English law.

retained by the company out of the compensation awarded, and the balance, if any, of such expenses may be recovered as before by poinding and sale (sec. 52).

It has been held in England, that the jury have no power to inquire whether the claimant has a proper right or title to compensate, but must assume that he possesses this, and assess compensation accordingly (a). This, however, as an absolute proposition, has been doubted (b). It has also been held that the Sheriff and jury cannot inquire into the validity or import of what took place prior to the petition to the Sheriff, but must go on with the inquisition though their proceedings may ultimately prove a nullity (c). The jury may, however, find that no compensation is due (d).

INQUISITION BY VALUATORS.

If the party entitled to compensation cannot treat with the company in consequence of being absent from the kingdom, or cannot after diligent search be found, or fails to appear at the inquisition after due notice, the compensation for permanent injury is assessed by a valuator appointed by the Sheriff on application by the company (secs. 56, 57). Before entering on the duties of his office the valuator makes and subscribes an oath de fideli administratione, adhibited to his nomination (sec. 58); and the valuation, when made by the valuator, with his nomination and oath attached to it, must be preserved by the company, and be produced by them at any time to all having interest (sec. 59) (e). The whole expenses of this method of assessing compensation fall on the company (sec.60). If the owner should afterwards be dissatisfied with the amount of compensation thus awarded, he may, before applying to the Court for payment or investment, have the matter submitted to arbitration by giving notice to that effect in writing to the company

(a) R. v. Lond. and Nor.- West. Ra. Co., 3 E. and B. 443; Chapman v. Monmouth. Ra. Co., 2 H. and N. 277; Metropolitan Ra. Co., 32 Law Jour. (Q. B.) 367.

(b) See per Erle, C. J., in R. v.
Lond. and Nor.- West. Ra. Co., supra ;

and per Willes, J., in Chapman v.
Monmouth. Ra. Co., supra.

(c) Taylor v. Clemson, 2 Q. B. 978; Ostler v. Cooke, 18 Q. B. 831.

(d) R. v. Lancaster and Preston Ra. Co., 6 Q. B. 759.

(e) The want of the declaration on oath has been held to nullify the whole proceedings. Midland Ra. Co. v. Gray, 1850, 13 D. 410.

(sec. 63). In such
In such a case the arbiters merely determine whether
the sum awarded was sufficient, or whether any and what further
sum should be paid (sec. 64). If they award the claimant a further
sum, it must be paid or deposited within fourteen days from the
date of the decree-arbitral, after which it may be enforced by dili-
gence, or recovered by action, with costs (sec. 65). If the arbiters.
find the previous valuation sufficient, they have the costs of the
second inquisition in their discretion; if a further sum is awarded,
such costs must be borne by the company (sec. 66).

valuator, when

It is observable that the statute gives no right to this second Award of inquisition to persons who, after due notice, have failed to appear final. at the inquisition by a jury. The award of the valuator appointed in such cases is therefore final.

POWER OF REVIEW.

proceedings may be quashed.

By sec. 138 of the Act it is declared that no proceeding under Cases in which this or the special Act, or any Act incorporated therewith, shall be quashed or vacated for want of form, nor shall the same be removed by suspension or otherwise into any superior court.' The corresponding section of the English Act (8 Vict. c. 18, s. 145) is exactly the same, except that 'certiorari' is substituted for 'suspension.' At first sight it might be supposed that these enactments rendered the proceedings final and conclusive. It has, however, been decided that this is not their proper import; and that while the right of review is taken away in all cases where the matters to be inquired into have been fairly before the inquisition, this is not the case where the statutory tribunal has exceeded its jurisdiction. Wherever, therefore, it can be shown that the Sheriff, the arbiters, or the jury have taken upon them to deal with a matter not remitted to them for inquisition, their proceedings may be quashed by suspension or reduction in Scotland, or by writ of certiorari in England (a). But in applying this rule the Court will take care that, under pretext of impugning the jurisdiction, the provisions of the Act are not evaded (b).

(a) Glasgow and Milston Ra. Co. v. Nitshill Coal Co., 1850, 7 Bell's App. 325, reversing 11 D. 327 (1848); Caledonian Ra. Co. v. Ogilvy, 1853, 15 D. 410, as reversed 1855, 2 Macq.

229; South Wales Ra. Co. v. Richards,
13 Q. B. 988; R. v. Sheffield and
Manchester Ra. Co., 1 Rail. Ca. 537.

(b) R. v. Sheffield Ra. Co., 1 Rail.
Ca. 537; R. v. Lancaster and Preston

Estimation and apportionment of the compensation.

Apportionment.

The Court will also interfere if the proceedings are impeached on the ground of malversation or undue interest on the part of the Sheriff (a). It must be observed, however, that in all such cases the party seeking review may be estopped by conduct or acquiescence from taking an objection which otherwise would be successful (b).

In estimating the purchase-money or compensation,-whether this be done by the Sheriff, by arbitration, by a jury, or by valuators,-regard must be had not only to the value of the land taken, but also to the damage consequent upon severance or other injury attending the proceedings of the company in the execution of their undertaking (sec. 61). In England, however, it was held that this provision, where it occurred in a special act passed prior to the general statute, was directory only, and not in the nature of a condition avoiding the verdict if not complied with, at least where the point had not been raised at the trial (c).

The amount finally determined as compensation must be apportioned among all parties having interest who appear as claimants. This, however, does not preclude any party having a separate interest from having it ascertained separately (sec. 62) (d). This provision has been rigidly interpreted in England; and when the inquisition did not specify the amount of compensation to which each claimant was entitled, the proceedings were declared void, and a new inquiry was directed (e). The company cannot object to the consigned money being uplifted by the proprietor until the issue of a reduction of the claim in his favour which they have instituted (ƒ). It may happen that, though no excess of jurisdiction, nor any mistake of the malversation on the part of the presiding officer can be alleged, yet one of the parties has met with injustice through the perverseness or mistake of some of the jury. In such a case it is very doubtful

What if injustice arise from

jury.

(c) London and Greenwich Ra. Co., 2 A. and E. 678; Corrigal v. London and Blackwall Ra. Co., 5 M. and Gr. 219, 3 Rail. Ca. 411.

(d) As, for example, in the case of tenants.-Falconer v. Aberdeen Ra. Co., 1853, 15 D. 352.

(e) R. v. Norwich and Walton Trs., 5 Ad. and E. 563.

(f) Fortune v. Edinburgh and Bathgate Ra. Co., 1849, 11 D. 531.

if the Court would interfere. In an English case, the Court refused a mandamus to compel the issuing of a new precept by the company to the Sheriff to summon a jury, though the application was made on the grounds of misdirection, of improper rejection of evidence, of the verdict being against evidence, and of the damages being grossly insufficient (a).

APPORTIONMENT AND APPLICATION OF COMPENSATION-MONEY.

If the claimant possess the lands in fee-simple, and labours under no legal disqualification, he of course is the proper person to receive payment of the sums awarded; but as the Act enables persons possessing merely a qualified or partial interest to convey, it also makes special provision for the application of the purchasemoney or compensation in such cases.

The following are the parties falling under these provisions : -Corporations; heirs of entail; liferenters; married women seised in their own right, or entitled to any interest out of land; husbands representing their wives, or possessing in courtesy; guardians for pupils and minors, for lunatics, or others under disability; and judicial factors, trustees, executors; and generally any persons whose interest being qualified, are only entitled to convey by force of the statutory provisions.

If the compensation payable to such persons, either for lands or consequential or permanent damage, amounts to or exceeds £200, it must be consigned in a chartered or incorporated bank, until it can be applied to one or other of the following purposes, under authority of the Court of Session (b).

1. In the purchase or redemption of the land-tax, or in discharging any debt or incumbrance affecting the lands in question, or other lands settled therewith on the same heirs, or for the same trusts or purposes, or affecting succeeding heirs of entail in such lands, whether created by the entailer, or in virtue of powers given by the entail, or conferred by statute (c) (sec. 67).

(a) R. v. East. Counties Ra. Co., 3 Ra. Ca. 466. See also R. v. London and North-Western Ra. Co., 3 E. and B. 475; Re Stroud, 8 C. B. 502.

(b) When the word bank is used

in the Act, it always means one of the
incorporated or chartered banks in
Scotland (sec. 3).

(c) Under the head of debts con-
tracted under statutory authority may

2. In the purchase of other lands, to be conveyed, limited, and settled upon the same heirs, and the like trusts and purposes, and in the same manner as the lands in question (a) (sec. 67).

In carrying out this provision, it is declared to be unnecessary to engross verbatim, or to mention specifically in the new titles, the provisions or conditions of the old investiture, but to be sufficient to refer to the old deeds by their dates, and to declare that the new lands are held under the same conditions, trusts, and purposes, and to record the title-deeds containing such general references