review. Quare whether the Court can interfere by certiorari or 8 & 9 VICT. c. 18 mandamus: (Owen v. London and North-Western Railway Co., ubi supra.) Where an arbitrator was substituted for a jury by agreement between the parties, and made an award in favour of the claimant, the deed of reference and the award being silent as to costs, it was held that the provisions of the act with regard to costs did not apply: (Ex parte Reynal, 5 R. C. 60.) By s. 33 of the "Regulation of Railways Act, 1868," (31 & 32 Vict. Recent enactc. 119,) it is provided that "all disputed questions as to any costs, ment as to costs. charges, and expenses of and incident to any arbitration or award made under the provisions of The Lands Clauses Consolidation Act, 1845,' or of any special act of Parliament incorporating the same, whether the question in dispute arise as to compensation to be made for lands required to be purchased and actually taken by any railway company, or in respect of the injurious affecting of other lands not taken, or otherwise in relation thereto, shall, if either party so requires, be taxed and settled as between the parties by one of the Masters of the Court of Queen's Bench; and it shall be law- Fees to master. ful for such master to receive and take, in respect of each folio in length of every bill of costs so settled, a fee of one shilling and no more, and such fee shall be taken in money and not in stamps, and may be retained by the said master for his own use and benefit." As to the fees payable to the master, see further s. 45 of the same act, post. costs. LIII. If any such costs shall be payable by the pro- Payment of moters of the undertaking, and if within seven days after demand such costs be not paid to the party entitled to receive the same, they shall be recoverable by distress (a), and on application to any justice he shall issue his warrant accordingly; and if any such costs shall be payable by the owner of the lands or of any interest therein, the same may be deducted and retained by the promoters of the undertaking out of any money awarded by the jury to such owner, or determined by the valuation of a surveyor, under the provision hereinafter contained; and the payment or deposit of the remainder, if any, of such money, shall be deemed payment and satisfaction of the whole thereof, or if such costs shall exceed the amount of the money so awarded or determined, the excess shall be recoverable by distress, and on application to any justice he shall issue his warrant accordingly. (a) Upon an application for a distress warrant to levy the costs Magistrate canunder this section, the magistrate is bound to consider the decision not revise masof the master as final: (Metropolitan Railway Co. v. Turnham, 32 L. J. M. C. 249.) ter's taxation. Where a remedy by distress is given by statute, it is very doubt- Mandamus to ful whether the Court would interfere by mandamus to compel the enforce payment of costs. 8 & 9 VICT. c. 18. payment of costs: (Reg. v. London and Blackwall Railway Co., 3 D. & L. 404; 4 R. C. 119.) Special jury to be summoned at the party. The landowner's proper course is to get the amount of the costs ascertained; then to make a demand on the company, and if refused to proceed by distress. LIV. If either party (a) desire any such question of request of either disputed compensation as aforesaid to be tried before a special jury, such question shall be so tried, provided that notice of such desire, if coming from the other party, be given to the promoters of the undertaking before they have issued their warrant to the sheriff; and for that purpose the promoters of the undertaking shall, by their warrant to the sheriff, require him to nominate a special jury for such trial; and thereupon the sheriff shall, as soon as conveniently may be after the receipt by him of such warrant, summon both the parties to appear before him, by themselves or their attorneys, at some convenient time and place appointed by him, for the purpose of nominating a special jury (not being less than five nor more than eight days from the service of such summons ;) and at the place and time so appointed the sheriff shall proceed to nominate and strike a special jury, in the manner in which such juries shall be required by the laws for the time being in force to be nominated or struck by the proper officers of the Superior Courts (b); and the sheriff shall appoint a day, not later than the eighth day after striking of such jury, for the parties or their agents to appear before him to reduce the number of such jury, and thereof shall give four days' notice to the parties; and on the day so appointed the sheriff shall proceed to reduce the said special jury to the number of twenty, in the manner used and accustomed by the proper officers of the Superior Courts. No time fixed for The section fixes no time within which the company are to issue issuing warrant. their warrant to the sheriff, requiring him to nominate a special Promoters need jury. (a) Where the promoters desire to have a special jury, they may not give notice. do so without giving any notice to the claimant. Irregularity in striking jury. A notice by a claimant for a special jury under this section does not operate as a waiver of a previous notice (for a jury simpliciter) given under s. 68, nor exonerate the company from their liability under the latter section to issue their warrant within twenty-one days after the receipt of the first notice: (Glyn v. Aberdare Railway Co., 28 L. J. (C. P.) 271.) (b) The proceedings are not rendered void by the sheriff's omission to strike the jury in sufficient time to allow three days before the Special Jury-Compensation to absent Parties. 189 day of taking the inquisition for summoning them, as required by 8 & 9 VICT. c. 18. 6 Geo. IV. c. 50: (Ex parte Great Western Railway Co., 18 L. T. 92.) special jurymen. LV. The special jury on such inquiry shall consist of Deficiency of twelve of the said twenty who shall first appear on the names being called over, the parties having their lawful challenges (a) against any of the said jurymen; and if a full jury do not appear, or if after such challenges a full jury do not remain, then, upon the application of either party, the sheriff shall add to the list of such jury the names of any other disinterested persons qualified to act as special or common jurymen who shall not have been previously struck off the aforesaid list, and who may then be attending the court or can speedily be procured, so as to complete such jury, all parties having their lawful challenges against such persons; and the sheriff shall proceed to the trial and adjudication of the matters in question by such jury, and such trial shall be attended in all respects. with the like incidents and consequences, and the like penalties shall be applicable, as hereinbefore provided in the case of a trial by common jury. (a) Should any of the jurors not be duly qualified, the proper remedy is by challenge. If this is not done, the proceedings will not be held invalid: (Re Chelsea Water- Works Co., 10 Exch. 731; 24 L. J. (Ex.) 79; 3 W. R. 174.) special jury by LVI. Any other inquiry than that for the trial of other inquiries which such special jury may have been struck and reduced before same as aforesaid may be tried by such jury, provided the parties consent. thereto respectively shall give their consent to such trial. attend more than LVII. No juryman shall, without his consent, be sum- Jurymen not to moned or required to attend any such proceeding as afore- once a year. said more than once in any year. pointed by two LVIII. The purchase-money or compensation to be paid compensation to for any lands to be purchased or taken by the promoters of be determined by the undertaking from any party who by reason of absence a surveyor ap from the kingdom is prevented from treating, or who can- justices. not after diligent inquiry be found, or who shall not appear at the time appointed for the inquiry before the jury, as hereinbefore provided for, after due notice thereof, and the compensation to be paid for any permanent injury to such lands, shall be such as shall be determined by the valuation of such able practical surveyor as two justices shall nominate for that purpose, as hereinafter mentioned. 8 & 9 VICT. C. 18. Two justices to nominate a surveyor. 2 & 3 Vict. c. 71, s. 14. Declaration to be veyor. See further on the employment of surveyors, ss. 9 & 47, ante. LIX. Upon application by the promoters of the undertaking to two justices (a), and upon such proof as shall be satisfactory to them that any such party is, by reason of absence from the kingdom, prevented from treating, or cannot after diligent inquiry be found, or that any such party failed to appear on such inquiry before a jury as aforesaid, after due notice to him for that purpose, such justices shall by writing under their hands nominate an able practical surveyor for determining such compensation as aforesaid, and such surveyor shall determine the same accordingly, and shall annex to his valuation a declaration in writing subscribed by him of the correctness thereof. (a) 2 & 3 Vict. c. 71, s. 14, enacts that it shall be lawful for any one of the metropolitan police magistrates to do alone any act at any of the said courts, or at any place where her Majesty shall order any such court to be holden within the limits of the metropolitan police district for the time being, which by any law now in force, or by any law not containing an express enactment to the contrary hereafter to be made, is or shall be directed to be done by more than one justice:" (See Willey v. South-Eastern Railway Co., 6 R. C. 100; 1 Mac. & G. 58.) LX. Before such surveyor shall enter upon the duty of myde by the sur-making such valuation as aforesaid he shall, in the presence of such justices, or one of them, make and subscribe the declaration following at the foot of such nomination; that is to say, Valuation, &c., the owner of the 'I, A.B., do solemnly and sincerely declare, That I will faithfully, impartially, and honestly, according to the best of my skill and ability, execute the duty of making 'the valuation hereby referred to me. A.B. 'Made and subscribed in the presence of And if any surveyor shall corruptly make such declaration, or having made such declaration shall wilfully act contrary thereto, he shall be guilty of a misdemeanour. LXI. The said nomination and declaration shall be to be produced to annexed to the valuation to be made by such surveyor, lands on demand. and shall be preserved together therewith by the promoters of the undertaking, and they shall at all times produce the said valuation and other documents, on demand, to the owner of the lands comprised in such valuation, and to all other parties interested therein. Expenses of Valuation-Assessing Compensation. 191 LXII. All the expenses of and incident to every such 8 & 9 VICT. c. 18. valuation shall be borne by the promoters of the under- Expenses to be taking. borne by promoters. and compensa LXIII. In estimating the purchase-money or compen- Purchase-money sation to be paid by the promoters of the undertaking, in tion, how to be any of the cases aforesaid, regard shall be had by the estimated. justices, arbitrators, or surveyors, as the case may be, not only to the value of the land to be purchased or taken by the promoters of the undertaking, but also to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special act, or any act incorporated therewith (a). arbitrators, or (a) Justices, arbitrators, or surveyors are not, as juries are, (by Award of gross 8. 49,) required to assess separately the amount of purchase-money sum by justices and the amount to be paid by way of compensation for damage surveyors. done; and therefore it is no objection under this section to the award of an umpire made under s. 28, that both are assessed in a gross sum, though each is expressly claimed: (Re Bradshaw, 12 Q. B. 562.) sation to absent surveyor, the the same sub. tration. LXIV. When the compensation payable in respect of Where compen any lands, or any interest therein, shall have been ascer-party has been tained by the valuation of a surveyor, and deposited in the determined by a bank under the provisions herein contained (a), by reason party may have that the owner of or party entitled to convey such lands or mitted to arbisuch interest therein as aforesaid could not be found or was absent from the kingdom, if such owner or party shall be dissatisfied with such valuation it shall be lawful for him, before he shall have applied to the Court of Chancery for payment or investment of the moneys so deposited under the provisions herein contained by notice in writing to the promoters of the undertaking, to require the question of such compensation to be submitted to arbitration, and thereupon the same shall be so submitted accordingly, in the same manner as in other cases of disputed compensation, hereinbefore (b) authorised or required to be submitted to arbitration. (a) See s. 76, post. (b) See s. 25-37, ante, pp. 167–174. LXV. The question to be submitted to the arbitrators Question to be in the case last aforesaid shall be, whether the said sum so arbitrators. submitted to the |