*IN THE EXCHEQUER CHAMBER.

[*810

THE SOUTH-EASTERN RAILWAY COMPANY v. RICHARDSON. Feb. 5.

In an action under the 68th section of the Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18, to recover compensation in respect of lands "damaged or injuriously affected" by the execution of the works of a railway company, the declaration stated that the plaintiff claimed 10007., that the company had notice of his claim, and offered him 607., and that a jury empanelled pursuant to the provisions of the act awarded him 2157. :-Held, by the Exchequer Chamber, affirming the judgment of the court below, that the plaintiff was entitled to the costs of the inquiry before the sheriff,-the 51st section, which provides for such costs, being virtually incroporated in the 68th.

THIS was an action of debt. The declaration stated, that, before and at the time of the giving the notice thereinafter next mentioned, and after the passing of the Lands Clauses Consolidation Act, 1845, and after the passing of the Railways Clauses Consolidation Act, 1845, and after the passing of a certain other act of parliament made and passed in the session of parliament holden in the ninth and tenth years of the reign of her present Majesty, intituled "An act to make a railway from the London and Greenwich Railway to Woolwich and Gravesend," the plaintiff was seised of the inheritance in fee-simple in possession of an estate situate and being in Marshall's Grove, Woolwich, in the county of Kent, and adjoining the south side of the said railway authorized to be constructed, and constructed, by the defendants, under and by virtue of the provisions of the said last-mentioned act, consisting of nine messuages or cottages, with the gardens and yards in the rear thereof, and being No. 1 to No. 9 inclusive in the said Marshall's Grove: That, by reason of the last-mentioned railway having intersected and cut off the roadway adjoining the north side of the said estate of the plaintiff, and having thereby destroyed or obstructed the immediate approaches thereto; and also by the execution of the works by the last-mentioned act authorized to be *executed, and by the construction of the said last-mentioned [*811 railway, the said estate of the plaintiff was greatly damaged and injuriously affected: That, before the giving of the said notice thereinafter next mentioned, to wit, on the 1st of January, 1849, the defendants took possession of and seized and converted to the purposes of their aforesaid railway, or the works connected therewith, a piece of ground at the north-east angle of one of the aforesaid messuages or cottages, by reason whereof the said estate of the plaintiff was further greatly damaged and injuriously affected, and the plaintiff, by reason of the several premises aforesaid, sustained a loss, and claimed to be entitled to compensation in respect thereof from the defendants, to an amount exceeding 501., to wit, to the amount of 1000l.: That, afterwards, the plaintiff being so interested in the said estate, and the same VOL. XV.-68

being so injuriously affected as aforesaid, and the plaintiff having sustained such loss as aforesaid, and being entitled to compensation in respect thereof as aforesaid, and being desirous of having the question of compensation settled by a jury, to wit, on the 9th of March, 1850, he the plaintiff did give a notice in writing to the defendants, and did thereby and therein state to the defendants the said nature of his interest in the said hereditaments in respect of which he claimed compensation, and that he claimed from the defendants compensation in respect of the said loss and injury, and that 1000l. should be paid by the defendants to him the plaintiff for such compensation; and the plaintiff did also by the said notice state to the defendants that it was the desire of him, the plaintiff, that the question of the aforesaid compensation should be settled by a jury in the manner pointed out in that behalf by the Lands Clauses Consolidation Act, 1845, unless the defendants should be willing to pay the aforesaid amount of 1000l. as compensation, which the plaintiff thereby *claimed, and enter, within the time limited *812] by the said statute in that behalf, into an agreement for that purpose: That the defendants afterwards, to wit, on the 20th of March, 1850, gave to the plaintiff a certain notice in writing, whereby, after reciting the said notice so given by the plaintiff to the defendants as aforesaid, they the defendants made known to the plaintiff that they the defendants were ready and willing, and thereby offered, to pay to the plaintiff the sum of 607. in satisfaction and discharge of the injury and damage alleged to have been sustained by the plaintiff, and in respect of which the said sum of 1000l. was so claimed by the plaintiff as aforesaid: That the defendants did not nor would pay the amount of compensation so claimed by the plaintiff as aforesaid, nor did nor would enter into a written agreement for that purpose: That the defendants, within twenty-one days after the receipt of the said firstmentioned notice to them so given as aforesaid, to wit, on the 28th of March, 1850, did, according to the form of the first-mentioned statute, issue their certain warrant in writing, under the common seal of the defendants, and directed to the sheriff of the county of Kent, whereby, after reciting and referring to the several notices aforesaid, the defendants, pursuant to the powers and authorities given to them by the statutes in that behalf, required the said sheriff to nominate and summon a special jury to inquire of and assess the compensation, if any, to be paid to the plaintiff in respect of the several supposed matters in his said notice alleged, or any of them, in respect whereof he had therein claimed compensation; and the defendants did by their said warrant further require the said sheriff to issue such summons, and do all such things in relation to the said trial or inquiry, as were authorized and required to be done by the Lands Clauses Consolidation Act, 1845, and by the *said company's act: That afterwards, to wit, on the 24th of April, 1850, within the said bailiwick of the said sheriff, to

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wit, at Woolwich, in the county of Kent, a certain inquisition was taken in pursuance of and in accordance and compliance with the last-mentioned request, before Matthew Bell, Esq., then being sheriff of the said county of Kent, by A. B., C. D., &c., twelve honest, lawful, sufficient, and indifferent men of the said county qualified to serve on juries for trials of issues in Her Majesty's courts of record at Westminster, who were duly impannelled, summoned, returned, and drawn pursuant to the provisions of the statute in that behalf, by the said Matthew Bell, at the time of the said request, and then, being sheriff of the said county of Kent as aforesaid, and who were by and before such sheriff, at the time and place last aforesaid, duly sworn to inquire of and concerning the matters in the said warrant in that behalf mentioned, and thereby referred to, to be inquired of, assessed, ascertained, and determined by them, in manner therein mentioned; and the plaintiff and the said defendants, by their counsel respectively, having, at the time and place of the holding the said inquisition, appeared before the said sheriff and the said jurors, and having respectively adduced evidence before the said sheriff and jurors touching the matters so in question as aforesaid, the said jurors upon their oath did find their verdict that the plaintiff had sustained damages to the amount of 215l., by means of the several matters mentioned in his said notice, and that the defendants should pay to the plaintiff the said sum of 2157.; and the said sheriff did then and there, accordingly, pursuant to the statute in that behalf, give judgment for the said sum of 2157. so assessed by the said jury, to be paid by the defendants to the plaintiff according to the provisions of the said statutes; and the said verdict and judgment were then and there, to wit, at *the time and place of holding the [*814 said inquisition as aforesaid, duly signed by the said sheriff: That, the said verdict and judgment, being so duly signed as aforesaid, were afterwards, and before the commencement of this suit, to wit, on the 1st of May, 1850, duly deposited and left by the said sheriff with the clerk of the peace of the said county of Kent, to be by him kept, and the same are now by him kept, amongst the records of the Quarter Sessions of the said county of Kent, and the said verdict and judgment still remained among the records of the said Quarter Sessions of the said county of Kent, in full force and effect, and in no wise satisfied, reversed, or annulled: That the said sum of 2157. for which the verdict of the jury was so given as aforesaid, was and is a greater sum than the said sum of 60l. so previously offered by the defendants as aforesaid; by reason whereof the defendants became and were liable to pay to the plaintiff his the plaintiff's costs of the said inquiry: That afterwards, and before the commencement of this suit, to wit, on the 1st of June, 1850, the plaintiff's costs of the said inquiry were settled by Richard Goodrich, then being one of the masters of the Court of Queen's Bench at Westminster, at a certain sum, to wit, the sum of 2437. 18.

3d., of all which the defendants, afterwards, and before the commencement of this suit, to wit, on the day and year last aforsaid, had notice: By reason of which said premises, and by force of the statutes in that behalf, an action had accrued to the plaintiff to demand and have of and from the defendants the said sum of 2157., and also the said sum of 2431. 18. 3d., amounting in the whole to the sum of 458l. 1s. 3d., being the sum above demanded; yet that the defendants had not paid the said sum above demanded, &c.

The defendants pleaded, as to so much of the declaration as related to the said sum of 2157., parcel, &c., *payment into court: and, *815] as to the residue of the declaration,-viz. the claim for costs of the inquiry before the sheriff,-demurred generally.

The plaintiff joined in demurrer; and, upon the argument of the demurrer, the Court of Common Pleas gave judgment for the plaintiff below, holding, that, although no mention is made of the costs in the 68th section of the 8 & 9 Vict. c. 18, under which the proceedings took place, the plaintiff below was entitled to them by virtue of the 51st section, which is virtually incorporated into the 68th.-Vide 11 C. B. 154 (E. C. L. R. vol. 73).

Upon this judgment, the defendants below brought a writ of error, which now came on for argument before Parke, B., Patteson, J., Alderson, B., Coleridge, J., Wightman, J., Erle, J., Platt, B., and Martin, B.

Watson, for the plaintiffs in error.-The plaintiff below was not entitled to the costs of the inquiry before the sheriff under the 68th section of the 8 & 9 Vict. c. 18. That section enacts, "that, if any party shall be entitled to any compensation in respect of any lands, or of any interest therein, which shall have been taken for or injuriously affected by the execution of the works, and for which the promoters of the undertaking shall not have made satisfaction under the provisions of this or the special act, or any act incorporated therewith, and if the compensation claimed in such case shall exceed the sum of 50l., such party may have the same settled, either by arbitration or by the verdict of a jury, as he shall think fit; and, if such party desire to have the same settled by arbitration, it shall be lawful for him to give notice. in writing to the promoters of the undertaking of such his desire, stating in such notice the nature of the interest in such lands in respect of which he claims compensation, and the amount of the compensation so claimed therein; and, unless the promoters of the *816] undertaking be willing to pay the amount of compensation so claimed, and shall enter into a written agreement for that purpose within twenty-one days after the receipt of any such notice from any party so entitled, the same shall be settled by arbitration in the manner herein provided; or, if the party so entitled as aforesaid desire to have such question of compensation settled by a jury, it shall be lawful for him to give notice in writing of such his desire to the promoters

of the undertaking, stating sách particulars as aforesaid; and, unless the promoters of the undertaking be willing to pay the amount of compensation so claimed, and enter into a written agreement for that purpose, they shall, within twenty-one days after the receipt of such notice, issue their warrant to the sheriff to summon a jury for settling the same in the manner herein provided, and, in default thereof, they shall be liable to pay to the party so entitled as aforesaid the amount of compensation so claimed, and the same may be recovered by him, with costs, by action in any of the superior courts." The section makes no provision for the costs of the inquiry where a jury is summoned: and the provision at the end of the clause, for the costs of an action, where the promoters decline or omit to issue their warrant for summoning a jury, shows the omission to have been intentional. The promoters were not bound to make an offer of compensation. The 68th section contains the sole provision for compensation in the case of lands which have been taken for or injuriously affected by the execution of the works. The clauses which relate to the assessing by means of a jury or an arbitrator the compensation for lands about to be taken by the company, or for damage to be sustained by the execution of the works, are the 38th to the 56th; and in those cases the promoters are *to give notice, and to state therein what sum they are willing to pay, (a) [*817 and they are liable to costs where the jury give a greater sum by way of compensation than the sum so offered. (b) The last-mentioned provision cannot apply to a case where no offer of compensation is requisite or has been made by the promoters. The result of the inquiry might be that the claimant had sustained no damage: The Queen v. The Lancaster and Preston Junction Railway Company, 6 Q. B. 759 (E. C. L. R. vol. 51). It has been held that the notice mentioned in s. 38 is not necessary or applicable in the case of proceedings under s. 68: Railstone v. The York, Newcastle, and Berwick Railway Company, 15 Q. B. 404 (E. C. L. R. vol. 69). That was an action of debt for the amount of compensation claimed by the plaintiff under s. 68,

(a) The 38th section enacts, that, "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 such works."

(b) The 51st section enacts, that, "on every such inquiry before a jury, where the verdict of the jury shall be given for a greater sum than the sum previously offered by the promoters of the undertaking, all the costs of such inquiry shall be borne by the promoters of the undertaking; but, if the verdict of the jury be given for the same or a less sum than the sum previously offered by the promoters of the undertaking, or if the owner of the lands shall have failed to appear at the time and place appointed for the inquiry, having received due notice thereof, one-half of the costs of summoning, impannelling, and returning the jury, and of taking the inquiry and recording the verdict and judgment thereon, in case such verdict shall be taken, shall be defrayed by the owner of the lands, and the other half by the promoters of the undertaking, and each party shall bear his own costs, other than as aforesaid, incident to such inquiry."