By cognizance, may also have a writ of inquiry, to ascertain the arrears of rent, the value of the goods distrained, and so forth. By 7 Hen. 8, c. 4, s. 3, " avowants and persons making cognizance for rents, customs, and services, if their avowries or cognizances be found for them or the plaintiff be otherwise barred, are to recover damages and costs as the plaintiff would have done if he had recovered. The 21 Hen. 8, c. 19, s. 8, extends this to avowries and cognizances, to distress damage feasant or other rent or rents upon any distress taken in the lands or tenements. 17 Car. 2, c. 7, s. 2, "whensoever any plaintiff in replevin shall be nonsuit before issue joined, in any suit of replevin by plaint or writ lawfully returned, removed, or depending in any of the king's Courts at Westminster, that the defendant making a suggestion in nature of an avowry or cognizance for such rent, to ascertain the Court of the cause of distress, the Court upon his prayer shall award a writ to the Sheriff of the county where the distress was taken, to inquire by the oaths of twelve good and lawful men of his bailiwick, touching the sum in arrear at the time of such distress taken and the value of the goods or cattle distrained: and thereupon notice of fifteen days shall be given to the plaintiff or In replevin. his attorney in Court, of the sitting of such inquiry; and thereupon the Sheriff shall inquire of the truth of the matters contained in such writ, by the oaths of twelve good and lawful men of his county and upon the return of such inquisition, the defendant shall have judgment to recover against the plaintiff the arrearages of such rent, in case the goods or cattle distrained shall amount unto that value: and in case they shall not amount to that value, then so much as the value of the said goods and cattle so distrained shall amount unto, together with his full costs of suit and shall have execution thereupon by fieri facias or elegit, or otherwise as the law shall require. And in case such plaintiff shall be nonsuit after cognizance or avowry made, and issue joined, or if the verdict shall be given against such plaintiff; then the jurors that are impanelled or returned to inquire of such issue, shall at the prayer of the defendant inquire concerning the sum of the arrears, and the value of the goods or cattle distrained; and thereupon the avowant, or he that makes cognizance, shall have judgment for such arrearages, or so much thereof as the goods or cattle distrained amount unto, together with his full costs, and shall have execution for the same by fieri facias or elegit, or otherwise, as the law shall require." By s. 3, "if judgment in any of the Courts aforesaid be given upon demurrer for the avowant, or him that maketh cognizance for any rent, the Court shall at the prayer of the defendant award a writ to inquire of the value of such distress; and upon the return thereof judgment shall be given for the avowant, or him that makes cognizance as aforesaid, for the arrears alleged to be behind in such avowry or cognizance, if the goods or cattle so distrained shall amount to that value; and in a See Gammon v. Jones, 4 T. R. 509. case they shall not amount to that value, then for so much as the said goods or cattle so distrained amount unto, together with his full costs of suit, and shall have like execution as aforesaid." Where there was a nonsuit, and a retorno habendo awarded, it was held that the avowant might execute a writ of inquiry after a writ of second deliverance. The Common Law Procedure Act, 1853, Ejectments. s. 208, provides (in ejectment) that if a judgment be affirmed in error, or the proceeding in error be discontinued, the claimant may, on application, have this writ to inquire as well of the mesne profits as of the damage by any waste committed after the first judgment in ejectment. Whether a writ of inquiry can issue, after an imperfect verdict, seems very doubtful. In Dewell v. Marshall the writ was granted, after a defective verdict, in replevin of a distress for a poor's rate." In Sharpe v. Culpepper the jury, not having ascertained the value of the arrears of rent, it was held that the omission could not be supplied by a writ of inquiry. Return. The execution of this writ appears in the inquisition hereunto annexed. on e Sheriff of W า An inquisition indented taken at "g a Cooper v. Sherbrooke, 2 Wils. 116. b 2 W. Bl. 921. c 1 Lev. 255; see also Freeman v. Archer, 2 Wm. Bl. 763; Phillips v. Jones, 15 Q. B. 868. SECTION VII. COMPENSATION COURT. A COMPENSATION Court is a court wherein the Sheriff, personally, Nature of or by deputy, presides, to assess compensation to a person whose court. d All returns ought to be made in the name of the High Sheriff; Plowd. 63; Stroud v. Watts, 3 D. & L. 802. e Ibid. High Sheriff.d f The plaintiff or avowant may recover damages and costs. 8 Ante, p. 80, in detinue the value of the goods; Pawley v. Holly, 2 Wm. Bl. 853; Cheyney's Ca. 10 Rep. 119; Sandford v. Alcock, 10 M. & W. 690; Phillips v. Jones, 15 Q. B. 868; Wil liams v. Archer, 5 C. B. 318. G property is to be taken from him, or to be injuriously affected, by some public company, under the powers of some act of Parliament. This Court and its machinery are unknown to the common law. To the language of the legislature, therefore, we must always look for instruction, whether the question be one of form, or substance, the rights of the parties, the nature of the compulsory power, or the jurisdiction and duties of the Sheriff. In the year 1845, it was found expedient to comprise, in General Acts, sundry provisions relating to the construction, constitution, and management, of the acquisition of lands, required for undertakings or works of a public nature, and the compensation to be made for the same; as well for the purpose of avoiding the necessity of repeating such provisions in each of the several acts relating to such undertakings, as for ensuring greater uniformity in the provisions themselves. The general acts are "The Companies Clauses Consolidation Act, 1845," (8 & 9 Vict. c. 16), "The Lands Clauses Consolidation Act, 1845," (8 & 9 Vict. c. 18), and "The Railways Clauses Consolidation Act, 1845," ( 8 & 9 Vict. c. 20), each of which (save so far as it may be expressly varied or excepted by any particular act), is to be incorporated with such particular act, form part of such particular act, and be construed together therewith, as forming one act. summon jury. In a question of disputed compensation, the promoters of the undertaking must, first of all, give a ten days' notice to the other party of their intention to cause a jury to be summoned for settling the amount.a That done, they are then to issue their warrant to the Sheriff, requiring him to summon a jury for that Company's purpose; or, "if the Sheriff be interested in the matter in dispute, warrant to application is to be made to some coroner of the county, in Sheriff to which the lands in question, or some part thereof, shall be situate; and, if all the coroners of such county be so interested, 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 excoroner, shall have power, if he think fit, to appoint a deputy or assessor." But as this direction, in respect of the interest of the Sheriff, is introduced for the protection of the party against whom the interest might operate, such person may waive it. General Jury. Upon the receipt of the warrant, the Sheriff summons a jury of 24 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 14, nor more than 21 days, after the receipt of such warrant; and such place not being more than 8 miles a 8 & 9 Vict. c. 18, 38. b Ibid., s. 39. c Ex parte Baddeley, 5 D. & L. 577. b C 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. Out of the jurors appearing upon such summons, a jury of 12 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. The Sheriff shall preside on How inthe said inquiry; and the party claiming compensation shall be quiry condeemed the plaintiff, and shall have all such rights and privileges ducted. as the plaintiff 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 View. as views may be had in his trial of actions in the superior courts.d If the Sheriff make default in any of the matters to be done by Sheriff or him, in relation to any such trial or inquiry, he shall forfeit fifty juryman pounds for every such offence, and such penalty shall be recover- making deable 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, unless he show reasonable excuse to the satisfaction of the Sheriff, forfeit a sum not exceeding ten pounds; and every such penalty payable by a Sheriff or juryman shall be applied in satisfaction of the costs of the inquiry, so far as the same will extend; and, in addition to the penalty hereby imposed, every such juryman shall be subject to the same regulations, pains, and penalties, as if such jury had been returned for the trial of an issue joined in any of the superior courts. "If the party Claimant claiming compensation shall not appear at the time appointed for not appearthe inquiry, such inquiry shall not be further proceeded in, but ing. the compensation to be paid shall be such as shall be ascertained by a surveyor appointed by two justices. Before the jury pro- Juror's ceed to inquire of and assess the compensation or damage in oath. respect of which their verdict is to be given, they shall make oath that they will truly and faithfully inquire of and assess such compensation or damage, and the Sheriff shall administer fault. such oath as well as the oaths of all persons called upon to give evidence.a "Where such inquiry shall relate to the value of lands to be purchased, and also to compensation claimed for injury done or to be done to the lands held therewith, the jury shall deliver their verdict separately for the sum of money to be paid for the purchase of the lands required for the works, or of any interest therein belonging to the party with whom the question of disputed compensation shall have arisen, or which, under the provisions herein contained, he is enabled to sell or convey, and for the sum of money to be paid by way of compensation for the damage, if any, to be sustained by the owner of the lands, by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such lands by the exercise of the powers of this or the special The Sheriff act, or any act incorporated therewith." b And "The Sheriff, to give before whom such inquiry shall be held, shall give judgment for judgment. the purchase money, or compensation assessed by such jury; and the verdict and judgment shall be signed by the Sheriff; and, being so signed, shall be kept by the clerk of the peace among the records of the general or Quarter Sessions of the county, in which the lands or any part thereof shall be situate, in respect of which such purchase money or compensation shall have been awarded; and such verdicts and judgments shall be deemed records. "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 shail be taken, shall be defrayed by the owners 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 Special such inquiry." If either party desire any such question of disjury. puted compensation as aforesaid to be tried before a special jury, such question shall be so tried, provided that notice of such desire, if coming from the other party, be given to the promoters of the undertaking before they have issued their warrant to the Sheriff; and for that purpose the promoters of the undertaking shall by their warrant to the Sheriff require him to nominate a special jury for such trial; and thereupon the Sheriff shall, as soon as conveniently may be after the receipt by him of such Damages how assessed. Costs. a Sect. 48. b Sect. 49. C Sect. 50. d Sect. 51, see Richardson v. The South Eastern Railway Company; 11 |
