No. 15.- Buccleuch v. Metr. Board of Works, L. R., 3 Ex. 325, 326. were taken away, it cannot be doubted he would be able to maintain his action. Then, this being so, why is he not entitled to compensation against the defendants who, under their Act, have destroyed his water access? It has been said that there are cases where there might be an action, but no claim for compensation; but I am myself at a loss to conceive what they can be. The right to an action and the claim for compensation seem to me to be co-extensive. It is further said that the question of injury ought to have been left to the jury; but if the proceedings of the defendants would, in the absence of statutory powers, have founded an action, and therefore did found this claim, there really was nothing to leave to them, except whether the defendants actually had done the works complained of as to which there was no dispute. But it is also objected that the umpire, according to his own evidence, has given a certain amount for loss of privacy, or "amenity" to the house, and that he had no right to give anything for such a head of claim. This may, perhaps, be the case; but when the evidence is looked at, it amounts, so far as it is relevant, only to this, that the umpire has found that by reason of the substitution of the proposed highway for the water the premises were injuriously affected; and from this point the evidence seems to me to be irrelevant. Once establish that the defendants have taken away the area of water, and you have an act proved to have been done whereby the plaintiffs were affected injuriously, and all the rest of the evidence is merely on a question of amount. The umpire was called to say how much and for what he gave certain sums, and, taking a great number of circumstances into consideration, he arrived at £8325. In my judgment, however, his evidence on this question, it being one purely of amount which was for him to decide, is irrelevant even if it were properly admissible. But if I were called on to consider these various items, I should hold that they were rightly awarded. It cannot be that the plaintiff is entitled to the same damages only, no matter whether something agreeable or convenient has been substituted for the former condition of his premises, or something such as a bank of mud, for example, which may be the subject of daily and hourly annoyance. It seems to me that a [* 326] jury or the umpire may well take in account the new state of the premises when the fact of their being in some way No. 15.Buccleuch v. Metr. Board of Works, L. R., 3 Ex. 326, 5 Ex. 224. injuriously affected is established. The substance of this case, As to the sum of £50 given for structural damage to the kitchen, it really falls within the previous observations, because the injury to the kitchen may be treated as an “injurious affection" of the premises. But I do not put my decision about it on that ground simply. The umpire, in his evidence, stated, among the details he gave, that £50 was for this damage, and the defendants now say that no evidence was given at the trial of its having occurred. The plaintiff certainly did not prove it; but this objection should have been taken then, so as to give him an opportunity of doing so. The defendants, however, did not take it, and they cannot avail themselves of it now. This rule must therefore be discharged. [L. R. 5 Ex. 224.] This judgment of the Court of Exchequer was brought, by way of appeal, before the Exchequer Chamber.. The Court (consisting of BLACkburn, J., KEATING, J., LUSH, J., MELLOR, J., MONTAGUE SMITH, J., WILLES, J., and BRETT, J.,) were unanimously of opinion (in accordance with the Court below) that the evidence of the umpire was admissible for the purpose of showing whether he had or had not exceeded his jurisdiction; but by a majority (BLACKBURN, J., KEATING, J., MELLOR, J., and LUSH, J., against WILLES, J., M. SMITH, J., and BRETT, J.) they held that the general depreciation which the arbitrator had taken into account was not a matter arising from the severance of the land, and consequently was not within the matters submitted under the provisions of the Lands Clauses Act 1845. They accordingly reversed the judgment of the Court of Exchequer. The following judgment of BLACKBURN, J. (which was concurred in by KEATING, J., and LUSH, J.), so far as relates to the question of admissibility of the evidence referred to and incorporated in the opinion hereinafter set forth of the same learned judge delivered in answer to questions of the No. 15. Buccleuch v. Metr. Board of Works, L. R., 5 Ex. 224-229. House of Lords is, so far as relates to that question, here set forth. BLACKBURN, J. This was an action on an award by [225] an umpire assessing the compensation due to the plaintiff in respect of his claim upon the defendants as promoters of the Thames Embankment Act 1862, at £8325, and was brought to recover that sum with interest and the costs of the reference. The Thames Embankment Act 1862, incorporates the Lands Clauses Act 1845; and the umpire was duly appointed under the 68th section of that Act. The verdict was found for the plaintiff, subject to points reserved at the trial, which were raised by the issues joined on the 3rd and 7th pleas, and are distinct. . . The 7th plea avers that the sum of £8325 was one entire and unseverable sum, and that the said sum includes damages and compensation for matters and things in respect of which the umpire had no power or right to assess damages or compensation, and over and in respect of which he had no jurisdiction. The plaintiff joined issue on these pleas, and obtained particulars of the 7th plea under a judge's order. [After dealing with the question of title under the 3rd plea the learned judge proceeded]: --- The issue on the 7th plea gives rise to questions of [228] greater general importance, and in my opinion of much more difficulty. The defendants called the umpire as a witness; and from his evidence, which is set out in the case, it appears that in assessing the compensation he took into consideration the taking away of the causeway, and blocking up of the landing place, and some slight structural injuries to the buildings, the direct compensation for which he valued at £250; and that he also took into consideration that the bringing the promoters' works so near to the plaintiff's mansion, affected its value by taking away the privacy of the garden, &c., so as, in his opinion, greatly to reduce its selling or letting value, and that the compensation for this depreciation formed the residue of the large sum awarded. On this, two points were reserved, first, [229] whether the evidence of the umpire was admissible at all; and, secondly, whether it showed that the award had been given for something which the umpire had no power to give. If the plaintiff is right on either of those points, he is entitled to retain his verdict. No. 15. Buccleuch v. Metr. Board of Works, L. R., 5 Ex. 229, 230. The Court below were unanimous in their judgment that the plaintiff was entitled to retain his verdict, but were not agreed in their reasons, the majority, consisting of the Chief Baron and my Brothers Martin and Channell, being of opinion that the evidence of the umpire was admissible, but that it showed that the umpire proceeded on a right ground, and that the award was good; my Brother Bramwell being of opinion that the evidence was not admissible, but that if admitted it showed that the award was made on a principle which he inclined to think was wrong, though he doubted whether the finding of the umpire could be reviewed. And now both questions come before this Court, which is, therefore, required as a Court of Error to decide those points. The 7th plea itself is not demurred to, and all that we have now to consider is, whether the substance of it was proved. But, in considering this, we unavoidably inquire what that substance is, and so, collaterally as it were, consider whether the plea is good; and it seems to me that it is good. An award is the decision of one having a limited authority to determine those matters submitted to him by the parties, or, as in the present case, by a statute, and no other. And from this it follows that if that limited authority has not been pursued, and the arbitrator has awarded something beyond the authority, the award is pro tanto void, and if the void part is so mixed up with the rest that it cannot be rejected, the award is void altogether, otherwise those against whom the award is made would be compelled to fulfil the void part. And I think, both on authority and principle, this is a matter which may be pleaded as a defence to an action. In old times the only way of enforcing an award was by action upon it, and the only mode of resisting the enforcement of the award was by pleading to that action, and consequently all the old authorities, to the effect that an award is void for excess of jurisdiction, are authorities that it may be shown in evidence at the trial under a proper plea. [* 230] Those old authorities are very numerous; * it is sufficient to refer to those mentioned in Comyns' Digest, Arbitrament, E. 1. But if the arbitrator had, whilst his authority was. unrevoked, actually decided the matter which he was called upon to decide, it was no defence at law to an action on the award that he had misconducted himself, or improperly rejected evidence, or even been induced to come to that decision by the fraud No. 15. Buccleuch v. Metr. Board of Works, L. R., 5 Ex. 230, 231. of the plaintiff now seeking to enforce the award; though these facts might afford grounds for obtaining relief in equity, see Veale v. Warner, 1 Wm. Saund. 327 a., note 3. A practice arose first in the time of Charles II. of making submissions a rule of court, so as to render any misconduct under that submission, or any refusal to act on the award, a contempt of that Court, and so give that Court jurisdiction over the award and the parties to the submission; and this practice gave rise to the various enactments under which a Court of law now has extensive powers over the reference. Those powers, however, must be exercised by the court in a summary way; and the statutes neither take away any defence given by common law, nor enable any defendant in an action to set up any defence which he could not have so set up before. Accordingly it still remains open to a party to plead to an award any matter which shows that the arbitrator has not pursued his authority; either, in cases where he is required to make a final determination on all matters, by not determining some matter brought before him which he ought to determine, Mitchell v. Stavely, 16 East, 58, 14 R. R. 287; or, by including in his award something which he had no authority to entertain, and which could not be severed from the rest and rejected. v. Midland Ry. Co., L. R., 1 C. P. 241; 37 L. J. C. P. 11. Nor is it, I think, any objection to such a plea that the award is good on the face of it, so as to purport to be a decision on all matters which ought to be decided, and only on matters within the authority; though where that is the case it renders it more difficult to prove that the award was, in fact, a decision on matters not within the authority. The award is the judgment of an inferior tribunal having a limited authority, and the law is, I think, accurately stated in the very learned opinion delivered by WILLES, J., in Mayor, &c. of London v. Cox, L. R., 2 H. L. at p. 262; 36 L. J. Ex. 232: "The judgment of an inferior * Court involving a question of jurisdiction, is not final. [* 231] If the decision be for the defendant there is nothing to estop the plaintiff from suing over again in a superior Court, and insisting that the decision below had turned, or might have turned, upon jurisdiction. If the decision were in favour of the plaintiff, it is still not conclusive, because the rule, that in inferior Courts and proceedings by magistrates the maxim, omnia præsumuntur rite esse acta, does not apply to give jurisdiction, Beckett |