award cannot be enforced by attachment where the submission to arbitration is not exactly according to the statute, In re N. Staffordshire Ry. Co. and Landor, 17 L. J. Ex. 350, 354, though the award may be binding on the parties by reason of their conduct, which may be called their parol and non-statutory submission, S.C.

Either the submission may be made a rule of Court [sec. 36, post, p. 81], and then the performance of the award may be compelled by attachment under the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), sec. 17, under which, if steps are not taken to set aside the award within a limited period, the attachment follows as a matter of course, or an action may be brought for the specific performance of the agreement to sell the property at the price ascertained by the award : Wakefield v. Llanelly Ry., etc., Co., 34 Beav. 245. The suit for specific performance may be instituted either by the vendor, Adams v. London and Blackwall Ry. Co., 2 M. & G. 118; or by the company, Regent's Canal Co. v. Ware, 23 Beav. 575. The notice to treat followed by the award constitutes a complete contract, to which all the ordinary rules as between vendor and purchaser apply, e.g. the promoters must pay interest from the time when a good title is shown: In re Pigott and G. W. Ry. Co., 18 Ch. D. 146; Mason v. Stokes Bay Ry. Co., 32 L. J. Ch. 110.

An action cannot be brought for the amount of the award until the vendors have executed a conveyance of the premises to the promoters: Guardians of E. London Union v. Metr. Ry. Co., L. R. 4 Ex. 309, applying to awards under the L. C. C. Acts the general rule laid down in Laird v. Pim, 7 M. & W. 474. Compare also Howell v. Metr. D. Ry. Co., 19 Ch. D. 508, and the cases cited in the notes to sec. 18, ante, p. 41, and to ss. 49 and 50, post, p. 96. But where in the submission a certain time is fixed for payment of the compensation assessed, the execution of the conveyance is not a condition precedent: Lindsay v. D. London and Portsmouth Ry. Co.,

15 Jur. 224.

The promoters may be compelled by mandamus to furnish a copy of the award to the claimant, Reg. v. Cambrian Ry. Co., L. R. 4 Q. B. 320. See also Reg. v. S. Devon Ry. Co., 15 Q. B. 1043; and Reg. v. W. Midland Ry. Co., 11 W. R. 857, where it was decided that a mandamus will issue to compel the promoters to take up the award; and In re Harper,

Vict.

c. 18,

s. 35

8 Vict. c. 18, s. 35.

L. R. 18 Eq. 539, where the M.R. made an order against the company to the same effect. To a mandamus to compel a company to take up an award, the latter may make a return that the claimant before arbitration accepted a sum in full satisfaction, Reg. v. W. Midland Ry. Co., 11 W. R. 857; or that his land has not been injuriously affected by the company's works within the meaning of the Act, Reg. v. Cambrian Ry. Co., L. R. 4 Q. B. 320.

The award will not be set aside for excess of jurisdiction unless it appear on the face of the award itself that the arbitrator or umpire has awarded compensation in respect of a claim not within the reference, In re Brogden and Llynvi Ry. Co., 9 C. B. N. S. 229; nor will an award be set aside where the excess of jurisdiction is trifling, In re N. Staffordshire Ry. Co., 2 Ex. 244; nor or on the ground that the award is against the evidence, Bradshaw's Arbitration, 12 Q. B. 562; nor where the irregularity is not one of substance, Skerratt v. N. Staffordshire Ry. Co., 5 Ry. Cas. 178.

The Court has jurisdiction to set aside the award of an umpire, though neither the appointment of the umpire nor his award has been made a rule of Court: Bradshaw's Arbitration, ubi supra. It is sufficient to make the appointments of arbitrators or submission to arbitration a rule of Court, S. C.; Ex p. Harper, L. R. 18 Eq. 539. It is not now the practice to make the award a rule of Court: Jones v. Wedgewood, 19 Ch. D. 56, and sec. 36 infra.

In In re Harper, L. R. 20 Eq. 39, an award that the company "do pay the sum of £500 by way of compensation" was held to be good, although the arbitrator had strictly no power to order payment: Lindsay v. Direct London and Portsmouth Ry. Co., 1 L. M. & P. 529.

When the submission contains two heads of claim, and the award passes over one of them in silence, the award will not be set aside unless the arbitrators can be shown to have made a blunder, or to have been negligent or forgetful: In re D. of Beaufort, 29 L. J. C. P. 241; Brown v. Croydon Canal Co., 9 A. & E. 522.

See also Reg. v. Lancaster, etc., Ry. Co., 6 Q. B. 759, and Bradley v. Southampton L. Bd. of Health, 4 E. & B. 1014.

In any proceeding to set aside or remit the award, In re Dare Valley Ry. Co., L. R. 6 Eq. 429, or to enforce the award, D. of Buccleuch v. Metr. Bd. of Works, L. R. 5 Ex. 221, the

evidence of the arbitrators or umpire is admissible to show what subjects are included in the general terms of the award, but not to show what elements entered into their or his consideration in determining the quantum of compensation, S. C. L. R. 4 H. L. 418, 457. He may be asked in reference to the proceedings before him "what claims were made and what claims were admitted," but his evidence "is not admissible to explain or to aid, much less to attempt to contradict what is to be found on the face of the award:" ibid. p. 462; Hodgkinson v. Fernie, 27 L. J., C. P. 66.

When a submission is made a rule of Court under section 36 the Court has the same jurisdiction in dealing with it as in the case of submissions under 9 & 10 Will. III. c. 15, and any application to set it aside is in time, although it will not be heard until after the time limited by the Act: In re Harper, L. R. 20 Eq. 39; In re Corp. of Huddersfield and Jacomb, L. R. 17 Eq. 476, 10 Ch. 92. The application may be made on notice of motion, which must be given within the time limited by the Act, S. C.; Smith v. Parker, etc., Mining Co., 6 Q. B. D. 67.

An order nisi to set aside an award may be made on an ex parte application: In re Elliott and S. Devon Ry., 2 De G. J. & Sm. 17 (q. v. for form of such order), but it seems that in a case of difficulty the Court will not make an order to set aside an award on motion: In re Wilts, etc., Ry. Co. and Fooks, 3 Ex. 728; S. C. 2 M. & G. 357.

See also sec. 37, infra.

8 Viot.

o. 18, s. 35.

XXXVI. The submission to any such arbitration (a) s. 36. may be made a rule of any of the Superior Courts (b), Submission on the application of either of the parties.

(a) Sec. 25.

(b) See 9 & 10 Will. III. c. 15, and the C. L. P. A. 1854, s. 17.

By sec. 25, ante, p. 55, the appointment of an arbitrator after delivery to him is a submission to arbitration on the part of the party by whom the same shall be made.

In re Hawley and N. Staffordshire Ry. Co., 2 De G. & Sm. 33, the claimants refused to produce the appointment of their arbitrator for the purpose of making the submission a rule of Court, but the admission of the appointment in the claimants'

G

may be

made a

rule of Court.

8 Vict. c. 18, s. 36.

s. 37.

Award not

void through error in form.

s. 38. Promoters of the under

taking to give notice before summoning a jury.

affidavit in opposition to the motion was taken as sufficient evidence of it, and an order under this section was made accordingly. See form of order, ibid. p. 41.

A submission cannot be made a rule of Court unless it is in pursuance of the Act strictly-therefore an additional and collateral submission, though made to the same arbitrator who is appointed to determine a question under the Act, and made by the same instrument, cannot be made a rule of Court so as to enable the Court to set aside the award made in pursuance of such submission: In re Ware, 9 Ex. 395.

XXXVII. No award (a) made with respect to any question referred to arbitration under the provisions of this or the Special Act shall be set aside for irregularity or error in matter of form.

(a) Sec. 35.

XXXVIII. Before the promoters of the undertaking shall issue their warrant for summoning a jury for settling any case of disputed compensation (a) they shall give not less than ten days' notice (b) to the other party of their intention to cause such jury to be summoned, and in such notice the promoters of the undertaking shall state what sum of money they are willing to give for the interest in such lands sought to be purchased by them from such party, and for the damage to be sustained by him by the execution of the works.

"Jury for settling any case of disputed compensation."-Sections 38-57 (inclusive) provide for the settlement of compensation by a jury. This mode of assessment may be brought into operation if the amount claimed does not exceed £50 (sec. 22, ante, p. 47):

1. If the claimant does not demand settlement by arbitration under sec. 23, ante, p. 48; or

2. if in an arbitration under that section no award is made by the arbitrators or the umpire for three months; or

3. no final award is made; or

4. if notice is given under sec. 68, post, p. 112.

A "case of disputed compensation" is the term used in sec. 21, ante, p. 45. Such a case may arise either

1. from failure (for twenty-one days after service of the notice to treat) to state particulars of claim; or

2. from failure (for a like period) to treat with the promoters; or

3. in default of an agreement being come to between the parties.

Where no notice to treat has been served there is no "case of disputed compensation " within the above definition, and hence the promoters have in such a case no power to summon a jury: Doe v. London and Croydon Ry. Co., 1 Ry. Cas. 257.

Each claimant is entitled to a separate assessment although several persons may have separate interests in the land to be taken, Abrahams v. Mayor etc. of London, L. R. 6 Eq. 625, where the defendants attempted to have the claims of a sublessee, his under-lessee, and several persons claiming under the latter, assessed at one and the same time by the same jury. See also the cases collected on pp. 40 and 41 under the heading "Parties to whom Notice is to be given."

Where a valid notice has been given to take part of a house, and on that a valid counter-notice has been given to take the whole, the notice and counter-notice will be treated as one notice for the purpose of enabling the jury to assess the value of the property forming the subject-matter of the notice and counter-notice: Pinchin v. London and Blackwall Ry. Co., 5 De G. M. & G. 851.

Notice of intention to issue Warrant.-In cases falling under sec. 68, post, p. 112, which section does not incorporate sec. 38, Hayward v. Metr. Ry. Co., 4 B. & S. 787, the initiative is taken by the claimant who claims settlement by jury and states particulars, and the company are not required to give a notice of their intention to issue a warrant in compliance with the claimant's notice: Railstone v. York etc. Ry. Co., 15 Q. B. 404; Metr. Ry. Co. v. Turnham, 14 C. B. N. S. 212.

This section follows exactly the scheme pointed out in sec. 23, ante, p. 48. "The party taking the initiative, the company, are required, when they give their notice, to state what sum they are willing to pay to the claimant, so that

8 Vict.

o. 18,

s. 38.