« EelmineJätka »
268. (3). Inquiry. The next step to be considered is the inquiry. This involves four questions respecting, first, the capacity of the presiding judge; second, the finding of the jury; third, the form of the inquisition; and, lastly, its effect in binding the property.
269. First. The inquisition (f) must be holden before the party contemplated by the act. Where therefore a railway act specifies a particular party as judge, that party must exercise his authority in person, and cannot delegate it to another; as where an act provided that the precept should be addressed to the sheriff, and if he and the undersheriff were interested, then to the coroner, &c., and the inquisition was holden before the clerk of the undersheriff, assisted by a barrister as assessor, the clerk and the assessor having been appointed by the sheriff his deputies for the purpose, the court seems to have inclined to the opinion that the proceedings were erroneous. (g)
270. A railway act usually provides for the case of the officer nominated in the act as judge being a shareholder, by appointing another party in such instance to officiate in his stead. In such a case, (h)
(f) As to similar provision of Lands Clauses Consolidation Act (8 Vict. c. 18) on subject of inquisition, see act, s. 43, post, App. Ten days' notice of the inquiry must be given, ib. s. 46.
(g) Reg. v. The Sheffield, Ashton-under-line, and Manchester Railway Company, 1 Railway Cas. 546; S. C. 11 A. & E.
(h) See Corrigall v. The London and Blackwall Railway Company, 21 Law Journ. C. P. 216; S. C. 5 M. & Gr. 219.
were the interested party to preside at the inquisition, the proceedings would be bad; though if the other side, with notice of the objection, were to appear before such party and suffer the inquisition to proceed, and judgment to be given thereon, it might perhaps be construed into a waiver of the informality. It seems questionable whether the above provision can be taken to apply to a case where the party appointed to preside at the trial is some party holding a particular office, and the office is constituted of two persons (as in the sheriffwick of Middlesex) of whom one only is a shareholder. (i)
271. 2dly, The finding of the jury must be consistent with the precept. It is the value of the land comprised in the precept that the jury are summoned to assess. The company cannot therefore at the trial depart from their precept and call on the jury to give a verdict touching any fraction of the property in question they may think proper. (k)
272. Where there are different persons having several interests in the property required for the purposes of a railway, the jury, under the usual provisions of an act, must apportion the compensation among the several parties, according to their respective interests, at least if they are impanelled to do so; and an assessment of the compensation in one gross sum would accordingly be bad. (1)
The like rule would seem to apply where the
(i) See ante, 202, n. (h).
(k) Judgment of Lord Chancellor in Stone v. The Commercial Railway Company, 1 Railw. Cas. 403; S. C. 4 Myl. & Cr. 122. (1) See Rex v. The Trustees of the Norwich and Watton Road, 5 A. & E. 578; S. C. 1 Nev. & P. 32.
same party prefers a twofold claim, both for purchase-money and for damages, (m) if the jury are required at the trial to make a separate assessment. But if no demand is made at the time on the part either of the company or the claimant for a separate assessment, then it seems a verdict is not to be regarded as a nullity, for not adjudicating separately on each claim, even though the act expressly declares that the one claim shall be inquired into and assessed separately from the other; the enactment in question not being compulsory, or in the nature of a condition precedent, so that if it be not observed all the subsequent proceedings are to be held void, but only directory, so as to empower the company or the claimant to call on the sheriff to keep the evidence distinct as to the value of the premises, and the satisfaction for damage done, and to find and adjudicate a separate sum in respect of each. (n)
273. Where the jury assess a compensation to a particular individual without noticing the interest of any one else, it is not to be presumed, in the absence of evidence to the contrary, that they have given such compensation for a larger interest than the party really had, or have overlooked any other person's interest. (0)
(m) As to provision of Lands Clauses Consolidation Act (8 Vict. c. 18) on this point, see act, s. 49, post, App.
(n) In the matter of the London and Greenwich Railway Company, 2 A. & E. 683; S. C. 4 Nev. & M. 458; Corrigall v. The London and Blackwall Railway Company, 21 Law Journ. C. P. 216; S. C. 5 M. & Gr. 219.
(0) Rex v. Nottingham Old Water Works Company, 6 A. & E. 355.
274. Thirdly. The finding of the jury is usually embodied in what is termed an inquisition. Such inquisition ought, it seems, of itself to show that it is warranted by the act. It need not however do this expressly, but it is enough if the jurisdiction appear by necessary intendment. Now, under the usual provisions of a railway act, what is substantially necessary to give the jury jurisdiction is, that a previous agreement for the purchase cannot be made. Hence, where the clause conferring the jurisdiction (p) runs in the usual form, all that need appear on the face of the inquisition is the bare circumstance of recourse having been had by the company to the compulsory process provided by the act, viz. by summoning a jury and proceeding to judgment in the mode prescribed by the act, as this in itself affords a necessary inference that no previous agreement for the purchase could be made. (p) To make this appear, where, as is usually the case, the warrant is annexed to the inquisition and therein referred to as so annexed, the two documents may be considered as one entire proceeding, and any deficiency existing in the one may be aided by reference to the other. (q)
275. From what has been said, it follows that in general it constitutes no objection to the inquisition that it fails to mention the notice to treat, or the notice of the inquisition; or in case of the property in question, or any part of it, having been omitted
(p) As to provisions of Lands Clauses Consolidation Act (8 Vict. c. 18) on this point, see act, s. 21 et seq., post, App. (4) Taylor v. Clemson, 2 A. & E. N. S. 1030; S. C. 2 G. & D. 346; 3 Railw. Cas. 65.
in the schedule of the act by mistake and so certified by two justices, that no statement of the certificate appears therein; (r) the effect of such certificate being to extend the operation of the statute to the lands, &c. included in the certificate, and to place them in the same situation as if they had been inserted in the original schedule. (r)
276. In like manner, no compliance need be shown on the face of an inquisition with a subsequent and independent provision of the act which in substance operates as a defeasance of the compulsory powers conferred by the act, but it ought to come by way of answer from the other side; (s) as, for instance, where there is in an act a separate section prescribing as a necessary preliminary to the exercise by the company of their compulsory powers of taking land, that the whole capital be first subscribed, an inquisition taken under such act is not void for the want of an averment that this has been done. (s)
277. Where the statute prescribes no regular form for an inquisition, the usual enactment (t) that such inquisitions shall be kept among the records of sessions, and shall be deemed records, does not render it necessary to draw them up with the formality required in setting out the judgment of an inferior court. (u)
(r) Ante, p.205, n. (9).
(s) Doe d. Payne v. The Bristol and Exeter Railway Company, 2 Railw. Cas. 94; S. C. 6 M. & W. 320.
(t) As to provision of Lands Clauses Consolidation Act (8 Vict. c. 18,) on this head, see act, s. 50, post, App.
(u) See judgment of Littledale, J., in Reg. v. The Trustees of Swansea Harbour, 8 A. & E. 439.