writ, the question of right is decided. How is it to be decided if the writ be issued, and the jury are not to entertain it? The section, it will be observed, is silent as to all particulars after the issuing of the writ and, if we refer back to the previous sections, from the 41st to the 50th inclusive, which provide for the proceedings before the same tribunal in respect of the purchase and taking of lands, it will be found that, although the verdict and judgment are made records, they are not made records of any superior Court; nor is there any express provision for any writ of execution to issue for enforcing them. The consequence is, that an action must be resorted to for recovering the amount : [*468 and, assuming that the sheriff's jury have no jurisdiction to try the title to compensation, that question will come in issue upon the trial of that action; and so the question of title will ultimately be decided in this case exactly as where the writ has not been issued at all, and with all the same advantages. I agree with Lord Cottenham, giving judgment in The London and North Western Railway Company v. Smith, 1 Macn. & G. 216, in his remark that it is an inconvenient and unreasonable course to try the amount first and the title last. I think he points out how the Legislature came so to ordain: from the desire, namely, to prevent the having recourse to mandamus: but the inconvenience of this proceeding inverso ordine is certainly not so great as that of submitting the question to be tried by the sheriff's jury without a competent direction, and with no recourse to any Court of Review or writ of error.

I must now proceed to inquire, how far the decisions which have been made on this section interfere with or confirm the view to which an examination of the statute alone has led us. The point has repeatedly come indirectly before the Courts of Equity.

In the case I have just referred to, Lord Cottenham restrained a party from proceeding under the statute until he had established his right in an action at law. He did not, in terms, decide whether the jury could or could not enter on the question of right; but he clearly proceeded on the ground that their finding on it would not be conclusive: he treated them as assessing damages only, the right to recover which, after all, would have to be *established in an action on the judg[*469 ment. When, therefore, the title was in dispute, he thought it was inequitable to enforce the legal right to the ascertainment of the damages before that had been settled, because it might be a fruitless litigation, and therefore restrained the claimant. Though he decided no more than was necessary, nothing shows that he contemplated for a moment the sheriff's jury entertaining the question of title, which, upon his argument, if they did, they could conclude nothing upon. So far, therefore, as his opinion is pronounced at all, it agrees with the view I have taken.

This point, however, came to be considered by Lord Truro in The

East and West India Docks and Birmingham Junction Railway Company v. Gattke, 3 Macn. & G. 155. It was not, however, necessary for the decision of the case to pronounce upon it; and the case was decided upon another point. Nor do we find that his Lordship anywhere expresses a clear opinion that the jury are competent to decide the question of right. He says, indeed, that they have repeatedly decided questions upon the construction of clauses in the Act which have arisen. incidentally and indirectly before them; a power necessarily incident to the trial even of the question of amount, proving nothing, as to the extent of direct jurisdiction; and he approves of the judgment of this Court in Regina v. Lancaster and Preston Junction Railway Company, 6 Q. B. 759 (E. C. L. R. vol. 51), in which we upheld the finding by a jury that the claimant had sustained no damage. But we did so on the ground, not that the jury might go beyond the question of *470] amount, but, in the words of Lord Denman, because "the question, whether any damage has been sustained or not, is inseparable from the question, how much damage has been sustained," and, in the words which I then appear to have used, that, "though the inquiry may go only to the quantum, that quantum may be nothing." On the other hand, he contrasts the course he was desired by the bill to pursue with the course prescribed by the statute, which he describes thus: "going to a jury and assessing the compensation and leaving the question of his right to be afterwards decided."(a) This case was followed in order of time by that of South Staffordshire Railway Company v. Hall, 1 Sim. N. S. 373, in which Lord Cranworth, then Vice-Chancellor, dissolved an injunction upon its authority, which he had granted upon the authority of The London and North Western Railway Company v. Smith, 1 Macn. & G. 216, considering Lord Truro to have, in effect, overruled it, and acting of course in accordance with the last authority of the Court of Appeal. He decided nothing, but acted as Judge of an inferior Court according to the decision of the Court of Appeal. It is right, however, to state that his Lordship expresses himself, on consideration, dissatisfied with Lord Cottenham's decision.

Again, and later in the same year, came on the case of The London and North Western Railway Company v. Bradley, 3 Macn. & G. 336, before Lord Truro, who acted upon his former decision. The *471] Sutton Harbour Improvement Company v. Hitchens, 1 De G. M. & G. 161, (b) a still later case, before the Lords Justices Knight Bruce and Lord Cranworth, in December, 1851, was cited, in which a similar injunction to restrain proceedings under the statute was dissolved on appeal.

I have gone thus carefully through the authorities cited from the Court of Chancery, because much reliance was placed on them in the

(a) These words were read from 20 L. J. (N. S.) Ch. p. 223. The corresponding passage is in 3 Macn. & G. 173; where, however, the particular expression does not occur. (b) See S. C., before Lord Langdale, M. R., 13 Beav. 408.

argument, and from the sincere respect which is due to whatever falls upon Judges so distinguished. But, in truth, they conclude nothing on the very point now to be decided. In all these cases the question was one purely of equity. Has the company an equity which entitles it to the interference of the Court, to restrain the complainant from pursuing that legal remedy which the statute has given him? And it is now settled, contrary to the opinion of Lord Cottenham, that it has not. He said: The remedy was so inconvenient and oppressive, that he would compel the complainant to establish his right to it by an action at law first. The answer has now been: Be it so; the remedy may be inconvenient; but the statute has given it, under the circumstances, in lieu of the remedy by mandamus, which it took away: and, that being so, where it is bonâ fide pursued and not for dishonest and oppressive purposes, equity will not interfere to prevent a party from having recourse to it. It is true that Lord Cottenham expressed an opinion that the jury could not meddle with the question of title; and that aggravated the inconvenience of the remedy. But the Judges who have differed with him, one of whom (Lord Truro) seems to have thought that [*472 the jury may consider (not conclusively determine, be it observed) the question of title, do not decide the cases before them on this narrow ground, but on the broad ground, that the statutable remedy, be it more or less inconvenient, is a legal right, with which equity will not interfere, unless there be some other ground than the necessary hardship involved in its mere use.

Lord Truro's opinion, however, on which all the subsequent cases turn, is entitled to much consideration. It is founded on two grounds: first, that the jury has always considered questions upon the construction of the section arising incidentally before them. But, with great respect, this practice, however well founded, proves but little: wherever the inquiry as to the principal matter is within the competence of any tribunal, whatever, incidentally arising, bears upon that, must, ex necessitate, for the purposes of that inquiry, be within its competence also. It is in this way that Courts of Common Law occasionally deal with questions of Ecclesiastical or Maritime law, and vice versa. In this way judges at Nisi Prius sometimes dispose of questions of fact: and instances of the same kind might be multiplied indefinitely. When, therefore, in order to determine the amount, it is necessary to settle whether this or that statement of a claim shows it to be of a kind which is within the section (and this was the sort of question which occurred in several of the equity cases), the jury must, as well as they can, with such help as they have from the sheriff or his assessor, decide the point: for, unless they did so, they could not ascertain the amount of compensation. Lord Truro's second ground is that the point has clearly been decided by the Courts of law: *and this, therefore, will [*473 bring us to the examination of the cases relied on by him,

and in the argument before us, which is the only remaining topic of inquiry.

The first of these cases, Regina v. The Eastern Counties Railway Company, 2 Q. B. 347 (E. C. L. R. vol. 42), was a case upon the return to a mandamus, arising and decided long before the passing of the statute we are now construing; and, according to the reports of it in 2 Q. B. and 11 Law Journal,(a) some points which are noticed by Lord Truro as having arisen in it do not seem to have arisen: certainly they are not noticed in the written judgments: if so, it had no bearing whatever in the present question. The same may be said of Rex v. The Directors of the Bristol Dock Company, 12 East, 429. Corrigal v. The London and Blackwall Railway Company, 5 Man. & Gr. 219 (E. C. L. R. vol. 44), was upon a local Act prior to the passing of stat. 8 & 9 Vict. c. 18 and it was an action upon the sheriff's judgment after a verdict by the compensation jury: and, so far as it has any bearing on the present case, the question arose on the fourth plea, in which, by way of invalidating the inquisition, it was alleged that evidence was given before the jury, not only of the loss in respect of good-will, tenant's fixtures and otherwise, by the taking of the dwelling-house, but also of loss sustained in respect of the dwelling-house by reason of the construction of the railway; whence it was inferred, in argument, that the sum assessed by the jury was composed of damages given in respect of both those grounds of injury. The Court, however, thought that the mere fact of the evidence having been given could not affect the validity of the verdict; "for," say they, "such evidence may have been given to show that the house had *been deteriorated, which was *474] necessary to give the jurisdiction to the sheriff and jury:" and, as to the inference of fact, they held that it was excluded by the language of the verdict itself. The words which we have cited from the judgment are the only words which bear on the present question. The Act(b) empowered the jury to inquire of, and assess, and give a verdict for the sum of money to be paid for the purchase," "and also the sum of money to be paid by way of satisfaction," &c., "for good-will, improvements, tenant's fixtures, or for any injury or damage whatsoever." The claim was under both heads: but, as the right to insist on either was founded on the house having been deteriorated in the course of constructing the railway, it may be inferred, from the words cited, that the Court thought it a relevant subject of inquiry by the compensation jury, in order to the founding of their own jurisdiction. To this extent it is adverse to our construction of the statute before us: but it is a remark not founded on any previous argument, but on an assumption; it was used to meet an objection of a totally different kind

(a) 11 L. J. (N. S.) Q. B. 66.

(b) 6 & 7 W. 4, c. cxxiii., local and personal, public, "For making a railway from The Minories to Blackwall, with branches, to be called 'The Commercial Railway."" See sect. 22, in note to 5 Man. & G. 231.

from that we have been considering: and it was quite unnecessary to make it; for the language of the verdict showed that the evidence, whether properly or improperly admitted, had not been allowed to enter into the calculation of the damages. Williams v. Jones, 13 M. & W. 628,† is upon another point; and Regina v. Lancaster and Preston Railway Company, 6 Q. B. 759 (E. C. L. R. vol. 51), we have already noticed incidentally. All that any member of this Court there said was upon the *power of the jury to consider any question which affected the quantum of damages.

[*475

These are all the decisions at law to which Lord Truro's judgment refers. But, in the argument against the rule, the case of Regina v. Metropolitan Commissioners of Sewers, 1 E. & B. 694 (E. C. L. R. vol. 72), was referred to: but that case, so far as it is relevant, supports the rule: it was decided, however, on the special words of the Act there under consideration, which, in terms, limited the functions of the jury to questions upon amount only. (a)

On the other hand, Chabot v. Lord Morpeth, 15 Q. B. 446 (E. C. L. R. vol. 69), was referred to, which, although not on the same statute, nor precisely in point, contains observations from the Bench which favour the argument of the present complainant.

The result of the whole examination appears to be, that the question now to be determined has never yet received direct and considered decision.

As before intimated, we think that the words of the section, as well as the justice and convenience of the case, are against the course taken upon this inquisition. It is admitted that the sheriff's jury cannot conclusively determine the question of title: that in itself is an argument against their entering upon it at all, on the ground of delay and expense. It must be admitted, also, that, even for a preliminary and inconclusive trial, they are an unsatisfactory tribunal, and their decision additionally objectionable, because no error in the direction given to them, nor any mistake, or even perverseness, in their finding can be reviewed, as in a trial *at Nisi Prius. Experience, moreover, shows that an in[*476 conclusive preliminary inquiry is very often not merely useless, but has a tendency to interfere injuriously with the conduct and result of the second and conclusive inquiry. The question once examined and found upon does not come before the jury on the second trial perfectly free from prejudice.

Upon all these grounds I think the rule to remove the inquisition should be made absolute.

Lord CAMPBELL, who has read this judgment, desires me to express his concurrence; and he states that he takes the same view as I have

(a) It was suggested, in argument, that the power of the jury to inquire into title was assumed in Regina v. Great Northern Railway Company, 14 Q. B. 25 (E. C. L. R. vol. 68).