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1847.

The QUEEN

V.

EAST LANCASHIRE Railway Company.

Openshaw for the said compensation or in respect of his Queen's Bench. interest in the land; and that he had sustained great loss and damage in his estate "by reason of the matters and things herein before mentioned, and otherwise by reason and in consequence of the works done by you the said Company in the execution of the powers by the said act to you granted." The writ then, after some other recitals, commanded the Company to issue their warrant for summoning a jury to inquire, assess and determine by their verdict "the sum of money to be paid by you the said Company to the said L. R. Openshaw for the purchase of his interest in the said portion of of his land so taken by you as aforesaid; and also the sum of money to be paid by you to him by way of compensation for the injury done to his lands by the severance therefrom of the portion of land required and taken by you as aforesaid; and also the sum to be paid by you to him by way of compensation for the damage occasioned to the said lands of the said L. R. Openshaw as aforesaid, by reason and in consequence of the works done and to be done and executed by you the said Company in the execution of the powers by the said act to you granted as aforesaid."

In Easter term, 1846, a rule was obtained calling upon the prosecutor to shew cause why the mandamus should not be quashed; the ground assigned being that the mandatory part of the writ required more than was specified in the rule; or why the defendants should not have further time to make a return. Cause was shewn, on an affidavit by the clerk of the prosecutor's attorney, stating "that it has always been the principal point on the part of the prosecutor, not only to recover compensation for his interest in the said piece of ground so taken by the Railway Company as aforesaid, but

Volume IX. 1847.

The QUEEN

V.

EAST LANCASHIRE Railway Company.

also to be entitled to be compensated for the damage he had sustained by reason of the severance of one portion of his said property from another, as well as by the detriment sustained by the said prosecutor by reason and in consequence of the works of the said Railway Company." "That the writ of mandamus was prepared and settled in pursuance of such intention, and that it was not discovered, until an application had been made to quash, or enlarge the return thereof, that the said rule did not go to the extent originally prayed for," namely, to require an assessment on all the claims. The rule to quash was made absolute, May 6th, 1846: and on the same day the prosecutor obtained a rule to shew cause why the rule for a mandamus should not be amended by inserting words corresponding to those objected to in the writ. In the next term (June 10th, 1846), J. Gray shewed cause (a) against this rule, and cited Regina v. Barton (b) and Regina v. The Great Western Railway Company (c). Archbold supported the rule; but the Court discharged it.

In the same term (June 12th), Archbold obtained a

(a) Before Lord Denman C. J., Tatteson and Williams Js. (b) 9 Dowl. P. C. 1021. Trinity term (May 26th) 1841. In this case, a verdict having been entered for the Crown (Regina v. Barton, 11 4. & E. 343.), Byles moved to have the verdict entered on the first two counts, only, of the indictment: but, as he did not bring before the Court the notes of Park J., who had tried the case, but was since dead, the rule was discharged, Mich. T. 1840. Byles afterwards obtained a copy of the Judge's notes, and renewed the application. A rule nisi was granted, Hil. T. 1841, on reading the copy, which was verified by affidavit. Cause was now shewn (before Lord Denman C. J., Patteson, Williams, and Coleridge Js.); and Regina v. The Manchester and Leeris Railway Company, 8 A. & E. 413., was cited. Byles urged the peculiar circumstances of the present case, but admitted that the application was ad misericordiam; and the Court held that the general rule as to second applications must prevail. Rule discharged.

(c) 5 Q. B. 597.}

1847.

The QUEEN

v.

EAST LANCASHIRE Railway Company.

rule nisi for a mandamus calling upon the Company to Queen's Bench. issue their warrant for summoning a jury to ascertain the purchase money &c., and also assess the compensation for the injury by severance, and the damage occasioned by works done and to be done by the Company &c. ; using nearly the same words as those objected to in the former writ. This motion was made on the affidavits filed in support of the former rule for a mandamus, and on the affidavit used, as stated ante, pp. 981, 2., in opposing the rule to quash that writ. Archbold, in moving, stated the principal facts above detailed, and admitted that the defect in the first rule for a mandamus might have arisen from his own omission in indorsing the substance of the rule nisi on his brief. The affidavits used on the former application shewed that the prosecutor had, by letter, claimed compensation from the Company for "severance, inconvenience and damage;" and they contained statements of the injury which would be done by the severance of the land, and mentioned "the large amount of damage which, in consequence of the making of the said railway, is and will be done by people trespassing on the remainder of the said land held by this deponent." The affidavits in opposition to the present rule went through the previous proceedings (a), and alleged that the present application was "substantially the same" as the motion of May 6th

(a) The affidavits also set out the notice served by Openshaw upon the Company before the first application to this Court, stating that he was "entitled to compensation in respect of an interest in all that piece of land" &c.; that he desired the amount of such compensation to be determined by a jury &c.; that his interest in the said land &c. was a leasehold &c.; and "that the amount of compensation claimed by me in respect of my said interest, and for the injury and damage which I have already sustained and shall sustain by reason of the said piece of land and hereditaments being taken and used by the said railway company, and by reason of the making of the said railway, is the sum of 1244"

Volume IX. for adding words to the original rule for a mandamus; and was "founded upon no

1847.

The QUEEN

V.

EAST LANCA SHIRE Railway Company.

new or additional affidavits, but entirely upon the same facts and matter which were before this honourable Court when the rule nisi" of May 6th "was discharged."

Baines and J. Gray now shewed cause against the rule nisi for a second mandamus, and objected, first, that the affidavits did not shew a demand and refusal of compensation on the heads secondly and thirdly pointed out by the present application. (It was answered that the notice originally served on the Company was a sufficient demand; and the point was not further discussed.) Secondly, the case is now for the third time before the Court; and the application is substantially the same in its object and grounds as the motion to amend, against which the Court decided in last Trinity term. [Lord Denman C. J. Counsel had made a mistake in drawing up the rule for the former mandamus. We thought under the circumstances the application might be renewed, and granted the present rule.] It is laid down, in Regina v. The Manchester and Leeds Railway Company (a), as the almost universal and inflexible practice, "that the Court will not allow a party to succeed, on a second application, who has previously applied for the very same thing without coming properly prepared." Here that has now been twice done. [Patteson J. The prosecutor was originally furnished with materials; but the rule was not drawn up as at first intended: there was a mistake in the form, by the misprision of counsel, or of an officer of the Court.] In Regina v. The Great Western Railway

(a) 8 A. & E. 413. 427. See Regina v. Pickles, 8 Q. B. 599. 601, note (a).

1847.

The QUEEN

V.

EAST LANCA

SHIRE Railway
Company.

Company (a) Lord Denman C. J. said: "The general Queen's Bench. rule is that which was laid down in Regina v. The Manchester and Leeds Railway Company (b): the exception is where the alteration would be simply in the form of a title or jurat, and re-swearing the affidavit would clearly leave parties in the same situation in which they were before." In Ex parte Thompson (c) a mandamus had been moved for on affidavits which did not state a demand and refusal; the rule nisi was discharged on that ground; and then a demand was made, and a refusal given, and a new motion was made on affidavit stating these facts; but the Court held that the case was not taken out of the general principle, and refused a rule. [Coleridge J. Has it ever been laid down that, if an application has been made on materials which do not warrant it, there may not be a different application on the same materials?] The application here is substantially the same as before.

Martin and Archbold, contrà. The former motion for a mandamus was made on the same materials; but, in consequence of an error, the rule was not drawn up conformably to the intention and to the materials. The application now is only that a rule conformable to them may be drawn up.

Lord DENMAN C. J. I rather think we ought not to have granted a rule in this case. My brothers, however, take a more liberal view than I do. I think that relaxing the rules of practice does more mischief than enforcing them strictly in a particular case.

(a) 5 Q. B. 597. 601.

(b) 8 A. & E. 427.

(c) 6 Q. B. 721. But see Dixon v. Oliphant, 15 M. & W. 152.; Regina v. The Deptford Pier Company, 8 A. & E. 910. 917.

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