it, and that the defendants were not such commissioners. It is not easy, indeed hardly possible, to reconcile all the provisions of the act respecting the commissioners who are to carry it into effect. But, taking the whole together and giving to it that which appears to us the most reasonable construction, we are of opinion that the defendants were in effect commissioners and had authority to exercise the powers given by the act. *By the 1st section, the lords or ladies of the several manors *160] of Bardney, Tupholme, and Stixwould for the time being, or, in his, her, or their absence, their respective agents appointed by writing under their respective hands for each of the said manors, which appointments might be in the form specified in the schedule, or as near thereto as circumstances would permit, were thereby appointed commissioners for executing the act. It is to be observed that by the terms of this section the agents appointed by the lords or ladies of the three manors, in their absence, are themselves commissioners, and not merely the deputies or substitutes for commissioners: and, if the lords of the three manors were absent from the county or neighbourhood within which the act was to be carried into effect, though they might be in England, we think they would be at liberty to appoint their agents, who would become commissioners instead of those by whom they were appointed. Some difficulty undoubtedly arises from the form of the appointment in schedule (A): but it does not appear to us inconsistent with the opinion we have formed, that the agents, when appointed, are commissioners and capable of executing the powers given by the act. This construction is the more reasonable as the manors might have been the property of women, to whom it would have been, at least, very inconvenient to have acted personally as commissioners. In the present case, the act was passed on the 28th July; and on the 1st of August the defendants were appointed by the lords of the three manors respectively, who were at that time absent from the county, though in England. And we think that such appointment, when once made, continues in force, until suspended by the *actual presence of the lord or lords of the *161] manors respectively. As the lords of the three manors were not, we think, commissioners within the meaning of the act of parliament, but merely appointed the defendants, who were the commissioners, it was not necessary for them to make the declaration required by sect. 2; nor was it necessary that they should have made the appointment at a public meeting as required by sect. 6. The defendants, then, being in our opinion commissioners properly constituted, the next question is, Whether, in the plaintiff's case, they have properly exercised the powers given by the act? It was objected that, though the notice given to the plaintiff stated the particulars of the land required, the warrant to the sheriff did not, nor did it in any way refer to the notice; so that the warrant might apply to any land of the plaintiff within the district. The inquisition also was objected to upon the same ground, as it referred to the warrant only and not to the notice, and neither warrant nor inquisition gave the particulars of the land required. By the 71st section of the act (a) notice must be given by the commissioners of their intention to take any land; and the notice must state the particulars of the land required. If a question of disputed compensation shall be required to be determined by a jury, the commissioners, by the 78th section, (a) are to issue their warrant to the sheriff to summon a jury for that purpose: and by sect. 87(a) the sheriff is to give judgment for the purchase-money or compensation, assessed by the jury. *The proceedings appear to us to be sufficient upon the face of them, and to show as much as is required by the act of parlia ment. [*162 If the notice had been referred to in the warrant, the sheriff could not have entertained any question of variance or proof of the notice: the jury are only to inquire into the amount of the compensation to be awarded for the land required; and the judgment is for the money awarded, and not for the land. If the commissioners should give evidence of the value of other land than that mentioned and described in their notice, the proceeding would be void, and they would have no power to enter upon any land of the plaintiff. In the present case there was no question as to the identity of the land, as evidence of value was given on both sides, and there was a view; and we are of opinion that neither by the terms of the act of parliament, nor by any general rule of law, was it necessary that the notice should be referred to, or any particular description of the land given in the warrant, to give jurisdiction to the sheriff and the jury; nor do we think it necessary that it should appear upon the face of the warrant or inquisition that the parties were unable to agree. The case of Taylor v. Clemson in the Exchequer Chamber, (b) and afterwards in the House of Lords, (c) was cited on both sides upon the argument; but the judgments in that case, and particularly that in the House of Lords, appear to us to be in accordance with our view of the present case. Our judgment is therefore for the defendants on the *2d, 3d, 4th, and 6th issues, and for the plaintiff on the 1st and 5th. [*163 Judgment accordingly. The clauses of stat. 6 & 7 Vict. c. lxxvi., authorizing the taking of land, were similar in effect to those since made part of the Lands (a) See notes at the end of the case, post, p. 163, et seq. (c) 11 Cl. & F. 610. Clauses Consolidation Act 1845, stat. 8 & 9 Vict. c. 18, but not the same in terms. The clauses for the taking of land referred to in the above case were the following. Sect. 51 gave power to enter upon and take lands for the purposes of the act, making satisfaction, and empowered the commissioners, for that purpose, to agree with proprietors, &c. Sect. 52 provided for conveyance of lands to the commissioners by parties under disability, &c. Sect. 63. "And for the purposes of providing for the payment and application in certain cases of the purchase-money or compensation to be paid in respect of any such lands not belonging to parties under disability, be it enacted, That in the following cases (that is to say), if the owner of any such lands, or of any interest therein, on tender of the purchase-money or compensation either agreed or awarded to be paid, refuse to accept the same; or if any such person fail to make out a title to the lands in respect whereof such purchase-money or compensation shall be payable, or to the interest therein claimed by him, to the satisfaction of the commissioners, or if such owner be gone out of the kingdom, or cannot be found, or be not known, or refuse to convey or release such lands as directed by the commissioners, it shall be lawful for the commissioners to deposit the purchase-money or compensation payable in respect of such lands, or any interest therein, in the Bank of England in the name and with the privity of the Accountant-General of the Court of Chancery, to be placed to his account there to the credit of the parties interested in such lands (describing them so far as the commissioners can do), subject to the control and disposition of the said Court; and upon the receipt of such money the cashier of such bank shall give to the commissioners or to the party paying in such money a receipt for such money, specifying therein for what and for whose use (described as aforesaid) the same shall have been received, and in respect of what purchase the same shall have been paid in, and thereupon all the interest in such lands in respect whereof such purchase-money or compensation shall have been deposited shall vest absolutely in the commissioners." *164] Sect. 71. (a) "And be it enacted, That when the commissioners shall require to purchase any of the lands which by this act they are authorized to purchase or take, they shall give notice thereof to all the parties interested in such lands, or enabled by this act to sell and convey or release the same, or such of them as shall be known to the commissioners, and by such notice shall demand from such parties the particulars of their estate and interest in such lands, and of the claims made by them in respect thereof; and every such notice shall be in writing, and shall state the particulars of the lands so required, and shall state that the commissioners are willing to treat for the purchase of the interest of such party in such lands, and as to the compensation to be made for the damage that may be sustained by him by reason of the making of the works authorized by this act." Sect. 72.(b) "And be it enacted, That if for one month after the receipt of such notice any such party shall fail to state the particulars of his claim in respect of any such land, or to treat with the commissioners in respect of his interest therein, or if such party and the commissioners shall differ as to the amount of the compensation to be paid to such party for any such interest, or for any damage that may be sustained by him by reason of the execution of the said works, the amount of such compensation shall be settled in the manner hereinafter provided for settling cases of disputed compensation." Sect. 73.(c) "And be it enacted, That where, according to the provisions of this act, the commissioners are authorized to enter upon and take possession of any lands required for the purposes of this act, if the owner or occupier of any such lands, or any other person, refuse to give up the possession thereof, or hinder the commissioners from entering upon or taking possession of the same, it shall be lawful for the commissioners to issue their precept under their hands to the sheriff to deliver possession of the same to the person appointed in such precept to receive the same; and upon the receipt of such precept the sheriff shall deliver possession of any such lands accordingly; and the costs accruing by reason of the issuing and execution of such precept, to be settled by the sheriff, shall be paid by the persons refusing to give possession; and such costs, if not paid on demand, shall be levied by distress, and the sheriff shall issue his warrant accordingly." Sect. 74.(d) "And for the purpose of making provision for settling cases of disputed com. pensation arising under this act, be it enacted, That if any difference shall arise, or if no agree (a) See stat. 8 & 9 Vict. c. 18, s. 18. (d) See stat. 8 & 9 Vict. c. 18, ss. 21, 23. ment can be come to, between the commissioners and the owners of any lands, or of any interest in any such lands, taken or required for or injuriously affected by the execution of the powers of this act (including among such owners all parties by this act enabled to sell or convey lands), as to the value of such lands, or of any interest therein, or as to the compensa- [*165 tion to be made in respect thereof, or if by reason of absence any such owner be prevented from treating, or if any such owner fail to disclose or prove his title to any such lands or any interest therein, or if by reason of any impediment or disability any such owner be incapable of making any agreement, conveyance, or release necessary for enabling the commissioners to take such lands, or to proceed in making the works authorized by this act, or if any such difference arise as to the amount of the damages occasioned to the lands by the temporary occupation thereof in the making of the said works, or otherwise in exercise of the powers given by this act, and for which any party may be entitled to demand compensation according to the provisions of this act, the amount of the compensation to be paid by the commissioners in every such case shall be settled by the verdict of a jury in manner hereinafter mentioned." Sect. 76. (a) "And be it enacted, That where it shall be necessary to refer any such question to the determination of a jury by reason of any such difference as aforesaid, then, one month at least before issuing their warrant for summoning a jury as hereafter provided, the commissioners shall give notice in writing to the party with whom such difference shall have arisen of their intention to cause such jury to be summoned; and in such notice the commissioners shall state what sum of money they are willing to give such party for his interest in such lands, and for the damage to be sustained by him by the execution of the said works." Sect. 78.(b) "And be it enacted, That in every case in which any such question of disputed compensation shall be required to be determined by the verdict of a jury, the commissioners shall issue their warrant to the sheriff, under the hands of two or more of them, requiring him to summon a jury for that purpose; and if such sheriff be interested in the matter in dispute, such application shall be made to some coroner of the county in which the lands in question, or some part thereof, shall be situate; and if all the coroners of such county be so interested, such application may be made to some person having filled the office of sheriff or coroner in such county, and who shall be then living there, and who shall not be interested," &c. Sect. 82.(c) "And be it enacted, That fourteen days' notice of the time and place of the inquiry shall be given in writing by the commissioners to the other party." [*166 Sect. 85.(d) "And be it enacted, That such jury shall deliver their verdict for the sum of money to be paid for the purchase of the lands required for the purposes of this act, or of any interest therein, belonging to the party with whom such question of disputed compensation shall have arisen, and also the sum of money to be paid for the injury done to the lands of any such party by the severance from such lands of the lands required by the commissioners, and also the sum of money to be paid by way of compensation for the damage occasioned to any such lands by the execution of the works, whether it be for damage sustained before the time of the inquiry, or for future damage, either temporary or permanent, or for any recurring damage of which the cause is then only in part obviated, and which cannot or will not be further obviated by the commissioners; and the sums of money to be paid for the injury done by any such severance as aforesaid, or by way of compensation for any such damage as aforesaid, shall in every case be assessed separately from the value of the lands, or the sum to be paid for the purchase thereof, or of any interest therein." Sect. 87.(e) "And be it enacted, That the sheriff before whom such inquiry shall be held shall give judgment for the purchase-money or compensation assessed by such jury; and the said verdict and judgment shall be signed by the sheriff, and being so signed shall be kept by the clerk of the peace for the parts of Lindsey in the county of Lincoln among the records of the quarter sessions for the said parts; 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; and all persons may inspect the said verdicts and judgments, and may have copies thereof or extracts therefrom, on payment," &c. The QUEEN v. The Inhabitants of TACOLNESTONE. Jan. 17. *167] *BRIGGS v. The MERCHANT TRADERS' Ship Loan and Insurance Association. Jan. 18. A vessel, the J. A., with cargo on board, abandoned by her crew at sea, was brought into harbour by salvors. Plaintiff, who was owner of the J. A., applied to the Court of Admiralty, and obtained possession of the ship and cargo on entering into recognisance as a security for the whole salvage: and he effected an insurance intended to cover the proportion of the salvage he might have to pay under the recognisance. In the policy the subject-matter of insurance was described as "average expenses per J. A." The vessel then sailed and was totally lost with the cargo on board. Plaintiff was obliged to pay the amount of his recognisance. Held, in an action against the underwriters, 1. That the cargo was liable to contribute a rateable portion of the salvage: and that the plaintiff, who had become liable to pay the whole salvage, had a lien on the cargo for that rateable portion, and had consequently an insurable interest in the cargo. 2. That, in the policy, the description of the subject-matter as average expenses was sufficient. COVENANT. The declaration averred that the plaintiff was owner of the ship Joseph Alexander, lying at Yarmouth, on which were then goods previously loaded belonging to William Dawson and John Woods; and that there was due to the plaintiff, as such owner of the ship, by the owners of the goods in respect thereof as such owners, 700l., for certain average expenses, being the average expenses mentioned in the policy thereinafter mentioned, that is to say, for contribution to certain salvage of the ship and of the goods whilst the same were on board the ship, paid by the plaintiff to the salvors thereof: the declaration then averred that plaintiff, at the time of making the policy, up to the time of the loss, had a lien on the goods for the amount of the average expenses and contribution, and during all that time was interested in the goods, to wit, to the amount insured. The declaration then set out a policy of insurance under the seal of the defendants, in nearly the ordinary form, in which the policy was declared to be on average expenses per Joseph Alexander. The count then averred a total logs of the ship and goods; and that the plaintiff *thereby lost his lien on the goods, and the sum so due for average expenses and contribution. Breach, non-payment. *168] Pleas, 1. Non est factum. 2. That there was not due or owing, in respect of the goods, to the plaintiff, for average expenses, the said sum or any part thereof, modo et formâ: 3. That the plaintiff was not interested in the goods or any part thereof, modo et formâ: 4. A traverse of the plaintiff having lost the sum, modo et formâ: on which issues were joined. There were other issues, of which the affirmative lay on the defendant, and on which nothing turned. |
