Wm. M. Barnes. In fact, the due appointment and swearing in of all these arbitrators is undisputed.

An award was finally made in May, 1882, and this award is that of the two official arbitrators only; awarding for certain described land, delineated in a diagram attached the sum of $3,048.

The arbitrator, Barnes, declined to join in the award, claiming that the amount should have been some seven or eight times larger than that allowed by the other arbitrators.

The defendant Company, which had entered upon the land and run its line through it before the arbitration of the plaintiff's claim, has since continued in possession, and the plaintiff now seeks to eject the Company upon the ground that the award is void, and that her title to the property has not become divested in any way.

The defendant's case was supported by evidence of the award and other formal documents, and by the testimony of Mr. A. M. Mackay and Mr. P. Cleary, the arbitrators appointed under the Statute by the Government. They say that Barnes appeared upon the arbitration as the plaintiff's representative and agent as well as arbitrator, produced the evidence of her title, sat with them on several occasions, and considered the amount to be awarded; that they proposed a compensation at the rate of $8 per foot, afterwards raised to $9; that to neither of these propositions would Barnes assent, and that having allowed the award to remain over for six months, they (Mackay and Cleary) signed it, having first apprized Barnes that if he did not come in they would be under the necessity of making a majority award, and that he answered it must go to the Supreme Court. These witnesses say that they have no recollection of Barnes saying he could produce evidence on behalf of the plaintiff to sustain his estimate of value; that if he had produced any such evidence it would have been received.

They say the value of the ground was derived from their knowledge of other similar places, to which they had awarded $8 per foot, waterside frontage, or about twenty years' purchase of the leasehold; that in this case, considering the tenant's rent low, they allowed the highest sum that was allowed for any similar property, viz.: $9 per foot, and an additional sum of $600 for the buildings. They say Barnes desired them to re-open the award after it was signed, which they declined to do. The place is used for the Railway cars to run down one way and up the other upon rails forming what is

B

salled a Y. The rule was to send the award when made to the Colonial Secretary and Surveyor General's Office, where the parties would get their money.

It appears the money awarded has never been paid, nor tendered, nor any notification sent to the plaintiff, but the defendants say it was useless to tender, as Barnes, who acted as plaintiff's agent as well as arbitrator, would not submit to the amount awarded, and said they were going to the Supreme. Court.

It will be observed that Barnes was not called as a witness on behalf of the plaintiff, nor was a rebutter case of any kind offered at the trial.

The plaintiff's counsel contended on this case that the award was void because Barnes having withdrawn, the reference fell through. That the defendants, in any case, had no right to take this land as it was not necessary for their purposes; that the notices to plaintiff and to Barnes of the intended making up of the award were insufficient; that the arbitrators had omitted to take proper evidence, and rightly to consider the plaintiffs case; that the plaintiff had not been paid for the land.

The defendant Company, on the other hand, contended that the award was final and binding, and that this Court could not go behind it. That tender of the amount of compensation was not necessary, that if it were it had been waived by the acts of the plaintiff and her agent.

The Court reserved to both parties the points raised, and I sent the case to the jury to find a special verdict (to be afterwards entered by the Court for the plaintiff or for the defendant) upon several questions settled by the Court and submitted to them.

We held that if the jury found that the land sought to be recovered in this action had been submitted to the plaintiff as the subject of the arbitration in this case, then she was precluded and estopped from now contending that it was not required by the defendant Company for Railway purposes.

The jury found (1), that the arbitrators appointed by the Government were appointed with reference to that land; (2), that the plaintiff appointed Barnes to arbitrate upon the question of compensation for that land; (3), that the three arbitrators proceeded to act; (4), that the claim for compensation for this land was preferred, entertained and heard by the three arbitrators; (5), that the plaintiff through herself or agent was

notified of the hearing and allowed opportunities of being heard; (6), that Barnes withdrew from the reference and that the other arbitrators proceeded without him; (7) that the cause of Barnes's withdrawal was that he did not coincide in the amount of the award; (8), that the two remaining arbitrators did not refuse or omit to hear the plaintiff's case, or to receive evidence on her behalf, and were not guilty of any misconduct or corruption; (9), that the remaining arbitrators proceeded to make the award produced in evidence, and that it was made in reference to all the land, the subject of this action; (10), that the proprietor (the plaintiff) was represented by Mr. Barnes as agent as well as arbitrator; (11), that the amount awarded had not been tendered; (12), that the necessity for tender was waived by the conduct of the proprietor or her agent; and by the intimation or fair inference that it would be useless to tender, because of the insufficiency of the amount awarded and of intended litigation thereon. Upon these findings of the jury and directions of the Court, the parties to the action respectively, took their rules for entering the verdict for the plaintiff, or for the defendant Company, as the case might be, and these rules having been heard, we are now called upon to decide to whom the postea shall be delivered.

In the course of the various cases affecting rights of property under the Act of Incorporation of the defendant Company, this Court in construing the charter has held, that there are no words in the Act sufficiently certain and comprehensive to compel proprietors to cede their lands without previous compensation being made; that it is not sufficient for the Government to have given a notice of appropriation, nor even for the proprietor of land to have become party to a reference, but that all such proceedings must have been consummated by compensation to the proprietor before he shall have lost and the Company shall have acquired title to the lands required for the purposes of the Railway.

The Court has also held with regard to the right of appropriation of such lands, that "The Court is bound to keep corporations within the limits of their statutory powers, and where the sacred rights of private property are involved, any doubts should be resolved in favor of the proprietor; on the other hand, it is clearly laid down that where persons are empowered by the Legislature to take lands compulsorily for the purposes of an undertaking, they are the proper judges of what land they need, they may take as much land as they deem necessary for

the proper construction of the works they are authorized to make, and of the works incidental to the main purposes of the undertaking, provided they act bona fide; but they cannot be allowed to exercise those powers for any purpose of a collateral kind, that is for any purposes except those for which the Legislature has invested them with extraordinary powers."

In this case there is literally no evidence that the land was not required bona fide for the purposes of the Railway, but any evidence there is, is the other way. Moreover it is shewn, and the jury find that the land sought to be recovered in this action was the subject of submission to arbitration by both plaintiff and defendant, that the only difference was as to the rate per foot frontage to be awarded for it. We held at the trial as we now do that the plaintiff is estopped from now disputing the right of the Government to claim the land for the Railway Company.

The Court has intimated upon former occasions, and now holds, that the arbitration provided by the Act which is in the nature of an appraisement is, for the purposes for which it is constituted, final and binding, and that the jurisdiction of the Court is ousted as long as the proceedings of the arbitrators are conducted with substantial regularity, and are free from fraud and misconduct.

I am upon this point of opinion that except where the irregularity or misconduct has been such as to make the award wholly void, the parties are bound by it, until it is set aside; and that in an action such as the present they would (unless it be void) be precluded from disputing it. The question then is: Is the award in this case void?

It is contended on behalf of the plaintiff that under the circumstances there was a revocation of the appointment of Barnes as arbitrator, and that he withdrew from the reference, and that the submission to arbitration thereupon became annulled and vacated.

In the first place there is no evidence whatever of revocation; the evidence is, and the jury find, that Barnes withdrew because of his dissatisfaction with the amount awarded, and it is shown that so far from his considering his appointment revoked, he desired the official arbitrators to re-open the award long after they had signed it.

But I am of opinion that there is no power in a party to a reference under this Railway Act to revoke the appointment of the arbitrator, and any attempted revocation would go for

nothing There is positive provision that in case of failure by a claimant to appoint, an appointment shall be made for him, and then that in the case of disagreement the award of any two shall be final. Were it otherwise, the land clauses would be a mere nullity, and their operation might be defeated at any stage by a dissatisfied party.

There has been an attempt made to shew that the official arbitrators proceeded irregularly, and that there was an absence of due notice to Barnes of the making up of the award, and that the plaintiff was prejudiced by reason of the arbitrators not receiving or hearing evidence which might have been produced in support of a case for larger compensation.

Perhaps, unfortunately for the plaintiff, the evidence in this case produced by the defendant Company remains uncontradicted; and the jury have found on all the issues in favor of the defendants; but assuming irregularities such as those which are alleged to have taken place, the course was not to have relied upon them in the prosecution of an action, but before taking the action to have applied to a court of competent jurisdiction (a Court of Equity in this case) to have set aside the award.Russell, 634 et Seq.

The award, as it is, comes before the court in valid form, and we are, in my judgment, bound to give effect to it so long as it subsists intact.

One point of importance remains, and that is the question of tender.

Consistently with the ruling of this court in former cases, I must hold that compensation has to be made to proprietors before they can be ousted of possession and title as against them acquired by the Company.

It is admitted here that no money was paid, and none tendered, nor does any seem to have been specially provided or offered to be paid by the Government or the Company in discharge of the amount awarded to the plaintiff for compensation; but it is contended, any such course was and would have been useless; that Barnes was agent throughout for the plaintiff'; that he repudiated the sum to which the others had agreed, and declared that nothing remained but resort to the Supreme Court. The jury have found with the defendant Company upon this

issue also.

It remains for us to say, whether as a matter of law and right, we can bind the plaintiff by the conduct of Barnes in this particular.