28th of November, he incurred before the 4th of December considerable costs in preparing for the inquiry and to prove his claim.

On the 15th of December the inquiry was held, and the jury assessed the damages at 751. The claimant's attornies afterwards applied to one of the Masters of this Court to have the claimant's costs of the inquiry taxed, whereupon the attorney for the Board contended that the claimant had been deprived of his costs by reason of the offer of 100l. made within the 8 & 9 Vict. c. 18. The claimant's attornies contended that the offer was too late, and was bad, both because it included the claimant's costs and also because it was not under the seal of the board. After hearing both parties, the Master held that the claimant was entitled to his costs of the inquiry, but declined to state the grounds of his decision, and he taxed the costs at 1561., and that part of them (including the costs of attending to nominate the special jury) which was incurred before the service of the notice of the 4th of December stating the time and place of inquiry, he taxed at 40l. 10s.

Section 51. of the Lands Clauses Consolidation Act, 1845, 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, impanelling 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. The provisions of this act (except those with respect to the recovery of forfeitures, penalties and costs) are incorporated with the Metropolis Local Management Act, 1855, 18 & 19 Vict. c. 120, by section 151; and the expression "the promoters of the undertaking" used in the former act is to mean the Metropolitan Board, or the district board of vestry, as the case may be.

Tindal Atkinson, Serj., and Shaw now shewed cause.-The offer is not such as is contemplated by section 51. of the 8 & 9 Vict. c. 18, for, first, it was not made in time. It is conceded that if this had been a common jury case, it would have been in time, but the claimant had incurred the expense of attending at the nomination of the special jury before the offer was made, and those costs are certainly recoverable under section 54, even if the other previous expenses were not. If, therefore, the claimant were forced to accept the offer, then he would be in a worse position than if he went to the jury, for in the latter case he recovers the costs as well as the compensation; but if he accepts the bare offer, he pays his own costs. The statute cannot therefore have intended to compel him to accept such an offer. According to the decisions the true test is that of reasonableness. In The Metropolitan Railway Company v. Turnham (32 Law J. Rep. (N.S.) M.C. 249) Chief Justice Erle said the offer should be made previous to the ten days' notice of inquiry, and Mr. Justice Willes said (p. 254), no reasonable notice can be given after the time at which, by the practice of the common law Courts, the parties may incur the expense of preparing for trial. Here the offer was contemporaneous with the ten days' notice of inquiry, and the claimant had incurred the expense of preparing for trial. In Hayward v. the Metropolitan Railway Company (33 Law J. Rep. (N.s.) Q.B. 73; s. c. 4 Best & S. 787) the second offer was held in time, but there it was made before the special jury were nominated, and my contention is consistent with the principle of that case, and of Yates v. the Mayor, &c., of Blackburn (29 Law J. Rep. (N.s.) Exch. 447; s. c. 6 Hurl. & N. 61). Secondly, the offer was bad, because clogged with a condition as to costs. The jury can only consider the injury done and

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the value of the land taken, and this offer might include subject-matter for which we had a right of action against the Board; and, thirdly, the notice of offer ought to have been under the seal of the Board, under the 18 & 19 Vict. c. 120. s. 149, or signed by the clerk of the Board or one of their officers, under section 222. 'N. Lindo & Sons are the agents of the solicitor to the Board, and neither a clerk nor an officer.

[LUSH, J.-Why should not Lindo be an officer pro hac vice?] Montagu Chambers and Raymond, in support of the rule. As to the last point, the signature is sufficient.

[COCKBURN, C.J.-You need not notice that. There is nothing in it.] First, the offer was in time. The claimant's original notice of claim was under section 68. of the 8 & 9 Vict. c. 18, and section 38 has been decided not to apply to such a case. The cases cited are in our favour. In Hayward's case (33 Law J. Rep. (N.s.) Q.B. 73; s. c. 4 Best. & S. 787), Chief Justice Cockburn cites the opinion of the Common Pleas, that "Any time beyond ten days (the time from notice of trial to the trial) is a reasonable period; and Mr. Justice Blackburn says, "Any offer made by the company previous and up to the time of giving the notice of the time and place of inquiry, is an offer under section 51" (33 Law J. Rep. (N.s.) Q.B. 78, 79). The expenses of attending the nomination of the jury could only be 13s. 4d., and the claimant need not have incurred even that; but the Master has allowed many other expenses.

[BLACKBURN, J.-Yes; but in all actions many costs are necessarily incurred, which are recoverable if notice of trial is given, and not otherwise. It is one of the hardships on a suitor. A solicitor would be guilty of negligence if he did not prepare for trial and incur expenses which may never be recovered as costs.]

The rule laid down in Hayward's case (33 Law J. Rep. (N.s.) Q.B. 73; s. c. 4 Best & S. 787) is a simple one; but if the question of striking a special jury be introduced, then it may be necessary to inquire which party demanded a special jury. Here the expense of reducing the jury was not incurred. Moreover, sections 51. and 52. only contemplate the costs of "summoning, impanelling and returning the jury." The claimant had ample time to consider whether the offer of 100l. was enough before he incurred expenses and actual litigation had begun. Secondly, the words in the offer relating to the claimant's costs are to be rejected as mere surplusage. They could not have misled the claimant, who must be taken to know that they had no meaning. The only object of the offer was to come within section 51.

[BLACKBURN, J.-The words must either be a nullity, or make the offer bad; for the Master cannot know, on taxing, how much the jury intended for compensation; and how much for costs. The words, moreover, might mislead the claimant. If he accepted the offer he might be abandoning costs to which he was entitled.]

I think it is very

COCKBURN, C.J.-The rule must be discharged. doubtful whether this offer was made in time, seeing that costs had been incurred which, if the case went on, and the jury found a verdict for a sum sufficient to entitle the claimant to his costs, would have been recoverable as costs. I doubt whether after the claimant has incurred such costs it is not too late to make an offer. The test which the authorities cited lay down is that of reasonableness. I doubt whether in this case it was made within a reasonable time; but it is not necessary to decide that here, for I think the offer is clearly bad, as being clogged with the condition that the offer of 1001. should include the claimant's costs as well as the compensation. The statute contemplates that, before the parties embark in active litigation, an offer should be made by the company of a reasonable compensation, so as to entail on the claimant all the consequences of having to pay his own costs if he refuses the offer. That means an offer simply of the compensation for the

matter which is the subject of inquiry before the jury. I cannot think that it should embrace anything else. I do not think that the Board were justified in putting into the offer a condition as to the costs. On that ground I think this offer was bad.

BLACKBURN, J.-I am of the same opinion. I quite agree with my Lord that an offer of compensation (at whatever time it ought to be made) should be made so that a claimant may be able to consider if it is his interest to accept it; and if the offer is made of a lump sum, not only for compensation, but also for costs, I think it might mislead the party, and not give him the means of making up his mind. A claimant has often incurred costs which, if the inquiry goes on, will be recoverable; and it would be very hard if by reason of the claimant being compelled to accept such an offer, these costs, which may be called inchoate costs, are not to be recovered. Here, where 100l. was offered he might say, "751. was offered for compensation, and 251. for expenses, which cost me 40l. 10s. I think that an offer to be valid must be plain. It is therefore unnecessary to say whether it was in time, and we do not decide that point.

LUSH, J.-I think the offer is bad, whether it was made in time or not, on the ground that it tendered a lump sum for the compensation, "such sum to include all costs, charges, and expenses of, occasioned by, or incidental to The claimant's right to costs is to be ascertained by comparing the amount of compensation awarded by the jury with the amount offered, but where a sum is offered for costs and compensation together, it is impossible to ascertain how much is for the costs and how much for the compensation. Again, I think it is very doubtful whether this offer was made in time.

Rule discharged.

[IN THE QUEEN'S BENCH.]

Feb. 10, 1866.

LUNN v. THE LONDON AND NORTH-WESTERN RAILWAY COMPANY. 35 L. J. Q.B. 105; (sub nom. Lunt) L. R. 1 Q.B. 277; 14 L. T. 225; 14 W. R. 497; 12 Jur. N.S. 409.

Distinguished, Skelton v. London & North-Western Railway [1867] E. R. A.; 36 L. J. C.P. 249; L. R. 2 C.P. 631; 16 L. T. 563; 15 W. R. 925 (C.P.). Railway Company - Negligence Level Crossing Occupation WayRailways Clauses Consolidation Act (8 & 9 Vict. c. 20.) ss. 47-68.

RAILWAY. A public way passing obliquely over a railroad, the company placed gates across the way, on either side of the line. Opposite to one of these gates, on the other side of the line, was a yard abutting on the rails. From this yard there was a private way over the rails, with but one outlet, by means of the gate opposite. The plaintiff's carter having finished his work in the yard, drove his cart, after dark, to the entrance to the railroad, and called to the company's keeper at the opposite gate to know if the road were clear. The keeper said, Yes, come on. The carter proceeded, when the cart and horses were struck by a passing train:-Held, that though section 47. of the Railways Clauses Consolidation Act, in the case of public roads crossed by a railway on a level, simply orders the company to maintain gates across the road and employ proper persons to open and shut the gates and keep the gates closed, except when horses, carriages, &c., have to cross the railway, yet that there is implied in those words a direction to the company

[1866] to keep persons from passing through such gates except when it is reasonably safe to do so, and that whatever might have been the case had the carter been using an ordinary private road over the railway, the fact that the only outlet to this road was by means of the public gate, placed him in the same position as if he had been using the public way; that the answer of the gatekeeper was equivalent to an invitation to come upon the railroad, and this was a breach of his duty in the service of the company for which they were responsible.

Declaration-that the plaintiff before and at the time of committing the grievances hereinafter mentioned was possessed of a certain cart or lorry, and, to wit, two horses, and the defendants were possessed of a certain line of railway, which said railway crosses at a level a certain public road. That the defendants, before and at the time when, &c., were in the habit of driving and running by their servants divers engines, tenders and trains along the railway and across the road, and it became and was the duty of the defendants to put and place proper and sufficient gates at the said crossing, and to keep the gates properly ordered and regulated, and to keep and maintain at the crossing proper and efficient officers and servants for the safety and protection of persons lawfully using the road. That at the time when, &c., the cart. and horses were lawfully and properly using the road, and were being lawfully and properly drawn across the railway at the crossing, yet the defendants wholly failed to put and place at the crossing proper and sufficient gates, or to keep such gates properly ordered and regulated, and wholly failed to keep and maintain at the crossing proper or effectual officers or servants, and the defendants maintained and kept the crossing so negligently and improperly unprotected by gates, and provided such improper, inefficient and incapable officers and servants at the crossing, and so negligently and improperly conducted themselves in and about the premises, and so negligently, carelessly and improperly drove a certain locomotive engine, tender and train of carriages attached thereto over and across the road at the crossing while the plaintiff's cart and horses were so lawfully and properly using the road, and were so being lawfully and properly driven across the railway at the crossing as aforesaid, that the engine, tender and train struck, knocked down and upset the plaintiff's cart and horses, whereby the cart was crushed and broken and rendered altogether useless to the plaintiff, and one of the horses was killed, and the other of the horses was so damaged, wounded and injured that it became altogether useless to the plaintiffs, and it became and was necessary to put it to death, and it was accordingly put to death.

There was also a second count in general terms, ascribing the accident to the negligence of the defendants.

Pleas-First, not guilty. Secondly, that at the time when, &c., the said cart and horses were not lawfully and properly using the road and being lawfully and properly driven across the railway at the crossing as aforesaid. Upon these pleas issue was joined.

At the second trial of the action, at the Liverpool Spring Assizes, before Shee, J., it appeared that a part of the defendants' line between Liverpool and Warrington passed obliquely over a carriageway. Across this way, on either side of the line, the company had placed gates, pursuant to the requirements of the Railways Clauses Consolidation Act, section 47. Opposite to one of these gates, on the other side of the line, was a yard belonging to one Crossfield, abutting on the rails. From this yard there was a private way over the rails, with but one outlet, by means of the gate opposite. Anybody using the private road in approaching Crossfield's yard entered at the public gate and passed through it on his return. Anybody using the public way from the north side of the railroad also entered at the public gate, but turned to the right of the private road in crossing the rails and went out at the opposite

public gate. The plan below will shew the position of the railroad and the two ways.

The plaintiff's carter, who had been working in Crossfield's yard, on the evening of the 23rd of November, 1863, drove, after dark, a lorry and two horses to the private gates, which he threw open, and called to M'Grath, the keeper placed by the company in charge of the opposite gate, to know whether the road was clear. M'Grath, according to the carter's statement, replied, "Yes, come on." The lorry and two horses were driven on to the line, when both were struck down by an express train, the lorry broken to pieces, one of the horses killed and the other seriously injured. M'Grath and other witnesses maintained that all he said was addressed to the driver of a luggage train which was just passing. It did not clearly appear that the public gate was open at the time of the accident. His Lordship left to the jury the question, was M'Grath guilty of negligence which caused the accident, or was it caused by the carter going across the rails without proper caution? The jury found in favour of the plaintiff, the damages being fixed by consent at 1001. Leave was reserved to the defendants to move to enter a verdict or a nonsuit, if the Court should be of opinion that there was no evidence of negligence to charge the defendants. The jury at the first trial had also found a verdict for the plaintiff.

A rule nisi having been obtained to enter the verdict for the defendants, or for a new trial,

Mellish and Pope now shewed cause.-From the verdict of the jury it must be assumed that M'Grath was guilty of negligence. It will be contended that for this negligence the company are not liable, as section 47. of the Railways Clauses Consolidation Act only casts upon them the duty of employing a keeper