« EelmineJätka »
278. We have lastly to consider the effect of the inquisition, (a) and on what interests it must be taken to operate. To determine this point we must, it seems, consider what were the materials laid before the jury in order to their forming their decision; what by the precept they were called on to do; and, the purport of the inquisition.
Where it appears clearly and definitely on the face of the proceedings what interests were under the consideration of the jury in estimating the amount of compensation, those and those only will be considered as covered by the sum awarded; as, for instance, where a plan was submitted to the jury, marking a particular road as a right to be preserved, it was held that they must be taken to have assessed the damages on the supposition that the road was to be preserved, there being no evidence that any thing. was laid before the jury on either side for the purpose of intimating to them that they were to value the rest of the property on the supposition of the road being taken away. (y) So where the inquisition on the face of it professes to award compensation for a particular description of injury, it will not be considered to embrace another ground of injury which is not the subject of compensation
(1) Where the land of a person incapable of consenting is taken by a company, and its value found by an inquisition, this is not a conversion of the property so as to alter its nature or quality in respect of devolution; but the compensation money devolves as the land itself would have done; Midland Counties Railway Company v. Oswin, 22 Law Journ. Ch. 209; S. C. 1 Coll. 74.
(y) Kemp v. The London and Brighton Railway Company, 1 Railw. Cas. 506. See also Rex v. The Nottingham Old Water Works Company, 6 A. & E. 355.
under the provisions of the act; even though evidence of the existence of the latter have been adduced before the jury, if this may have been done to give the sheriff and jury jurisdiction over the case. (z)
279. Where the verdict of the jury has not been recorded, parol evidence is admissible of their finding, and of the grounds on which it proceeded; as, for instance, to show that in a particular case the compensation was estimated upon the supposition of there being a total separation of an estate, and of no communication being made by the company between the parts on either side of the railway. (a)
280. WHERE OTHER SIDE THE MOVING PARTY. (b) Secondly, of the case where the other side and not the company is the active party, and the one by whom the process prescribed by the act for settling the amount of compensation in cases of dispute is sought to be set in motion. In this case the party's first step is to give the company notice of his claim. (c) The main requisites of this notice would seem to be much the same as those of a notice given by the
(1) Corrigall v. The London and Blackwall Railway Company, 21 Law Journ. C. P. 216; S. C. 5 M. & Gr. 219.
(a) Manning v. The Eastern Counties Railway Company, 22 Law Journ. Exch. 265; S. C. 12 M. & W. 237.
(b) As to method of proceeding, &c. by party claiming compensation under Lands Clauses Consolidation Act, see act, s. 68, post, App.
(c) Under Eastern Counties Railway Acts notice not neces sary before applying to magistrate to assess compensation, in cases where by those acts jurisdiction given to magistrates, and mandamus accordingly granted to magistrate to hear case, which he had dismissed for want of proof of such notice: Reg. v. Bingham, 3 Railw. Cas. 390.
company. Thus where a party sought to compel a company to take certain premises as being situate within a given distance of the railway, &c. and the notice, after giving the company information of his interest in the premises, and stating them to be within the requisite distance, &c. required a certain sum as the price of the house, and another as compensation in respect of loss, it was held to put forward the party's claim correctly. (d) In the next place he must request the company to issue their precept for the summoning of a jury in order to assess the damages; if upon this the company resist making compensation, he may then apply to the Court of Queen's Bench for a mandamus to the company to take the necessary steps for the assessment of the compensation.
281. Where the company are allowed to take possession of the land in the first instance, the application for a mandamus for the above purpose must be made within a reasonable time afterwards, or it may not be granted, especially if the owner have another remedy by ejectment. (e)
282. Provision as to giving Bond. A railway act usually provides that a party under such circumstances shall, at his own cost, before the company shall be obliged to issue their warrant to summon a jury, enter into a bond to prosecute the complaint and pay his proportion of the costs; or, in case the warrant is issued without the bond having been entered into, the company may give notice requiring
(d) Walker v. London and Blackwall Railway Company, 3 A. & E. N. S. 744.
(e) Rex v. Stainforth and Keadby Canal Company, 1 M. &
the same to be done before commencing the inquiry. Under this provision it would seem to be discretionary with the company to demand a bond or not, as they please. In the absence consequently of any demand on the part of the company, the entering into the bond is not a condition precedent to an application by the other party for a mandamus to the company to issue their warrant for the summoning of a jury. (f)
283. Sometimes, in default (g) of the company issuing their precept to the sheriff within a given time, after they have been requested so to do by the other party, the act empowers such party himself to address a request to the sheriff to summon a jury. This request should correspond in all material respects with the party's prior notice. (h)
That the officer to whom the request is addressed, in pursuance of the above provision, is a shareholder in the company, seems to constitute no objection to the proceedings, even though it is expressly guarded against in the ordinary case of the precept being issued by the company; unless, indeed, the provision made in the latter case is clearly intended by the legislature to include the one under consideration. (i)
(f) Reg. v. The North Union Railway Company, 1 Railw. Cas. 729.
(g) As to remedy of party in this case under Lands Clauses Consolidation Act, (8 Vict. c. 18,) see act, s. 68, post, App.
(h) As to what held an immaterial variance, and as to the sufficiency of such a request, though it did not state correctly the question to be referred to the jury, see Walker v. London and Blackwall Railway Company, ubi supra.
(i) Corrigall v. The London and Blackwall Railway Company, 21 Law Journ. C. P. 209; S. C. 5 M. & Gr. 219.
V.-Of moving for a New Trial, Certiorari to remove and quash Inquisition, &c.
284. Where the sheriff or other presiding officer by mistake directs the jury that the claimant's case is not within the act, and they so find accordingly, and are discharged, a mandamus lies to the sheriff, &c. to execute the precept; but the party moving for the rule cannot in such case have his costs, the necessity for the rule arising from the mistake of the judge. (k)
285. Where the act directs that the verdict of the jury and the judgment thereon shall be final and conclusive, the other party cannot move for a new trial, even though the undersheriff have excluded from the consideration of the jury one ground of damage, and the jury have found a verdict against the evidence. As this cannot be done directly, so neither can it indirectly. The court accordingly has, under such circumstances, refused to grant a mandamus to the company to issue a fresh precept. (1)
286. Where the inquisition is defective, it may be removed by writ of certiorari into the Court of Queen's Bench, and there quashed. This supposes that the writ is not taken away by statute. (m)
VI. Of the Title.
287. Upon the amount of the compensation money being fixed, either by the agreement of the parties
(k) Reg. v. Sheriff of Middlesex, 22 Law Journ. Q. B. 14 ; S. C. 3 Railw. Cas. 396.
(1) Reg. v. Eastern Counties Railway Company, 21 Law Journ. Q. B. 271; S. C. 3 Railw. Cas. 468.
(m) As to the writ of certiorari, see Cap. 7, post.