Court doth adjudge and order the said several sums of "Wood, clerk of the peace." In the margin was written, "The jury, on returning their verdict, added that, had it not been a waste water cut, they would not have given so much. Tho. Dalton, Dy C. P." The sums awarded not having been paid, a rule nisi was obtained, in Michaelmas term 1838, for a mandamus to the trustees to pay the several sums awarded by the jury and adjudged by the Court, at the said quarter sessions, to be paid to the said Thomas Starling Benson. And in the same term the trustees obtained a rule nisi for a certiorari to remove into this Court the inquisition, verdict, and judgment. The solicitor to the trustees, in his affidavits against and for the above rules respectively, stated, as an objection to the verdict, that the jury had, as he was advised and believed, exceeded their powers in giving damages with reference to the cut mentioned in the inquisition being a waste water cut and not navigable. He also stated that, as he was advised and believed, the inquisition was defective and illegal, because it did not shew on the face of it that the proceeding thereunder was warranted by the act, and did not recite or state either the existence of differences between Mr. Benson and the trustees, the issuing of a warrant to impannel and summon the jury, nor any of the circumstances necessary under the act to give the jury and quarter sessions jurisdiction; and did not state any thing on which a decision as to costs could be pronounced. VOL. VIII. G g By 1839. The QUEEN against The Trustees of SWANSEA Harbour. 1839. The QUEEN against The Trustees of SWANSEA Harbour. By the affidavits on Mr. Benson's part it appeared that, after some negotiation between him and the trustees, they offered a certain sum per acre for the land to be taken, but proposed at the same time that, to avoid delay, the trustees should have immediate possession, paying 5 per cent. interest, from the day of the offer, on the amount thereafter to be ascertained. Mr. Benson consented to the proposal as to possession and interest, but requested that a jury might be summoned to ascertain the value. An agreement was made, as suggested by the trustees; and, in pursuance of the arrangement between them and Benson, a jury was summoned, and the inquisition held, the trustees, by their counsel and solicitor, taking part in the proceedings. Mr. Benson stated in his affidavit that the trustees had, as he was informed and believed, taken possession of the lands and exercised acts of ownership over them. The two rules were now discussed together. Sir J. Campbell, Attorney-General, and J. Henderson, for the trustees. The act creates a jurisdiction with a limited authority, which must be strictly pursued. The inquisition, by sect. 39, is made a record; and, being a record of an inferior court, it must shew that such proceedings were taken as gave the Court jurisdiction. That, in the present case, would depend upon the circumstances, enumerated in sect. 33, under which the trustees are empowered to summon a jury. The record here does not shew that any of those circumstances had occurred. In Rex v. The Trustees of the Norwich and Watton Road (a) the objection, that a notice to treat, (a) 5 A. & E. 563. which was necessary to give jurisdiction, did not appear on the inquisition, was countenanced by the majority of the Court. Here the same defect exists. Rex v. Bagshaw (a), and Rex v. the Mayor, &c., of Liverpool (b), are decisive authorities in support of this objection, which is also sustained by Rex v. Manning (c). Further, the record of quarter sessions ought to have shewn how the costs were to be disposed of: but it does not appear by the inquisition whether the sum awarded by the jury was greater or less than that offered by the trustees, or the same. A mandamus ought not to issue, because the trustees have not yet obtained any valid title to the land. All the facts stated on the inquisition may be true, and yet it may not constitute an available titledeed. The trustees have possession; but they entered under an agreement to pay interest on the amount of purchase-money and recompence to be afterwards ascertained. That has not yet been ascertained conclusively. The Sir W. W. Follett and E. V. Williams, contrà. sheriff's jury are not called upon to inquire what sum was originally offered, nor have they any thing to do with the costs: those, when payable by the trustees, are to be recovered before a justice; and it is for him to inquire what offer was made. Nor is it necessary that the jury should examine or decide as to the twenty-one days' notice. The inquisition, in this case, is contested by the very parties at whose instance it was taken: they themselves have entered up, or caused to be entered up, the judgment, and cannot, therefore, impeach its correct (a) 7 T. R. 363. Gg 2 (b) 4 Burr. 2244. ness 1839. The QUEEN against The Trustees of SWANSEA Harbour, 1839. The QUEEN against The Trustees Harbour. ness to the prejudice of the opposite party. This line of argument was taken, and adopted by the Court, in the case In the Matter of the London and Greenwich Railway Comof SWANSEA pany (a). Where the Court has appeared to countenance such objections, they have been raised by the party against whose property the proceedings were instituted; as in Regina v. The Manchester and Leeds Railway Company (b). It cannot be stated as an invariable rule that the inquisition must disclose the facts which led to its being taken. Parties may expressly agree to go before a jury, waiving any reference to the preliminary circumstances; those circumstances would then not appear on the inquiry; yet the inquisition would be good. [Lord Denman C. J. mentioned Regina v. The Committee Men for the South Holland Drainage (c).] Here the parties went before the jury in pursuance of an arrangement, under which the trustees were let into possession. On the inquiry the trustees appeared, and were heard. Can they now object to the assessment? A justice, before he can convict, should summon the party charged; and the conviction should state that he did so: but, if the party appears voluntarily, a summons need not be issued or alleged. The only point material, as a preliminary to this inquisition being taken, was, that the parties should have disagreed about price; and that sufficiently appears by the record. In Rex v. Bagshaw (d) and Rex v. The Trustees of the Norwich and Watton Road (e) the trustees, who set the proceedings in motion, had something to do for the purpose of creating a jurisdiction; and the opposite party objected that that had not been (a) 2 A. & E. 678. (b) Antè, p. 413. done. 1839. The QUEEN against The Trustees Harbour. done. But in Rex v. Bagshaw (a) it is clear that the objection would have been unavailing, if it had distinctly appeared that the objecting parties had attended the inquiry. No particular form of record is required by of SWANSEA stat. 6 & 7 W. 4. c. cxxvi. The want of jurisdiction, in this case, would be matter of evidence, if it could be entered into. The form here used is one which has been ordinarily adopted; the objection, if admitted, would overthrow inquisitions affecting a great amount of property. Rex v. The Nottingham Old Water-works Company (b) shews that a mandamus lies to enforce this judgment. There the local act contained a clause like sect. 39 of stat. 6 & 7 W. 4. c. cxxvi., directing that the verdicts and judgments should be kept among the records of the quarter sessions, and should be deemed records to all intents and purposes: but this Court said it was not clear that a remedy other than mandamus could be enforced on such judgments, and they granted the writ. (E. V. Williams was stopped by the Court.) Lord DENMAN C. J. This is an inquisition obtained by the trustees, who were bound to set in motion the necessary machinery for obtaining the land. They, therefore, cannot object that the inquisition is defective. In the other cases which have been cited, the applications were made by the parties whose lands were taken. In Rex v. Bagshaw (a) it did not appear that the objecting party had been heard on the inquiry. Here it is otherwise; and I am not prepared to say that this inquisition is not good. The rule for a mandamus will be absolute: the rule for a certiorari discharged. (a) 7 T. R. 363. (b) 6 A. & E. 355. Gg 3 LITTLEDALE |