As to resort to the Court of Chancery under the above section, see Re Elliot, 2 De G. & S. 17, and Re Hawley, 2 De G. & S. 33; 12 Jur. 389. A., one of the parties to an award, had reason to believe that B. the opposite party, in whose hands the original deed of submission was, was going to make it a rule of court, and B., in point of fact, intended to do so, and was prevented by accident only. On the last day but one of the term next after making the award, A. obtained a rule nisi to set aside the award, and also a rule nisi for B. to file the submission with the master, in order to its being made a rule of court as of the day on which the motion to set aside the award was made; and that the rule to set aside the award should be drawn up on reading such rule; and the court in the following term made the rule absolute. In re Midland Railway Co. and Heming, 4 D. & L. 788.

See also Re Ware, 9 Exch. 395; 23 L. J., Exch. 145.

void through

error in form.

XXXVII. No award made with respect to any question Award not referred to arbitration under the provisions of this or the special act shall be set aside for irregularity or error in matter of form.

See Skerratt v. North Staffordshire Railway Co., ante, p. 614; Palmer v. Metropolitan Railway Co., ante, p. 614.

It is no objection that the price of the land and the compensation for damage by severance, though each is expressly claimed, are assessed in a gross sum. And a claimant in respect of land, of which he is tenant in fee, cannot object that the award assesses the compensation on the assumption that he is in possession, whereas the land is occupied by a lessee. Bradshaw's Arbitration, 12 Q. B. 562.

The proceedings under the 85th section are not necessarily invalid, because the award was signed on a day subsequent to the day on which the money was paid into court, and the bond given. Stamps v. Birmingham, Wolverhampton and Stour Valley Railway Co., 6 Rail. Cas. 123; 2 Phillips, 673; 7 Hare, 256.

In re

Dare

On a motion to set aside an award, the arbitrator's evidence is admissible to impeach the award on the ground of fraud or of mistake, either as to the subject-matter of the reference, or as to some legal principle which goes directly to the basis on which the award is founded. Rhys and Richards and The Dare Valley Railway Co., 37 L. J., Ch. 719. When the court refers a matter back to an umpire who has made an award, for reconsideration, that award is avoided altogether. Valley Railway Co. v. Rhys, 38 L. J., Ch. 417; L. R., 4 Ch. App. 554; 20 L. T., N. S. 717. Such a reference back of an award of the value of land operates as an original reference to the umpire, so that, by virtue of sect. 23, if no proceedings are taken on it for three months, the price is to be determined by a jury. Ibid. When an award has been made a rule of court, it comes within sect. 15 of the Common Law Procedure Act, 1854. Therefore, if it be referred back by the court for redetermination, and no new award be made within three months, it is still in the discretion of the court under that act to allow or not an enlargement of the term for redetermination by the arbitrator. Ibid. See notes to sect. 23, ante, p. 613 et seq.

By a submission to arbitration, under the Lands Clauses Consolidation Act, 1845, of a question of disputed compensation, the arbitrator was to determine what sum should be paid for the purchase of certain land, and what "other, if any" sum for severance damage. The arbitrator by his award, after reciting the submission and that he had considered the matters so referred to him, awarded a sum to be paid for the purchase of the land, without saying anything as to any severance damage: held, on motion to set it aside, that the award was final and good; that the

Promoters of the undertaking to give notice before summoning a jury.

Warrant for summoning jury to be addressed to the sheriff.

arbitrator, by his silence, negatived any right to compensation in respect of severance damage. In re Duke of Beaufort and Swansea Harbour Trustees, 29 L. J., C. P. 241; 8 C. B., N. S. 146.

XXXVIII. Before the promoters of the undertaking shall issue their warrant for summoning a jury for settling any case of disputed compensation they shall give not less than ten days' notice to the other party of their intention to cause such jury to be summoned, and in such notice the promoters of the undertaking shall state what sum of money they are willing to give for the interest in such lands sought to be purchased by them from such party, and for the damage to be sustained by him by the execution of the works.

See Richardson v. South Eastern Railway Co., 20 L. J., C. P. 236; 11 C. B. 151; 15 Jur. 660; Hayward v. Metropolitan Railway Co., 4 B. & S. 787; 33 L. J., Q. B. 73; 9 L. T., N. S. 680; 10 Jur., N. S. 418.

XXXIX. In every case in which any such question of disputed compensation shall be required to be determined by the verdict of a jury the promoters of the undertaking shall issue their warrant to the sheriff, requiring him to summon a jury for that purpose, and such warrant shall be under the common seal of the promoters of the undertaking if they be a corporation, or if they be not a corporation under the hands and seals of such promoters or any two of them; and if such sheriff be interested in the matter in dispute such application shall be made to some coroner of the county in which the lands in question, or some part thereof, shall be situate, and if all the coroners of such county be so interested, such application may be made to some person having filled the office of sheriff or coroner in such county, and who shall be then living there, and who shall not be interested in the matter in dispute; and with respect to the persons last mentioned preference shall be given to one who shall have most recently served either of the said offices; and every ex-sheriff, coroner, or ex-coroner shall have power, if he think fit, to appoint a deputy or

assessor.

Under the above section the company may properly issue their warrant to summon a compensation jury to the sheriff of the county where the lands are situated, although the under-sheriff be interested as a shareholder in the company; and in such a case the sheriff should either take the inquisition in person or appoint some disinterested deputy. Worsley v. South Devon Railway Co., 20 L. J., Q. B. 254; 16 Q. B. 539.

The direction in respect of the interest of the sheriff is introduced for the protection of the party against whom the interest would operate, and

he may therefore waive the protection if he so elects. Ex parte Baddeley, 5 Dowl. & L. 575; 5 Rail. Ĉas. 542. A railway company having issued their warrant to the sheriff under the above section, the under-sheriff, before whom the inquisition was to be taken, informed the party whose land was to be assessed, that he, the under-sheriff, was a shareholder in the railway company. It was held that as the party did not object, but proceeded with the inquisition before the under-sheriff, he must be taken to have waived any objection arising from the interest of the undersheriff under the statute. Ibid.

The interest mentioned by the statute must be taken to mean such an interest as would disqualify a justice of the peace at common law. R. v. Manchester, Sheffield and Lincolnshire Railway Co., 36 L. J., Q. B. 171; L. R., 2 Q. B. 336; 16 L. T., N. S. 173; 15 W. R. 676. See further as to disqualification through interest, Corrigal v. London and Blackwall Railway Co., 5 M. & G. 219; 3 Rail. Cas. 411; R. v. Rand, L. R., 1 Q. B. 230; 35 L. J., M. C. 157.

Where there are two sheriffs and one of them is interested, the warrant ought to go to the other. Letsom v. Bickley, 5 M. & S. 144.

Although by the 145th section "no proceeding, &c. shall be quashed for want of form, nor shall the same be removed by certiorari," a certiorari will issue to bring up an inquisition if the sheriff be interested. R. v. London and North Western Railway Co., 9 L. T., N. S. 423.

Where arbitration proceedings to settle compensation for land required by a railway company had gone off, owing to a disagreement about the appointment of an umpire, and the time allowed to the board of trade for making such appointment had passed, and the party claiming compensation had given notice to the company requiring them to issue their warrant for the jury to assess the amount of compensation, and, further, that in case of neglect he would apply for a mandamus to compel them: held, that the claimant was entitled, under the provisions of the act, to have his claim of compensation then settled by a jury; and that, after refusal, a mandamus lay to compel the company to issue their warrant for that purpose. In re South Yorkshire, Doncaster and Goole Railway Co., Ex parte Senior, 18 L. J., Q. B. 333; 7 D. & L. 36; 14 Jur. 1093. Held, also, that in such a case it was enough to show a refusal on the part of the company, and that no particular form or service of notice upon them was necessary under the act. Ibid.

Where the landowner having been served with notice to treat had demanded that the amount of compensation should be settled by a jury, and no further steps were taken to complete the purchase until after the expiration of the period prescribed for the exercise of the compulsory powers, it was held that the company might, on the application of the landowner, notwithstanding the lapse of time, be compelled by mandamus to issue their warrant to the sheriff to summon a jury to assess the amount of compensation. Birmingham and Oxford Junction Railway Co. v. R. (in error), 20 L. J., Q. B. 304; 15 Q. B. 634. See further, R. v. York, Newcastle and Berwick Railway Co., 6 Rail. Cas. 648; 20 L. J., Q. B. 513.

See also Morgan v. Metropolitan Railway Co., ante, p. 611; R. v. East Lancashire Railway Co., 16 L. J., Q. B. 127; 11 Jur. 169; Ex parte Parkes, 9 D. P. C. 614; 5 Jur. 435; R. v. North Union Railway Co., 1 Rail. Cas. 729; and Birch v. Marylebone Vestry, 20 L. T., N. S. 697; 17 W. R. 1014.

Where a company gives notice to a landowner, and the case is one entitling the landowner to have the amount of compensation assessed by a jury, but the company have neglected to issue their warrant to the sheriff in a reasonable time after having been required to do so, the landowner, if he is personally interested in the warrant being issued and has sustained damage or may be damaged by its not being issued, has a right to proceed under the Common Law Procedure Act, 1854, sect. 68, by an

Provisions applicable to sheriff to ap

action for a mandamus to the company to issue their warrant. Fotherby v. Metropolitan Railway Co., 36 L. J., C. P. 88; L. R., 2 C. P. 188; 12 Jur., N. S. 1005.

To an action for a mandamus in circumstances similar to those just stated, the company pleaded that when the notice was given the whole of the capital had not been subscribed. The plea was held bad on demurrer. See Guest v. Poole and Bournemouth Railway Co., 39 L. J., C. P. 329, cited ante, p. 608.

The precept must be consistent with the notice to treat. Stone v. Commercial Railway Co., 4 My. & Cr. 122; 1 Rail. Cas. 375; and see Ex parte Bailey, 1 L. & M. Bail Court Cas. 66.

If there is in a writ of mandamus a defective statement of a valid claim, but that statement renders it necessary to establish facts which, if established, would support the claim in the writ, the defectiveness, though it might be fatal on demurrer, is cured by the verdict. A landowner coinplained in his writ of mandamus that the defendants were the trustees of a navigation, that there were a lock, weir, and clows (sluices) near his land; that they were under the management of the trustees, that owing to heavy rains the water had greatly risen; that the clows were not raised to such a height to let off the water as they ought to have been, and, but for possible damage to works of the trustees in another place, would have been, whereby he suffered damage; but he did not allege that the effect of the lock, weir, and clows was to raise the water higher than it would have risen had they not existed. The issue on the return and pleadings was whether the damage was occasioned on account of the navigation : it was held, that the allegations in the writ, though they might have been insufficient on demurrer, were, after verdict, sufficient to warrant judgment for the prosecutor. Delamere v. The Queen, L. R., 2 H. L. 419.

XL. Throughout the enactments contained in this act relating to the reference to a jury, where the term “sheriff” ply to coroner. is used, the provisions applicable thereto shall be held to apply to every coroner or other person lawfully acting in his place, and in every case in which any such warrant shall have been directed to any other person than the sheriff, such sheriff shall, immediately on receiving notice of the delivery of the warrant, deliver over, on application for that purpose, to the person to whom the same shall have been directed, or to any person appointed by him to receive the same, the jurors' book and special jurors' list belonging to the county where the lands in question shall be situate.

Jury to be summoned.

See R. v. Perkin, 7 Q. B. 165.

XLI. Upon the receipt of such warrant the sheriff shall summon a jury of twenty-four indifferent persons, duly qualified to act as common jurymen in the superior courts, to meet at a convenient time and place to be appointed by him for that purpose, such time not being less than fourteen nor more than twenty-one days after the receipt of such warrant, and such place not being more than eight miles distant from the lands in question, unless by consent of the

parties interested, and he shall forthwith give notice to the promoters of the works of the time and place so appointed by him.

The remedy where some of the jury were not qualified to act is by challenge, and not by motion to set the verdict aside. In re Chelsea Waterworks Co., 10 Exch. 731; 24 L. J., Ex. 79; see also Trustees of Emanuel Hospital, Westminster v. Metropolitan District Railway Co., 19 L. T., N. S. 692.

XLII. Out of the jurors appearing upon such summons Jury to be impannelled. a jury of twelve persons shall be drawn by the sheriff, in such manner as juries for trials of issues joined in the superior courts are by law required to be drawn, and if a sufficient number of jurymen do not appear in obedience to such summons the sheriff shall return other indifferent men, duly qualified as aforesaid, of the bystanders, or others that can speedily be procured, to make up the jury to the number aforesaid: and all parties concerned may have their lawful challenges against any of the jurymen, but no such party shall challenge the array.

XLIII. The sheriff shall preside on the said inquiry, and Sheriff to preside, witnesses the party claiming compensation shall be deemed the plaintiff, to be sumand shall have all such rights and privileges as the plaintiff moned. is entitled to in the trial of actions at law; and if either party so request in writing, the sheriff shall summon before him any person considered necessary to be examined as a witness touching the matters in question, and on the like request the sheriff shall order the jury, or any six or more of them, to view the place or matter in controversy, in like manner as views may be had in the trial of actions in the superior courts.

As to the meaning of the words "all the rights and privileges as the plaintiff," see R. v. Gardner, 6 Ad. & E. 117; and R. v. Sheriff of Warwickshire, 2 Rail. Cas. 661.

XLIV. If the sheriff make default in any of the matters hereinbefore required to be done by him in relation to any such trial or inquiry, he shall forfeit fifty pounds for every such offence, and such penalty shall be recoverable by the promoters of the undertaking by action in any of the superior courts; and if any person summoned and returned upon any jury under this or the special act, whether common or special, do not appear, or if appearing he refuse to make oath, or in any other manner unlawfully neglect his duty, he shall,

W.

S S

Penalty on sheriff and jury for default.