a

Bench of England or Ireland, according as the lands are situate,
on the application of either party," &c. This enactment gives the
Court no power to review the taxation. The nomination of
Master of the Court of Queen's Bench, is merely a designatio
persone; and confers no more authority upon this Court to review
the taxation, than if it had been provided that the costs should be
settled by an indifferent person. The reference, by this section, is
to the Master as an original arbitrator; and the proper mode, if
any, of reviewing his decision, is by treating it as a submission,
and making it a rule of Court, and then moving to set it aside.
(He referred to 1 Wms. Saund. 327 e, note (s), 6th ed.) But even
supposing the Court should hold otherwise, it is submitted that the
Master was justified in refusing to allow any costs to the claimant.
By the 51st section it is enacted, that "on every such inquiry
before a jury," "if the verdict of the jury be given for the same
or a less sum than the sum previously offered by the promoters
of the undertaking," "one-half of the costs of summoning,
impanelling, and returning the jury, and of taking the inquiry, and
recording the verdict and judgment thereon, in case such verdict
shall be taken, shall be defrayed by the owner of the lands, and the
other half by the promoters of the undertaking, and each party
shall bear his own costs, other than as aforesaid, incident to such
inquiry." Here the same sum as was given by the verdict, had
been previously offered by the promoters of the undertaking. It
will however be said that, as the offer was not made till after the
warrant for summoning the jury had been issued, the sum had not
been "
previously" offered within the meaning of the section.
The 38th section enacts, that "before the promoters of the under-
taking shall issue their warrant for summoning a jury for settling
any case of disputed compensation, they shall give not less than ten
days' notice to the other party;" "and in such notice," "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." The question is, whether the words "previously offered "
refer solely to the sum mentioned in the notice of issuing their
warrant, as that which the Company "are willing to give." It is
submitted they do not. The words in the 51st section, it is
submitted, clearly mean "previous" to the inquiry. All statutes
giving costs are to be construed strictly: Dibben v. Cooke (1); Ingle

(1) 2 Stra. 1005.

Ross

1'.

YORK, &C. RAILWAY Co.

[ *698 ]

Ross

YORK, &C.

v. Wordsworth (1). Any offer made before the inquiry actually takes place, is strictly a sum "previously offered," within that section. RAILWAY CO. The balance of inconvenience is in favour of such a construction, as it is in the power of the land owner to seriously obstruct any attempt to ascertain the real value of the premises. (He referred also to the 46th section.)

[ *699 ]

Granger, in support of the rule:

It is submitted that the legislature, in naming a Master of the Queen's Bench as the party before whom the costs are to be taxed, intended that a taxation under the 52nd section should have all the consequences of an ordinary taxation. But if the Court should be of a different opinion, at any rate, the construction sought to be put upon the words "previously offered" in the 51st section cannot be supported. The legislature has provided for one of two cases; either that the costs of the inquiry shall be borne wholly by the Company, in the event of the verdict being for more than the sum previously offered; or that the Company and the claimant shall bear the costs of the inquiry between them, and each party pay his own costs, in the event of its being for the same or a less sum than "the sum previously offered." The words are, "the sum previously offered," not "any sum." There is no mention made of an offer in any other section than the 38th section, to which alone, therefore, the words must refer. The 46th section, which requires "ten days' notice of the time and place of the inquiry," contains no provision as to any offer of a sum. A contrary construction would be most unreasonable, for it would be in the power of a Railway Company to insert a mere nominal sum in the notice given under the 38th section, and so defeat the intention of the legislature in that respect; and then proceed with an inquiry, and, at the last moment, make a reasonable offer, which would expose the claimant to a moiety of the expenses of the inquiry, and all his own costs. If it had been the intention of the legislature that an offer made subsequent to the notice of issuing the warrant by the Company should be of any avail under the 51st section, it is only reasonable to suppose, that some provision would have been made for the claimant's costs, incurred previous to the time of the offer being made.

Cur. adr, vult.

(1) 3 Burr. 1284.

ERLE, J. (1):

In this case, a rule for the Master to review the taxation of costs, under 8 & 9 Vict. c. 18, ss. 51 and 52, was moved for, on the ground that the Master was mistaken in disallowing costs by reason of an offer of the sum found by the jury having been made, such offer being alleged to be of no avail, being made too late.

A preliminary objection was taken in answer, namely, that the reference is to the Master as an original arbitrator, and that the Court has no power to review the decision of the Master upon a matter so referred to him; and it appears to me that this objection must prevail, and that the principle of Morgan v. Smith (2) applies. Where the Court refers the taxation to its officer, it has the power of reviewing it; because the power of the officer is delegated to him by the Court; and his act is not effective, unless adopted by the Court.

But the taxation in question is made without any delegation of power from the Court, and without any express or implied liability

to review.

Where the legislature intended the Court to have control over the taxation, it has directed such Court to award costs. See section 80, as to costs where the money has been deposited; section 83, as to costs of conveyances; and section 126, as to costs of litigating a title.

Ross

ľ.

YORK, &C. RAILWAY Co.

The rule must therefore be discharged; but without costs, as the substantial right appears to me to be with the claimant.

(1) The judgment was delivered in Hilary Vacation, 1849, by WIGHTMAN,

Rule discharged, without costs.

J., for ERLE, J.

(2) 9 M. & W. 427.

[ 700 ]

INDEX.

ADMINISTRATION. See Executor and Administrator.

2.

ARBITRATION-1. Award-Order nisi to set aside award may be
obtained ex parte-Umpire-Liberty to join in inquiry before duty to
act arises-Application to set aside award on ground of umpire's
interest. In re Elliot
106
Conduct of arbitrator and umpire-Case proceeded with
and award made in absence of second arbitrator-Evidence of one party
not completed-Award set aside. In re Hawley and North Staffordshire
Rail, Co.
113
Service of award-Copy must be delivered to party and
original must be shown. Lloyd v. Harris

3.

414

ASSAULT. See County Court, 1.
ASSIGNMENT-Trust fund-Assignment of share-"One-eighth or
other part or share" to which assignor entitled-Whether passing
more than one-eighth. Gray v. Earl of Limerick
249

BANKRUPTCY-Deed of arrangement-Agreement that debtor
should carry on business without "molestation or interference"-
Action brought by creditor-Release of debt-Estoppel-Plea in bar.
Gibbons v. Vouillon
593

BILL OF EXCHANGE AND PROMISSORY NOTE-1. Accommo-
dation bill-Evidence-Bill to take up former accommodation accept-
ance of same party. Thomas v. Fenton

2.

831
Notice of dishonour-Reasonable expectation of assets.

Thomas v. Fenton

3.

831

Payment-Re-issue-Stamp duty-Payment by stranger
to bill after maturity-Action by holder against drawer. Thomas v.

Fenton

831
4. Foreign bill-Bill drawn in one country and payable in
another-Dishonour of bill-Liability of drawer-Set-off-Lex loci
contractus. Allen v. Kemble

5.

Consideration

66

Credit to remitter-Usage of trade
Failure of remitter-Liability of drawer who has received no value-
Pleading. Munroe v. Bordier ·

785

6. Promissory note-Indorsement-Agent-Authority to indorse
-General authority to wife-Indorsement by daughter by direction
of wife. Lord v. Hall

7.

649

Note payable to order and indorsed in blank-Memoran-
dum at foot-Place of payment-Note payable to bearer. Musters v.

Baretto

8.

557

Presentment for payment-Place of payment-Memo-
randum-Construction of words. Vander Donckt v. Thellusson