The
King against The Company of Proprietors of the Nottingham Old Water Works.
IN
THE COURT OF KING'S BENCH
Original Printed Version (PDF)
Original
Citation: (1837) 6 Ad & E 355
English
Reports Citation: 112 E.R. 135
Saturday,
January 28th, 1837.
S. C. 1
N. & P. 480; W. W. & D. 166; 6 L. J. K. B. 89.
[355] The King against the Company of Proprietors
of the Nottingham Old Water Works.
Saturday,
January 28th, 1837.
By an Act, incorÁporating a company for supplying the town
of N. with water, the company were empowered to continue, make, &c.,
water-works, weirs, and other like works in the parish of L., subject to the
restriction after contained, and to enter upon all rivers, lands, &c.,
specified in the plans and books after mentioned, and to do all other things
necessary for making, completing, &c., the water-works. A plan, describing
the line of intended works, and the lands through which they were to be
carried, and books specifying the owners of the lands, were to remain with the
clerk of the peace; and the company were not to deviate from the line
described. They were empowered to agree for the purchase of lands, &c. ;
and. tenants for life, &c., and owners and occupiers of lands through which
the works were to pass, were to receive satisfaction for the value of the lands
and the damages sustained in making the works; the amount to be settled, if
necessary, by a compensation jury at Quarter Sessions, to be summoned by the
company's warrant to the sheriff on certain notice to the company, and not
without; and the jury were to assess purchase-money or compensation, and to
settle what share should be allowed to any tenant or person having a particular
interest. The sessions were to give judgment for the sum awarded ; and the
verdict and judgment were to be registered among the records of the Quarter
Sessions, and to be deemed records to all intents and purposes. If the verdict
should exceed the amount
(6)1 3 Bulst. 190, S. C. 1 Rol. R. 409. See Rex v. The
Mayor, de. of Abingdon, 2 Salk. 699.
(c) Lord Denman C.J. and Littledale J. were absent.
(&)2 See the observations of Lord Mansfield, in Bex v.
Bankes, 3 Bur. 1454: also Rex v. The Mayor, Bailiffs; and Burgesses of
Cambridge, 4 Bur. 2008.
136 THE KING V. NOTTINGHAM OLD WATER
WORKS CO. 6 JU .
& E. 386.
of the
company's offer, they were to pay coats, which, if not paid, might be levied on
their goods under a justice's warrant; the amount to be ascertained by a
justice. A subsequent section directed the assessment of compensation for any
damages not before provided for, accruing by reason of the execution of any of
the powers in the Act; the sums assessed to be levied as directed with respect
to damages before provided for. The company, on payment, tender, &c., of the
sums agreed upon or assessed, might enter on the lands, &e., but not
before. Certain restrictions were provided, in the case of actions brought for
any thing done in pursuance of the statute. The company, by alterations in a
weir in L., across a river, raised the water so as to damage a mill in L., of
which T. was tenant for life: neither the mill, nor the weir or its site, nor
T.'s name, was specified in the books or plan, nor was the weir in the line of
works there described ; but that part of the river in which the mill and weir
respectively lay was in the plan. 1. Held that a mandamus lay to the company,
commanding them to issue their warrant for a jury to assess the damages
sustained by T. 2. The jury, summoned in obedience to the mandamus, having assessed
a comÁpensation, and the company refusing to pay the same, or the costs, Held,
that a mandamus lay to enforce payment of the compensation, though the statute
made the verdict and judgment records of the Quarter Sessions. 3. Held, also,
that the company, in shewing cause against the rule for a second mandamus, were
precluded from contending that the injury sustained by T. was not within the
Act, or that all preliminaries necessary to support the first mandamus were not
fulfilled. 4. That all formal preliminaries, essential to the verdict, must be
presumed to have been fulfilled, in default of affidavit to the contrary. 5.
That the jury, having assessed a compensation to T. without noticing the
interest of any other person, it was not to be presumed, in the absence of any
affidavit, that they had given such compensation for a larger interest than T.
really had, or had overlooked any other person's interest. 6. That, if costs
were recoverable at all, for the inquisition, &c., they must be levied as
prescribed by the Act; and that no mandamus would lie for the payment, though
application had been made to a justice for a distress warrant, which he had
refused. 7. That a mandamus would not lie for the costs of the former mandamus.
[S. C. 1 N. & P. 480 ˜ W. W.
& D. 166; 6 L. J. K. B. 89.]
Sir W. W. Follett, in Easter term, 1835, obtained a rule
nisi for a mandamus to the Company of Proprietors of the Nottingham Old Water
Works to issue [356] a warrant under their common seal to the sheriff of the
county of Nottingham, commanding him to summon and return a jury of
twenty-four, &c., to appear before the justices of the peace at the next
General Quarter Sessions for the said county, in order that a jury might be
then and there empannelled, according to stat. 7 & 8 G. 4, c. Ixxxii. (a),
to assess the damages sustained by Sarah [357] Turner in her lands,
(a) Stat. 7 & 8 G. 4, c. Ixxxii. (local and personal,
public), entitled " An Act for More Effectually Supplying with Water the
Inhabitants of the Town and County of the Town of Nottingham, and the
Neighbourhood thereof."
Sect. 1 recites that the inhabitants of Nottingham, for many
years have been supplied with water from the river Len, by means of works
constructed at the expense of the proprietors of such works, on ground demised
to them for a long term; and it incorporates the proprietors by the name of
"The Company of Proprietors of the Nottingham Old Water Works."
Sect. 2 empowers the company " to continue, make,
complete," &c., " water-works, houses,"
"reservoirs," "weirs," "pipes," &c., "in
and near" "the several parishes or townships of Basford,
Lenton," &c., "and from time to time to regulate, conduct,
continue," &c., the same, and to discontinue the same, subject to the
restriction after contained; and "to go enter and pass in, upon, over,
under and through all or any of the rivers, brooks, streams, waters, high
ways," &c., "and all other lands and places of or belonging to
any person or persons," &c., "mentioned and specified in the
plans and booka of reference hereinafter mentioned," (with exceptions not
material here,) " and to aet out and ascertain such part or parts thereof
aa they the said company shall think necessary and proper for continuing,
making," &c. " the said water-works,"
6 AD. tc E. 3J7. THE KING V.
NOTTINGHAM OLD WATER WORKS CO. 137
tenements,
hereditaments, and premises, by reason and in consequence of certain works done
and erected by the said company, in the execution of certain of the powers of
the said statute.
&c,, "and all such other works" "as they
shall think necessary for effecting the purposes aforesaid ;" doing as
little damage as may be, &c., " and making full satisfacÁtion in
manner hereinafter mentioned to the owners or proprietors of, and all persons
interested in any lauds tenements or other hereditaments which shall be taken,
used," &c., " or injured, for all damages to be by them sustained
in or by bhe execution of all or any of the powers hereby granted; and this Act
shall be sufficient to indemnify the said company, and their deputies,
servants," &c., " for what they or any of them shall do by virtue
of the powers hereby granted, subject nevertheless to such provisoes and
restrictions " as are after mentioned.
Sect. 3 recites that a map or plan, describing the intended
reservoirs and line of pipes and other works, and the lands, &c. upon or
through which they are made or intended to be carried, together with a book of
reference containing a list of the owners thereof, have been deposited at the
offices of the clerks of the peace in Nottingham and Nottinghamshire; and also
another plan, describing a certain variaÁtion, &c.; and enacts that the
maps or plans, and books shall remain in the custody of the clerka of the
peace; "and the said company in making such reservoirs," &c.,
" and other works, and laying such pipes as aforesaid, shall not deviate
from the line described in the said first mentioned maps or plans, save as the
same is varied or altered by the said second mentioned plans ; and that the
said company in laying the said pipes through the parishes of Raclford and
Lenton, aforesaid, shall not deviate from the line described in the said second
mentioned plans."
Sect. 8 gives powers for the purchase and sale of lands,
&c.
Sect 11 enacts that the tenants for life or in tail,
&c., owners, occupiers, &c., of any lands, tenements, or hereditaments
through, in or upon, over or under which the works authorized by this Act are
or are intended to be made, may accept and receive satisfaction for the value
of such lands, &c., "and for the damages to be sustained in making and
completing the said works, in such gross suras as shall be agreed upon "
between them and the company of proprietors; and in case the company and the
parties interested in such lands, &c. cannot or do not agree, the amount of
such satisfaction or compensation shall be ascertained by the verdict of a
jury, as after directed.
Sect. 12. " And for settling all differences which may
arise between the said company of proprietors and the several owners of or
persons interested in any lands," &c., which the company are by this
Act enabled to take and make use of for the purposes thereof; be it further
enacted, that if any " person or persons so interested, entitled or
empowered or capacitated to sell as aforesaid, for and on behalf of
himself," &c., " or of the person or persons entitled in
remainder or reversion after them," &c., shall refuse to accept the
" purchase-money recompence or other compensation " offered by the
company, and give written notice thereof to the company within twenty-one clays
of the offer, with a request that the matter may be submitted to a jury, the
company shall, and they are hereby empowered and required, from time to time,
to issue a warrant under their common seal to the sheriff of the county, &c.,
commanding him, and the sheriff is authorized and required, to empannel a jury
of twenty-four, who are required to appear at aome Court of General or Quarter
Sessions, or adjournÁment thereof, for the town or county of Nottingham; out of
whom a jury of twelve shall be drawn, who shall " inquire of, assess and
ascertain, and give a verdict for the sum or sums of money to be paid for the
purchase of such lands," &c., tenements, or hereditaments, " and
also the separate and distinct sum or sums of money to be paid by way of
recompence or compensation either for the damages which shall or may before
that time have been occasioned and sustained as aforesaid, or for the future
temporary or perpetual continuance of any recurring damages," &c.;
" and the said justices shall accordingly give judgment for such
purchase-money, recompence or compensation as shall be assessed by such jury,
which said verdict, and the judgment thereupon to be pronounced as aforesaid,
shall be binding and conclusive to all intents and purposes, upon all bodies
politic," &c., and all other persons whatsoever.
Sect. 14 empowers the said juries to "settle what
shares and proportions of the purchase-money or compensation for damages,"
to be assessed, " shall be allowed to
K. B. xli.-5*
138 THE KING V. NOTTINGHAM OLD WATER
WORKS CO.
8 AD.& E. 358.
[358] By
the affidavits in support of the rule, it appeared that Sarah Turner was owner,
as tenant for life, of a water-mill, in Lenton, in Nottinghamshire, on the
river [359] Leen. In 1826 (after the commencement of her ownership) the company
were in possession of works for raising water from the Leen. The local Act
passed on 14th June 1827. About the end of 1830 the company removed a weir,
which had been placed across the river, to a part of the river higher up, and
at the same time heightened the weir ; in consequence of which the working of
the mill was obstructed, and the value of the property lessened. The company
were applied to for [360] comÁpensation, and, in November 1834, were formally
required to issue a warrant to summon a jury for assessing the damage ; but
they did not grant either.
Affidavit was made in answer, to the effect that neither the
new weir, nor the site thereof, was specified or referred to in the plans or
books of reference mentioned in the Act (sect. 3); that none of the plans or
books shewed that the company sought, by virtue of the Act, to obtain the power
of changing the site of the weir, or raising it, or in any way altering the
height of the water in the Leen, or diminishing the
any tenant or other person or persons having a particular
estate term or interest in the premises, for such his her or their interest or
respective interests therein."
Sect. 15 enacts, "That all the said verdicts and
judgments, being first signed by the clerk of the peace," shall by him be
"registered among the records of the Quarter Sessions for such town or
county, and shall be deemed records to all intents and purposes: and the same,
or true copies thereof, shall be allowed to be good evidence in all Courts
whatsoever."
Sect. 18 enacts, that where a verdict shall be given for
more money than the company shall have offered as a recompenee or satisfaction
for any such lands, &c., or for any such estate, &c., "or for any
damages that may have been sustained by any person or persons aforesaid,"
the costs of summoning, &c., the jury, taking the inquisition, witnesses,
and recording the verdict or judgment, shall be borne by the company, and
shall, in default of payment by them or their treasurers, be levied by distress
and sale under the warrant of a justice of the town or county, which warrant
the justice is authorized and required to issue; and where differences shall
arise respecting the amount of the costs, the same shall be ascertained by a,
justice of, &c., who is authorized and required to do so.
Sect. 20 enacts, that if " any person or persons
sustain any damage in his her or their lands, tenements, hereditaments or
property, by reason of the execution of any of the powers given by this Act,
and for which a compensation is not hereinbefore provided," such damages
shall from time to time be assessed by a jury, "and the sum or sums of
money to be paid for the same shall be recovered levied and applied " in
the same manner as is directed with respect to such damages as are in the Act
before provided for.
Sect. 21 enacts, that the company shall not be obliged, nor
any jury under this Act be allowed to receive and take notice of any complaint
of injury or damage sustained by virtue or in consequence of the execution of
this Act, unless notice in writing, stating the particulars of such injury or
damage, and the amount of comÁpensation claimed, shall have been given to the
company within three calendar months after the injury shall have been
sustained, or the doing thereof shall have ceased.
Sect. 22 enacts, that on payment or tender of sums agreed
upon, or assessed by a jury, within one calendar month after the same shall be
agreed for or assessed, (with a provision in case the persons entitled cannot
be found, &c.,) the company may enter into such lands, and the same shall
vest in them; but before such payment, &c., the company shall not dig or
cut into such lands, &c., without leave in writing.
Sect. 108 enacts that no plaintiff shall recover in any action
for any thing done in pursuance of this Act, unless he shall have given
twenty-eight days' notice of action, nor if sufficient amends be tendered,
&c.
Sect. 109 enacts, "That no action suit or information
shall be brought commenced or prosecuted against any person " for any
thing done in pursuance of this Act, or in execution of the powers, &c.,
made given, &o. in by or under the same, unless certain notices be given,
nor after certain times specified ; and other enactments as to the proceedings,
&c., in such actions, are added. In case of the plaintiff's not
succeeding,, the defendants to have double coats.
6 AD. &E. ML THE KING V.
NOTTINGHAM OLD WATER WORKS CO. 139
power or
value of the mill ; that the weir was not in the line of works marked on either
of the maps or plans; and that no part of the estate through which that part of
the river passed wherein the new weir stood, was specified or referred to in
either of the books or plans. It was not, however, denied (and was assumed in
argument) that the parts of the river Leen on which the mill and the new weir
respectively stood were comprehended in the plans. It was also assumed that the
new weir, as well as the mill, was in Lenton.
Hill and Humfrey shewed cause in Michaelmas term 1835
(November 7th), and contended that the remedy sought for was not the proper
one, for that the injury complained of was not occasioned by any act done under
the compulsory powers of the statute, and, that being so, the process given by
the statute was not applicable; Rex, v. The Hungerfmd Market Company (Ex parte
Yeates) (1 A. & E. 668), Rex v. The Hung&rford Market Company (Ex
parte. Eyre) (1 A. & E. 676); but the complainant ought to [361] proceed by
action, as in the case of an ordinary wrong. And they endeavoured to shew that,
the weir in question not being comprehended in the plaus or books of reference
mentioned in sect. 3, the work done upon it was not an execuÁtion of any power
given by the Act. They urged that sect. 20 did not apply to any damages but
such as arose from the execution of the powers given by the Act; and they cited
Scales v. Pickering (4 Bing. 448), as shewing that such powers must be
construed strictly. If this were a proper subject for compensation, the company
would be entitled to retain the weir, and be liable to no further complaint for
the consequences.
Sir W. W. Follett, contri, referred to sects. 2, 11, and 20,
and argued that the last applied to the damage here complained of, inasmuch as
sect. 2 enabled the company to lay down weirs; and he observed that, although
the weir was not in the plan, it was newly erected, under the powers of the
Act, on a part of the river Leen which was in the plan ; and that a particular
specification of that or of the mill was not necessary for the purpose of enabling
the company to erect works in that part of the river which was in the plan.
Lord Denman C.J. The erection of this weir seems directly
within the powers given by the Act; and the Act might be pleaded by the company
in justification. This appears to be the very case contemplated by sect. 20.
Patteaon J. The second section gives the power expressly.
[362] Williams J. The only doubt I felt was whether the
clause as to the plans and books restricted the company. But, as the part of
the river in question is within the plan, I think it does not. It was not a
matter of course, when the plans were made, that the weir should be erected.
Coleridge J. The argument as to the plans and names of the
owners falls to the ground as soon as we refer to sect. 20. As to the future
consequential damages we need not decide now.
Rule absolute.
A mandamus issued accordingly, tested 7th November 1835, in
the terms of the rule. The jury were summoned; and, at the Nottinghamshire
Quarter Sessions in April 1836 (the time having been enlarged by consent),
assessed the damages of Sarah Turner at 5001. This sum, and the costs incurred
in obtaining the mandamus and verdict, were demanded of the company, but not
paid. Sarah Turner then applied for a warrant of distress at the June Quarter
Sessions, 1836 : the sessions adjourned the consideration till the October
Sessions, and then refused the warrant. A similar application was afterwards
made to a single magistrate of the county, who refused to issue the warrant.
The costs previous to the inquiry were sworn by the attorney for Sarah Turner
to be 1671. 13s. lid.; and those incurred since, to be 731. 13s. 4d. An offer
was made on the part of Sarah Turner to refer the taxation to the clerk of the
peace for Nottinghamshire, or the proper officer of this Court, or any
indifferent professional man. The attorney also stated that the costs incurred
since those already men-[363]-tioned would amount to a considerable sum. Upon
affidavit of the above facts, Sir W. W. Follett obtained a rule in Michaelmas
term, 1836, calling upon the company to shew cause why a mandamus should not
issue, commanding them forthwith to pay Sarah Turner 5001., being the damages
assessed by the jury ; and also 2411. 7s. 3d., her costs of the inquiry.
Hill, N. R. Clarke, and Whitehurst now shewed cause. The
money here has been awarded under sect. 20. If that stood alone, it would be
nugatory; for no directions
140 THE KING V. NOTTINGHAM OLD WATER
WORKS CO. 1/2
AD. ft E. 384.
are
there given as to the method of summoning the jury, of holding the inquiry, or
of recording or enforcing the verdict. But the claimant insists that this
section is connected by reference with the preceding sections, and that
therefore the remedy is on tbe same footing with those before provided. Now,
assuming for the present that this view is correct, and that all the
proceedings up to the time of making this last application have been regular,
the remedy is misconceived. If the twentieth section is to be connected with
the preceding, it must be so for all purposes; and then no remedy will be found
but that which the Act, like other Acts of the same kind, gives, by
restraining, in sect. 22, the company from using their statutory powers till
the money is paid. But, further, supposing the intention of the Legislature to
be that, after the verdict, the money must be paid at all events, then an
action of debt lies. In 3 Blackstone's Commentaries, 159, 160, the author,
describing the cases in which a right of action accrues on an implied contract,
points out contracts implied by the fundamental constitution of government, and
lays it down, " That every person is bound and hath virtually [364] agreed
to pay such particular sums of money, as are charged on him by the sentence, or
assessed by the interpretation, of the law;" and be adds, " Whatever,
therefore, the laws order any one to pay, that becomes instantly a debt, which
he hath before hand contracted to discharge. And this implied agreement it is,
that gives the plaintiff a right to institute a second action, founded merely
on the general contract, in order to recover such damages or sum of money, as
are assessed by the jury and adjudged by the Court to be due from the defendant
to the plaintiff in any former action." This is at least as strong a case
as that of an amerciament by a court leet, or a penalty imposed by a statute
prescribing no specific remedy (a). By stat. 29 Eliz. c. 4, s. 1, the sheriff
is not to take more than the fees thereby appointed, which shall be lawful to
be had, &c.: on this Act it has been held that debt lies by the sheriff for
the amount allowed (b). In Rex v. The Bank of England (2 Doug. 524), this Court
refused to grant a mandamus commanding the bank to permit the transfer of
stock, partly on the ground that there was a sufficient remedy by action on the
case, although that is not, strictly speaking, a direct remedy, as the action
of debt here would be. And here the fifteenth section makes the verdict and
judgment a record to all intents and purposes; so that the case falls within
the common one of ˜debt on a judgment of record. Debt lies also on a judgment
of a Court by custom of London, and on a foreign judgment. Again, this is a
mandamus to pay money, which the Court does not grant. It is true that, in Sex
v. The St. Katharine Dock [365] Company (4 B. & Ad. 360), a mandamus went
to enforce payment by the company of money which an arbitrator had awarded to
be paid by its treasurer; but that was expressly on the ground that the action
on the award could only be against the treasurer, and that his body and goods
were exempted from execution by the statute incorporating the company. Again,
if the act done be not a matter within the compulsory powers of the Act, the
jurisdiction fails. [The Court here intimated that, after the previous argument
and decision, it was too late to raise objections which impugned the propriety
of originally issuing the mandamus.] On the argument of the return to the
mandamus in Rex v. The St. Katharine Dock Company (4 B. & Ad. 363), Parke
J. said, "The first question in this case is, whether a mandamus should
issue. The objection, that it ought not to have issued at all, though it might
more properly have been made at the time when cause was shewn against the rule
for issuing it, may be made in this stage of the proceeding." At all
events it ought to appear that every thing done since the granting of the rule
is regular. Now the claimant has only a life estate; the jury ought therefore
to have apportioned the compensation under sect. 14 : but here it appears that
the whole is given to the tenant for life; and the mandamus itself is
erroneously drawn, for it is merely to assess the damages sustained by the
applicant. It is contrary to both the spirit and letter of the Act, that there
should be separate enquiries in the case of each party interested : the jury
must therefore be understood to have assessed all the damage done by the Act
complained of; but the present applicant can claim only a part, and it does not
ap-[366]-pear how much. Further, it is not shewn that the claimant haa entered
up the verdict and judgment of record, as directed by sect. 15; or that notice
was given
(a) See Com. Dig. Debt (A, 1), (A, 2), (A, 9). Holt C.J. in the Anonymous
case,
6 Mod. 26.
(b) Probey v. Mitchell, Moore, 853.
6 AD. a 867.
THE KING V. NOTTINGHAM OLD WATER WORKS CO. 141
to the
company before summoning the jury, and within three months of the injury
sustained, under sect. 21. The injury took place in 1830; and no application to
the company was made till 1834. It will be said, that this was a continuing
injury; but, if so, the complaint should have been made within three months of
the act being done by which the injury is occasioned. [Per Curiam. That
objection should have been urged against granting the first mandamus.]
Admitting that this cannot be urged as an objection to the jurisdiction, still
the jury, when assembled under the precept, could give no compensation for any
injury of which there had not been proper notice; they were bound, under the
mandamus, to enquire whether the preliminaries, which the Act makes essential
to the assessment of damages for the particular injury proved, had been
performed. Perhaps the fact of the notice ought to have been averred in the
mandamus, to give the company an opportunity of traversing it. Then as to the
costs. Sect 18 gives costs only where the proceeding is by "any person or
persons aforesaid." The claimant is one of a new class of persons, who are
the ohjeet of sect. 20. But, even admitting that the parties protected by sect.
20 are entitled to costs under sect. 18, there is a specific remedy provided in
sect. 18 for the costs. As for the costs of the last mandamus, if they can be
given at all, now that the rule has been made absolute without costs, the
proper method is to apply for them under stat. 1 W. 4, c. 21, s. 6 ; and, if
the Court order payment, such order may [367] be enforced by attachment.
Besides, the amount of costs appears only by the affidavit of the claimant's
solicitor: no particulars are given, and there has been no taxation. This Court
will not issue a mandamus for the payment of a sum not ascertained.
Sir W. W. Folletb and Bourne, contra. On the former argument
it was decided that this case fell within sect. 20; then, the damages having
been assessed in pursuÁance of the mandamus, and the company refusing to pay,
there must be some remedy. It is said that an action lies, because this is a
judgment of the Court of Quarter Sessions: but that would support only an
indictment, as in Rex v. Kingston (8 East, 41). There is no debt: the judgment
is rather in the nature of a judgment for damages for an injury. Hex v. The St.
Katharine Dock Company (4 B. & Ad. 360), was not so strong a case ag this.
That was the case of an action which was referred, and an award made. It is
said that here debt lies, because the verdict and judgment are made records:
but they are records only of the Court of Quarter Sessions, upon which no
action lies. It is not probable that the Legislature intended to prescribe so
circuitous a course as first to obtain a judgment of the Quarter Sessions, upon
a verdict for damages, and then to bring an action on the judgment. But the
remedy by indictment is not sufficient to prevent a mandamus from issuing ; Bex
v. The Severn and Wye Railway Company (2 B. & Aid. 646). An indictment
would also have lain in Rex v. The Commissioners of the Navigation of the
Rivers Thames and Isis (5 A. & E. 804); yet [368] the Court granted a
mandamus to pay the money ; which also is an answer to the argument that a
mandamus is not to be granted to enforce payment of money. And, in that case,
the Court would not allow the propriety of the remedy by mandamus to be
questioned on the argument upon the return, that point having been decided on
granting the rule for a mandamus. It is said that the jury ought to have
apportioned the damages: but it does not appear that they gave more than the
damages suffered by the particular party, nor would sect. 20 have warranted
them in doing so ; nor does the form of the mandamus require it. And, nothing
to the contrary appearing, the Court will presume that the jury have done
rightly. So, as to the absence of proof of three months' notice : it must be
presumed, from the previous decision of this Court, that every thing necessary
to justify the mandamus was done : and, as to any subÁsequent steps which may
have been necessary to make the verdict regular, these too will be presumed,
after the verdict, in default of affidavit to the contrary. As to the refusal
of the magistrates to enforce payment of costs under sect. 18, no mode of taxing
is provided : and the company do not deny the amount. It is clear that parties
obtaining damages under sect. 20 are to be placed, in all respects, in the same
situation as parties recovering damages or compensation under the previous
clauses. It would be very hard if a party entitled to the remedy were required
to pay the expense of obtaining it: the company are protected by double costs
being given, in sect. 109, wherever a party fails in an action against them for
any thing done in pursuance of the Act. If the remedy for costs, in every other
shape, be doubtful, the Court will grant the mandamus.
142 THE KING V. NOTTINGHAM OLD WATER
WORKS CO.
6 AD. ft E. 369.
[369] Patteson J.(a). This is an application to compel
payment of 5001,, comÁpensation assessed by a jury, and of another sum for
costs. It is clear that we are not bound to refuse the mandamus altogether, if
we shall be of opinion that a part of the application may be granted. With
respect to the costs, sect. 20 gives no directions, unless costs can be
included under the words " sum or suras of money to be paid " for the
damage done: such suras are to be levied in the same manner as is directed with
respect to the damages before provided for; and in sect. 18 there is a course
prescribed for recovering the costs, in the case of a verdict being given for a
higher compensation than the company shall have offered. If, therefore, costs
are here recoverable at all, they are recoverable by that method. There must,
consequently, be no rule as to costs.
As to the 5001. I have some difficulty. If there be a
specific remedy for this sum, we cannot grant the mandamus. Now, by sect. 12,
the Court of Quarter Sessions is to give judgment for the sum assessed by the
jury, which judgment is to be conÁclusive : and, by sect. 15, the clerk of the
peace is to sign the verdicts and judgments, which are to be registered and to
become records. It seemed to me at first that, if these were judgments of
record, they might be enforced like judgments of other Courts, by the process
of the Court itself, if it had any process proper for the purpose, and, if not,
by action of debt. But, on looking to the Act, I doubt whether such a conÁsequence
can be admitted. These are not the ordinary records of the Quarter Sessions ;
and I never heard of an action on a record of this [370] sort. The Quarter
Sessions are a Court for this particular purpose; no form of the record is
prescribed, and I cannot tell what the form is to be. It is difficult to say in
what form an action can be maintained upon it. Sections 12 and 15 contain no
directions how the money is to be levied : only the 22d section enacts that the
company, on payment as there prescribed, may take possession, and cannot act
before. It seems that was thought sufficient security for the compensation and
damages provided for by sect. 12. By sect. 20 damages, for which compensation
is not provided in the preceding part of the Act, are to be assessed by a jury.
Nothing is there said of making a demand, or of offer to pay the damages. And
then it is said, that such damages are to be levied as is directed with respect
to the damages before provided for. I suppose it was taken for granted that
there had been some previous provision for levying the damages mentioned in the
earlier part of the Act. But there are no means of levying them; there can be
no fieri facias or levari facias; neither can we remove the record by
certiorari and enforce the judgment here. But the main argument in opposition to
the rule was, that an action of debt would lie. I am not prepared to say
whether that be so or not. But, as it is not clear that such an action does
lie, we are bound to grant a mandamus in the absence of any other clear remedy.
Objections have been made to the regularity of the
proceedings. I do not underÁstand that the affidavits shew irregularity, but
only that there is no affidavit shewing the regularity. This, however, we are
not bound to require. We shall presume omnia ritfe acta, in pursuance of the
mandamus which we granted.
[371] Then it is said, that the applicant is only a tenant
for life, and that the jury ought to have assessed and apportioned the damages
for all parties interested. Howaver that may be in the case of the purchase of
lands by the company, where all tenants having partial interests are entitled
to compensation, it is not clear here that any one but the tenant for life had
a right to complain : the injury might be merely temporary. Besides, the
expression in sect. 20 is "any person or persons," not "all
persons." Here the party has sustained a damage in respect of her land ;
and if, in fact, it were one in respect of which the jury ought to have limited
her compensation, that ahould have been pointed out to them at the time of the
inquiry : and no comÁplaint ia made of the chairman's summing up. Under all the
circumstances, I think the rule must be made absolute so far as respects the
5001.
The costs of the other mandamus cannot be included in this
rule; and there is a specific statutory provision respecting such costs.
Williams J. As to the costs, no precise or ascertained right
can be shewn. With respect to the objection on the ground of irregularity, no
doubt, we should presume that notice was proved at the time of the inquiry, unless
the contrary be shewn. We must suppose that all has been rightly done : and, on
the same ground, no objection
(1/2) Lord Deuman C.J. was absent.
6 AD. &E. 372. THE KING V. DA VIE
143
appears
to the form in which the compensation is given. The principal question is,
whether there be any remedy besides mandamus ; and it is clear that, if there
be, this rule cannot be made absolute. An order of sessions, awarding the
payment of money, can be enforced only by the circuitous pro-[372]-cess of
indictment. That gives no direct remedy. But the most important question is,
whether, the fifteenth section enacting that the verdict and judgment
"shall be deemed records to all intents and purposes," that operate
as a legislative declaration that there is to be a remedy by action of debt
upon the record. I am aware of no applicable instance. As, therefore, I doubt
whether there be any other efficient remedy, I think the mandamus should go. I
am also influenced by a doubt which I feel, whether the Legislature could have
intended to put the party to so cumbrous a course as an action of debt on the
record, to recover that for which they were professing to give a summary
remedy.
Coleridge J. Two requisites must concur to authorise this
application ; a right, and an absence of any other remedy for enforcing it.
Costs are asked for, both those of the previous mandamus, and those of the
inquiry. Now, when costs of a rule are given, there is no remedy, except that
arising upon the order of the Court. But here the costs asked for are claimed,
not as matter of common law, but under specific statutory enactment. Then as to
the 5001. damages. We must take it that the party has a specific right. Has she
then a clear remedy 1 It is said, in opposition to the rule, that this is either
a judgment like other judgments of the Court of Quarter Sessions, or in the
nature of a judgment of a Superior Court, and thus to be enforced by action of
debt on the record. Now the judgment of a Court of Quarter Sessions can be
enforced only by indictment. That has been held not to be a beneficial remedy.
All that could be obtained by it would be the fining or imprisonment of the
party refus-[373]-ing, which clearly would give no beneficial remedy to the
party aggrieved. Then, as to the remedy by action of debt, can any one say that
it clearly exists 1 The authority of 3 Blackstone's Com. 159, 160, was cited,
but no decision ; and the doctrine would certainly be now much disputed. As to
the regularity of the proceedings, where a mandamus has issued, and the party
makes no return, but consents to obey, can he say, upon an application for
another mandamus ancillary to the first, that the first was irregular? We must
suppose that the sessions, in obedience to the mandamus, have done all that was
necessary ; and we cannot, therefore, intend that notice has not been duly
given, or that the jury have gone beyond the proper limit in the compensaÁtion
which they have awarded.
Rule absolute, as to the 500l.