidavits cannot be received under such circumstances. The question of jurisdiction does not depend on the truth or falsehood of the charge, but upon its nature: it is determinable on the commencement, not at the conclusion, of the inquiry; and affidavits, to be receivable, must be directed to what appears at the former stage, and not to the facts disclosed in the progress of the inquiry."

Having thus endeavoured to point out what defects in the inquisition may still be taken advantage of by certiorari, and the mode of applying for the writ, we shall turn to a different, but equally important branch of our inquiry.

It may happen that the proceedings taken on the inquisition before the sheriff, are strictly regular in form and substance, and yet, through the perverseness or mistake of jurymen, or some other similar miscarriage, gross injustice may be done in deciding the question of compensation submitted to the jury. In such a case, it is evident that certiorari will not lie to remove the inquisition, inasmuch as the writ is expressly taken away by the statute, and there is no want of jurisdiction, or any malversation on the part of the presiding officer (c).

Is, then, the party aggrieved without any remedy? Upon this important question a late case would be expressly in point, if the Lands Clauses Consolidation Act had been framed in the same language as the special act, in the case referred to. In The Queen v. The Eastern Counties

(c) See ante, 306.

Railway Co. (d), an application was made for a mandamus commanding the defendants to shew cause why they should not issue a precept to the sheriff to summon a jury to assess damages to one Finch. It appeared from the affidavits that Finch was tenant from year to year of premises near Chelmsford; that the fee-simple of a portion of those lands was purchased for the purpose of constructing the railway thereon; and that the company also temporarily used a portion of the remainder of the land, by passing to and fro, with carts, horses, and workmen, as they were empowered to do under the special act. Finch having claimed compensation, a precept was issued by the company to the sheriff, to empannel a jury "to assess satisfaction, recompense, or compensation, for damage before that time done and sustained by the claimant in and about the lands now or formerly in his occupation, &c., by reason of the execution of any of the works by the said acts authorised, at, upon, or near to the said lands, or for the future, temporary or perpetual, or for any recurring damage to be done to, or sustained by him as aforesaid." At the trial, Finch proposed to give evidence of the damage done to the growing crops, by the construction of the railway; and also of damage done by the temporary user of a portion of his land; and he offered evidence to shew that a temporary road had been made over his meadow, destroying the pasturage, but that the meadow had, in other respects, always remained under his control. The under-sheriff, however, rejected this evidence, upon the ground, that, by the act, authority was given to justices to award damages in respect of the temporary occupation of any land. It was urged that this provision was not applicable, as there had not been a tem

The effect of the Verdict and Judg ment.

(d) 2 Dowl., N. S., 945; S. C., 12 Law Journ., Q. B., 271; 3 Railw. Cases, 466.