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verticale e porary occupation, but a mere user of the land; but the

presiding Judge withdrew this branch of the case from the consideration of the jury. A further objection was raised that the verdict was against the evidence. Finch had originally claimed £542; by his witnesses he proved damage to the amount of £411. The company, by the witnesses called for them, shewed that the damage was 1521. 10$. ; but the jury, nevertheless, awarded only £49.

Upon these facts it was contended, that, if the Court saw that obvious injustice had been done, it would not hesitate to put a party in a position to maintain his rights.

After taking time to consider the question, Coleridge, J., delivered the following judgment:—“ This was an application for a rule, calling upon the Eastern Counties Railway Company to shew cause why a writ of mandamus should not issue, commanding them to issue a precept to the sheriff to summon a jury, to assess damages for injury alleged to have been sustained by reason of the works of the company's railway. It appeared, that, in point of fact, such a precept had already issued, and that a jury had sat under it, to assess damages in respect of all the causes of damage, for which compensation is now sought to be obtained, and that they returned a verdict for the sum of £49. It is said, that this is a sum grossly under the amount which the party is entitled to claim; that he proved damage to the amount of nearly £500, and the insufficiency of the verdict is attributed to two causes: one, that the sheriff excluded one entire set of damages from the consideration of the jury, on the ground that they were properly recoverable under a particular section of the company's act before a justice; another, that although the claimant proved a much larger amount of damage than that found, the jury, from some personal cause, chose to give a verdict for an inadequate amount. It was admitted, that a direct motion for a new

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trial could not be marle, and, no doubt, that was a proper The effect of the admission; for, the proceeding is the creature of the act of Parliament; and the section of the act, by which it is directed that such a proceeding shall be had, makes the verdict final; but, even if this be not so, I am at a loss to see what machinery this Court has to direct a new trial. But it was said, that the Court might direct a second precept to issue. It appears to me, however, that, if I acceded to such a proposition, I should only be doing a thing indirectly, which cannot be done directly. If a mandamus should go, the return would be that a precept has been already issued, and the only answer to such a return would be · Yes! but justice has not been done under that precept;' so that, in point of fact, it would still come to the same thing, that the Court would be called upon to grant a new trial.

I am informed that a like application has been made in the full Court in

case, and that it was refused. I do not know whether injustice has been done or not; but, even if it has, I have no power to interfere, and no rule, therefore, can go

another

in this case."

The author has not succeeded in finding any report of the case mentioned by the learned Judge; and, therefore, it only remains to point out the differences already referred to, which exist between the special act in Finch's case, and the Lands Clauses Consolidation Act. By the former, it is enacted, that the verdict and judgment thereon shall be binding and conclusive to all intents and purposes upon all corporations and persons whatsoever (e). In the latter act the words of the statute are as follows($): “The sheriff, before whom such inquiry shall be held, shall give judgment for the purchase-money or compensation assessed by such jury, and the verdict and judgment shall be signed by

(e) This appears in the report in 12 Law Journ., Q. B., 271.

(f) See 8 Vict. c. 18, post, App., 127.

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verdienen die porary occupation, but a mere user of the land; but the

presiding Judge withdrew this branch of the case from the consideration of the jury. A further objection was raised that the verdict was against the evidence. Finch had originally claimed £542; by his witnesses he proved damage to the amount of £411. The company, by the witnesses called for them, shewed that the damage was 1521. 108.; but the jury, nevertheless, awarded only £49.

Upon these facts it was contended, that, if the Court saw that obvious injustice had been done, it would not hesitate to put a party in a position to maintain his rights.

After taking time to consider the question, Coleridge, J. delivered the following judgment:-“This was an applica tion for a rule, calling upon the Eastern Counties Railwa Company to shew cause why a writ of mandamus shoul not issue, commanding them to issue a precept to the sht riff to summon a jury, to assess damages for injury allege to have been sustained by reason of the works of the con pany's railway. It appeared, that, in point of fact, such precept had already issued, and that a jury had sat under to assess damages in respect of all the causes of damage,

f which compensation is now sought to be obtained, and th they returned a verdict for the sum of £49. It is sa that this is a sum grossly under the amount which the pai is entitled to claim; that he proved damage to the amou of nearly £500, and the insufficiency of the verdict is att buted to two causes: one, that the sheriff excluded one tire set of damages from the consideration of the jury, the ground that they were properly recoverable unde particular section of the company's act before a justice; other, that although the claimant proved a much lar amount of damage than that found, the jury, from se personal cause, chose to give a verdict for an inadeqı amount. It was admitted, that a direct motion for a :

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the sheriff, and, being so signed, shall be kept by the clerk of the peace among the records of the general or quartersessions of the county in which the lands, or any part thereof, shall be situate, in respect of which such purchase-money or compensation shall have been awarded; and such verdicts and judgments shall be deemed records, and the same, or true copies thereof, shall be good evidence in all courts and elsewhere."

It therefore appears, that, in the Consolidation Act, the Legislature seems purposely to have omitted the very expressive language which is to be found in The Eastern Railway Company's Act, as also in many other special acts passed previously to the 8 Vict. c. 18. Whether the omission will enable persons aggrieved to obtain a new trial(9), or other remedy, under circumstances similar to those detailed in the case above referred to, is a question which can only be satisfactorily determined by a judicial decision.

It seems to be a peculiar anomaly, that a new trial may be had to correct any miscarriage which may occur in trials at Nisi Prius, where the judges of the superior courts preside, whilst the very important questions which arise in

(g) The Lands Clauses Consoli. possesses no machinery to direct a dation Act also differs from ordinary new inquiry; and, further, as the special Railway Acts in another par- statute does not proceed to declare ticular, inasmuch as s. 43 enacts, that the Company shall have the " that the sheriff shall preside on the rights and privileges of defendants, said inquiry, and the party claiming such a construction of the statute compensation shall be deemed the would give an advantage to the party plaintiff, and shall have all such rights claiming compensation. Where the and privileges as the plaintiff is en- sheriff improperly refused to proceed titled to in the trial of actions at law." on an inquiry, and the claimant afterIt may, perhaps, be suggested, that wards obtained a mandamus, it has these words, if understood in an been decided that the Company were extended sense,

would entitle the not liable to pay the costs incurred by claimant to a new trial; but as Cole- supporting the decision of the sheriff, ridge, J., observed, in Finch's R. v. The Sheriff of Middlesex, 5 case, the Court of Queen's Bench Q. B. 365 ; 3 Railw. Cases, 396.

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