prerogative Sect. 21. will not be granted if the Court are of opinion that an action of mandamus is as convenient a mode of proceeding as by the writ. Reg. v. Lambourn Valley Railway Company, 22 Q. B. D. 463. The above case of Reg. v. Lambourn Valley Railway Company was explained in Reg. v. London and North Western Railway Company [1894], 2 Q. B. 512, at p. 518. It would unduly narrow the powers of the Court to say that it is an answer to any application for a prerogative writ of mandamus that a mandamus could have been granted for the same purpose in an action. A prerogative writ of mandamus ought to be granted for the purpose of speedy justice or other reasons, in which it would be uncertain whether it was possible to achieve the same results in any other way, and if it were possible would take much time and difficulty. Motion for a prerogative writ of mandamus would, therefore, as being the more expeditious remedy, appear to be the proper remedy under this section, as, according to the above case, it was held to be the proper remedy to compel promoters to take up an award under section 35. The application for a prerogative writ of mandamus cannot be made by a party in person. Counsel must be instructed, and the same rule holds on appeal. It would appear doubtful whether the rule nisi can be obtained in person. Reg. v. Mayor of Liverpool, 7 Times Law Rep. 592. No second application can be made for a prerogative writ after the first has been discharged. Reg. v. Mayor of Bodmin [1892], 2 Q. B. 21. An action of mandamus will lie when the promoters have served their notice to treat, even although no pecuniary damage has been caused by the delay, and it may or may not be joined with a claim for damages. Fotherby v. Metropolitan Railway Company, L. R. 2 C. P. 188; Guest v. Poole and Bournemouth Railway Company, L. R. 5 C. P. 553; Morgan v. Metropolitan Railway Company, L. R. 4 C. P. 97. Section 25, sub-section 8, of the Judicature Act, 1873, also enables the Courts to grant a mandamus by an interlocutory order in an action in cases that appear just and convenient, but it will not be granted to compel a company to proceed to assess compensation unless it is shown that real injury will be occasioned by the delay, and the matter will usually be postponed until the trial. Widnes Alkali Company v. Sheffield and Midland Railway Company's Committee, 37 L. T. 131. The mandamus provided by 25th section of the Judicature Act, subsect. (8) is confined to cases where an action will lie, i.e., where a legal wrong has been done. It will not, therefore, be granted to compel a local board to perform a public duty. In such a case the prerogative writ would be the proper remedy. Glossop v. Heston Local Board, 12 Ch. D. 102, 116, 122, and see Baxter v. London County Council, 63 L. T. 767. It is not a good answer to an action for mandamus that the capital has not been subscribed under section 16. Guest v. Poole and Bournemouth Railway Company, L. R. 5 C. P. 553, and see notes to section 16. Before the court will issue a mandamus there must be something in the nature of a demand by the landowner and a refusal by the company. A neglect to issue a warrant after demand made upon the solicitors of the company is a sufficient refusal to entitle the claimants to a writ. In re Senior, 18 L. J. Q. B. 333. Sect. 22. Disputes where the elaimed does not 22. If no agreement be come to between the promoters of the undertaking and the owners of or parties by this Act as to comenabled to sell and convey or release any lands taken or re- pensation quired for or injuriously affected by the execution of the amount undertaking, or any interest in such lands, as to the value of such lands or of any interest therein, or as to the compen- exceed 507. sation to be made in respect thereof, and if in any such case settled by the compensation claimed shall not exceed fifty pounds, the two jussame shall be settled by two justices. Agreement.-As to purchase of lands by agreement, see sections 6--15. "Injuriously Affected."-This section, apart from any proviso in the special Act, gives a right to compensation for the injurious affection of land by the execution of the works when no other land has been taken, and the amount does not exceed 50l. Section 68 gives it where the amount is above that sum. Reg. v. St. Luke's, L. R. 6 Q. B. 572, p. 575; L. R. 7 Q. B. 148, p. 152. When land is taken, compensation is given for the injurious affection of land held therewith by section 63. "Shall not Exceed Fifty Pounds."-Justices have power under section 121 to settle claims for a higher amount when possession of land is taken from a tenant having no greater interest than for a year or from year to year. (See notes to that section.) Although this section gives powers to justices to settle the amount of the value of the lands taken, and of the compensation to be paid for injuriously affecting, the two claims cannot be split up so as to lead to two proceedings. Bexley Heath Railway Company v. North [1894], 2 Q. B. 579, at 585. It is the amount claimed that determines the jurisdiction and not the amount to which the person is entitled. Read v. Victoria Station and Pimlico Railway Company, 32 L. J. Ex. 167. Although the amount claimed be under 50%., the parties can agree to have the question settled by arbitration. Collins v. South Staffordshire Railway Company, 21 L. J. Ex. 247. "The same shall be settled by Two Justices."-As to justices generally, see definition section 3 and note. If the justices refuse to settle the amount, they can be compelled to do so by mandamus. Reg. v. Kennedy [1893], 1 Q. B. 533; R. v. Stone, L. R. 1 Q. B. 529; R. v. Vaughan, L. R. 2 Q. B. 190. The proceeding must be by motion in the Queen's Bench Division for a prerogative writ, as the action of mandamus will not lie against justices even with their consent. Baxter v. London County Council, 63 L. T. (N.s.) 771, and see notes to section 21. What the justices are to determine under this section is the amount of the compensation, and it does not fall within their jurisdiction to to be tices. Sect. 22. decide the question of title. The words "the same mean the compensation, not the title. Reg. v. Edwards, 13 Q. B. D. 586, and see section 23, note "The same shall be so settled." tion ex ceeding of the claiming tion. For procedure, see section 24 and notes thereto. For principles of compensation, see note to section 63 when lands are taken, and to section 68 when injuriously affected. Compensa 23. If the compensation claimed or offered in any such (a) When the amount does not exceed 501., see sections 22-24. Sections 38-57. "If the Party claiming," &c.-It is the landowner who has the choice whether there shall be an arbitration or not. If he does not desire the amount assessed by arbitration, the question must be settled by a verdict of the jury. Fitzhardinge v. Gloucester and Berkeley Canal Company, L. R. 7 Q. B. 776, 781. He does not lose his right to have the value assessed because he has made no claim and because the company has proceeded under section 85. Reg. v. Metropolitan Railway Company, 13 L. T. (N.S.) 444. This section applies also to the settlement of the amount of compensation claimed under section 68, post, in so far as it is not altered thereby. Evans v. Lancashire and Yorkshire Railway Company, 1 E. & B. 754. "By Notice in Writing."-As to service of such notice, see section 134 and notes, post, and section 138 of the Railways Clauses Consolidation Act, 1845, post. The particulars as to the "nature of the interest" required are substantially the same as the particulars of the claim required under sections 21 and 68. See the cases collected in notes to section 21, Sect. 23. note "The particulars of his claim." "The Amount of the Compensation so claimed."-The party who takes the initiative must state the amount he claims in the notice he gives. The landowner, therefore, who desires arbitration must do so in order that the promoters may have an opportunity of considering whether they will pay him the amount he claims without arbitration or offer him a smaller sum. Fitzhardinge v. Gloucester and Berkeley Canal Company, L. R. 7 Q. B. 776, 781. "The same shall be so settled."-It is the amount of compensation that is to be settled and not the title to compensation. The question of title and the enforcement of the rights of parties is left to other tribunals. This is equally true of all assessments of the value of land under this Act, whether by justices, jury and sheriff, arbitrators, or surveyors. As to justices, this was decided in Reg. v. Edwards, 13 Q. B. D. 586. As to jury and sheriff, see Reg. v. London and North Western Railway Company, 3 E. & B. 443; Chabot v. Morpeth, 15 Q. B. 446; Ex parte Cooper, 34 L. J. Ch. 373; Chapman v. Monmouthshire Railway Company, 2 H. & N. 267; Walker v. London and Blackwall Railway Company, 7 Jur. 1154. As to arbitrators, see Re Newbold, 14 C. B. (N.s.) 405; Reg. v. London and North Western Railway Company, 3 E. & B. 443; Gould v. Staffordshire Potteries Waterworks Company, 6 Ry. Cas. 568; Rhodes v. Airedale Drainage Commissioners, 1 C. P. D. 402; Brierley Hill Local Board v. Pearsall, 9 App. Cas. 595. If the promoters, therefore, desire to contest the right of the claimant to compensation, they cannot do so until after the amount has been assessed. Brierley Hill Local Board v. Pearsall, supra, pp. 59, 601, and the cases just cited. The promoters cannot restrain the claimants from proceeding, even when they have no title, as the Court will not grant an injunction to restrain persons from doing a mere fruitless act. London and Blackwall Railway Company v. Cross, 31 Ch. D. 354; and see section 25, note "Restraining arbitration," p. 64. And even in a case under section 41 of the Railways Regulation Act, 1868, post, where the compensation may be assessed by a judge and jury of the High Court the same principle applies. It is merely a determination as to the amount, and the only mode of enforcing the judgment would be to bring an action in the ordinary way in the High Court. In Re East London Railway Company (Oliver's Claim), 24 Q. B. D. 507; and see Lord ESHER, p. 511, on the law under the Lands Clauses Act. If, however, promoters enter on land without compensating a person having an interest therein, or otherwise proceeding under the Act in respect thereof, he has ground for an action, and the Court has power in that action to make a declaration as to his interest in the property. Birmingham Land Company v. London and North Western Railway Company, 40 Ch. D. 268. As the service of notice and reference to arbitration leaves the question of title open, the promoters are not thereby estopped from afterwards claiming the land as being their own property. Campbell v. Mayor of Liverpool, 9 Eq. 579. A proviso as to title in the notice to treat will not enable the company to revoke the reference to arbitration; the effect is to reserve the point for Sect. 23. future decision. Re Arbitration between Chilworth Gunpowder Company and the Manchester Ship Canal Company, 8 Times L. R. 79. The compensation must be an amount in money and nothing else, and there is no power to grant or award any other relief. Thus, an arbitrator cannot direct or award that approaches and ways be constructed to land not taken, in lieu of communications formerly existing on the land taken. In re Ware, 9 Ex. 395. Nor can he apportion rent where part only of leasehold premises is taken; a method being provided for that purpose in section 119. S. C. The verdict of a jury which awarded an additional sum in respect of the expense that would be incurred by the landowner in building a bridge between the severed portions of the land was held to be in excess of their jurisdiction. Reg. v. South Wales Railway Company, 13 Q. B. 988. See "Jurisdiction of jury" in note to section 50, post. "For three Months," &c.-By section 31 of this Act (see post) the arbitrators, where two have been appointed and agree to act, are allowed 21 days after the last shall have been appointed in which to make their award; but they may enlarge that time, and according to this section it would appear that they can enlarge it to three months. As to the manner of enlargement, see section 31. If they do not make their award within the extended time, section 31 further provides that the matter shall be referred to an umpire to be previously appointed under section 27. The umpire has a further period of three months from the date of the reference to him within which to make his award. Sherratt v. North Staffordshire Railway Company, 17 L. J. Ch. 161. Where the arbitrators have failed to appoint an umpire, the same rule holds good. He has three months from the date when the duty devolves upon him. Bradshaw's Arbitration, 17 L. J. Q. B. 362; Holdsworth v. Wilson, 4 B. & S. 17. And if the date of his appointment is after the time when the arbitrators should have made their award, the three months is counted from the date of his appointment and not from the limit of the time within which the arbitrators should have made their award. Re Arbitration between Pullen and the Corporation of Liverpool, 51 L. J. Q. B. 285. Where two arbitrators are appointed and one refuses or neglects to act for seven days, the other may proceed ex parte under section 50. That sole arbitrator would no doubt have three months in which to deliver his award, but there is no provision as to whether it is to be calculated from the date of his appointment or from the date of the appointment of the arbitrator who refuses to act, or, thirdly, from the end of the seven days. This last method would appear to carry out the principle laid down in the case of an umpire, namely, that he has three months from the date when the duty devolves upon him. If the award is made after three months has elapsed it is invalid, if the time has not been otherwise enlarged. Evans v. Lancashire and Yorkshire Railway Company, 1 E. & B. 754. Enlargement of Time for Making Award. The time for making an award may be enlarged either I. By consent of the Parties.-The provision in this section is a power given for the advantage of the parties enabling either party to obtain a |