Taylor against Clemson and Vaughan
| Jurisdiction | England & Wales |
| Judgment Date | 07 February 1842 |
| Date | 07 February 1842 |
| Court | Exchequer |
English Reports Citation: 114 E.R. 378
IN THE EXCHEQUER CHAMBER.
Affirmed in House of Lords, 11 Cl. & F. 610; 8 E. R. 1233 (with note).
[978] in the exchequer chamber. (error from the queen's bench.) taylor against clemson and vaughan. Monday, February 7th, 1842. In an action for use and occupation, the defence was a rightful eviction of defendants by a railway company, under a local Act, 6 & 7 W. 4, c. cxi. Sect. 160 authorized the company to enter lands, on payment or tender of such sums of money as should have been awarded by a jury, in manner aforesaid, for the purchase. Sect. 138 enacted that, for settling differences between the company and owners and occupiers of, or persons interested in, lands to be taken, if any person interested should not agree with the company as to amount of purchase money, or if any party entitled should refuse to accept such purchase money as should be offered by the company and, by notice in writing to them, should request that the matter in dispute might be submitted to a jury, or if any such party should for twenty-one days after notice to him in writing neglect or refuse to treat, or should not agree with the company for the sale of his interest, or should be prevented from treating by absence, or should by any impediment or disability be incapable of making an agreement or conveyance, or should not disclose his title if required by the company, or in any other case where agreement for the purchase could not be made, the company were to issue their warrant to the sheriff to summon a jury, who should inquire of, assess and give a verdict for, the sum to be paid for purchase of the lands, and the sheriff should give judgment for such purchase 2Q. B.9W. TAYLOR V. CLEMSON 379 money (a). The company issued a warrant, purporting that they did, by that their warrant, pursuant to the powers given them by the Act, require the sheriff to samraon a jury for the purpose of inquiring of, assessing and giving a verdict for, the sum to be paid to plaintiff (the owner of the lands in question) for the purchase of the lands, which were about to be purchased under the authority of the Act. The jury was summoned, and found a verdict; whereupon an inquisition was drawn as follows. " Lancashire to wit. An inquisition, verdict and judgment, had, taken, and given, at," &c., "before me," T. B. C., "sheriff," &c., " pursuant to an Act," &o., " on the oaths of," &c. (naming the jurymen), "here duly impan-nelled," &c., "by the said sheriff of," &c., in pursuance of and in obedience to a warrant made and issued under," &o. (the company's seal), "to me directed and delivered, and hereunto annexed ; who, being sworn and charged as in and by the said warrant directed, upon their oaths present and say that they have inquired of, found and assessed, and do find, assess, and give this their verdict for, the sum of," &c. to be paid by the company, " for the purchase of," &c. (the property in question), " all and singular which said premises are in the said warrant particularised, and are by the said Act of Parliament authorized to be taken by" the company, "for the purposes in the said Act mentioned." " Whereupon I, the said sheriff, in pursuance of the said Act," " do pronounce and give judgment for such purchase money so assessed," &c., "according to the direction of the said Act." Held that, on the warrant and inquisition together, it wag to be intended that no agreement could be made between the parties, and therefore the jurisdiction, under sect. 138, appeared on the face of the proceedings. By sect. 7, the company could not take any ground set apart and used, before a day named, as and for a garden or yard, if not specified in the schedule to the Act, unless the omission proceeded from mistake, and should be so certified in manner before provided for in cases of unintentional errors in the book of reference: sect. 5 providing that, where matters were erroneously described in that book, two justices, in case of a dispute about the same, might certify that the erroneous description proceeded from mistake. The schedule, in many instances, specified house, garden and yard, together, in the description of a single property. The land in question contained a house, and land in the same curtilage with the house, used as a yard and garden before the day named. The company gave the owner notice that they should apply for a certificate as to omissions in the schedule, relating to a house, yard and garden : the justices certified for a house, reciting that they did so on proof adduced. On the trial of the action, the jury found specially that the yard and garden were parcel of and included in the description of the house in the certificate, but left to the Court whether they ought to have been separately specified. Held: 1. That it was not necessary that the inquisition should mention the certificate. 2. That the certificate itself, and the application for it, shewed a dispute, and therefore the certificate shewed jurisdiction without expressly averring such dispute. 3. That, upon tile finding of the jury, it must be taken that the certificate sufficiently described the yard and garden. The Act prescribed the general line of the railway ; and afterwards (sect. 59) directed that it should pass between streets A. and C., and so as to leave 24 yards between the railway and either A. or C.; or otherwise, if there were not 24 yards between, the company should, if required, purchase such space as was less than 24 yards, and also half of A. or C., as the case might be. The railway, without deviating from the line first prescribed, passed over street A.; but the company had previously purchased the whole of street A. Held that this was a compliance with sect. 59. [Affirmed in House of Lords, 11 01. & F. 610; 8 E. R. 1233 (with note).] Assurapsit for 261. 5s., for the use and occupation of premises described in the declaration as certain messuages, cottages, cellars, a school house and [979] premises. The defendants, as to 141., paid so much into Court; and, as to the residue, pleaded non aasumpait. The plaintiff took the 141. out of Court; and joined issue as to the residue. (a) Thoe portions of the Act are omitted in the marginal abstract, which relate only to points made for the plaintiff on which the Court pronounced no opinion. 380 TAYLOR V. CLEMSON 2XJ.B.980. On the trial, before Maule J., at the Liverpool Summer Assizes, 1839, it appeared that the action was defended by the Manchester and Leeds Railway Company, who had entered and evicted the defendants (then being tenants of the plaintiff) during the term for which the money was claimed. The question was whether the company were entitled to do so, under stat. 6 & 7 W. 4, c. cxi. (local and personal, public) " for making a railway from Manchester to Leeds." Several questions of law and fact arose: and it was finally arranged, with the sanction of the learned Judge, that the opinion of the jury should be taken on all the questions of fact, and a special verdict framed on the [980] finding; and that judgment should be entered in the Court of Queen's Bench, according to the view taken by the learned Judge at Nisi Prius. The jury having returned their verdict on the several points submitted to them, his Lordship decided that the defendants were entitled to the postea. The material provisions of the Act were the following. Sect. 1 incorporates "The Manchester and Leeds Railway Company." Sect, 3 makes it lawful for the company to make and maintain a railway, in the line or course, and upon, across, under or over the lands, delineated on the plans and described in the books of reference deposited respectively with certain clerks of the peace ; which lands are described as passing through certain parishes, &c., in Lancashire and Yorkshire, including tbe borough of Leeds. Sect. 4 recites that " maps or plans and sections, describing the line of the said railway, and the lands in, through, under, or over, and upon which the same is intended to be carried or made, together with books of reference thereto containing lists of the names of the owners and occupiers or reputed owners and occupiers of such lands, have been deposited " with certain clerks of the peace. Sect. 5. "Provided always, and be it further enacted, that it shall be lawful for the said company to make the said railway and other works upon, in, over, or through the land* delineated on the said maps or plans, although such lands or any of them, or the situation thereof respectively, or the name of the owners or of the occupiers thereof respectively, may happen to be omitted, mis-stated, or erroneously described in this Act or in the schedule thereto, or in the said books of reference, if it shall appear to any two or more justices of the peace for the said County Palatine of Lancaster, or for the West Riding of the county of YWk, or for the borough of Leeds, (in case of a dispute about the same), and be certified by writing under their hands, that such omission, mis-statement, or erroneous description proceeded from mistake ; and the certificate of the said justices shall be deposited with and remain in the custody of the clerk of the peace for the said County Palatine of Lancaster, or for the said West Riding, or for the said borough of Leeds, as the case may require." Sect. 7. " Provided also, and be it further enacted, that nothing herein contained shall authorize the said company, or any person acting under their authority, to take, injure, or damage, for the purposes of this Act, any house or other building which was erected or built on or before the 30th day of November 1835, or any ground which was then set apart and used as and for a garden, orchard, yard, park, paddock, plantation, planted walk, or [981] avenue to a house, or any inclosed ground planted as an ornament or shelter to a house, or planted and set apart as a nursery for trees, other than and...
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...& Ors [1898] 1 QB 582 R v St Edmundsbury and Ipswich Diocese (Chancellor) and Anor; Ex parte White and Anor [1947] 2 All ER 170 Taylor v Clemson and Vaughan (1842) 2 QB 978; 114 ER 378 Johnstone v Commonwealth of Australia (1979) 52 ALJR 350 Re Laycock and Australian Securities Commissi......