CT. OF APP.]

only occupying as a servant: see sect. 8 of the Act. If the quarter sessions have not found that the appellants are not the real resident holders and occupiers, neither have they found that they are. The court should not now find that the appellants come within the meaning of that expression, and so destroy the finding of the quarter sessions. The licensing justices found that the appellants were not the real resident holders and occupiers, and the quarter sessions have not found that the licensing justices were wrong.

Young replied.

SMITH, L.J.-The only difficulty in this case arises from the way in which the case has been stated by the quarter sessions. Now. sect. 1 of the Beerhouse Act 1840 (3 & 4 Vict. c. 61) provides that "no licence to sell beer or cyder by retail under the said recited Acts or this Act shall be granted to any person who shall not be the real resident holder and occupier of the dwelling-house in which he shall apply to be licensed." Those words mean, in my opinion, that the applicant must be the real resident occupier and householder of the dwelling-house. Whether or not he fulfils that requirement is a question of fact in each case. In these two cases I must say that I think the justices would have been justified in finding that the applicants were not the real resident holders and occupiers of the dwelling-houses in which they applied to be licensed; that they were really nothing but managers for the brewery company. But it is not for us to draw inferences of fact when a case has been stated by quarter sessions. It is for the quarter sessions to decide the facts. The justices might well have found that the arrangement with regard to the payment of rent by Nix was a sham. In Nicholls' case the arrangement was obviously a sham one. Nix was paid 12s. a week, and had to pay back 88. The justices had power to find that she was not in fact the real resident holder and occupier. She may or may not have been the real resident holder and occupier. I agree that, as was said in R. v. Allmey (ubi sup.), the object of the statute is to licence persons who reside in the beerhouses kept by them. But in the case stated here for the opinion of the court, the justices say that upon the facts they were of opinion that Eliza Nix was not "in law" the real resident holder and occupier of the premises, and the question for the opinion of the court is whether they were right in law in so holding. In my opinion they were not right in law. The mere fact that Nix was accountable to the brewery company for the money received by her on the sale of the beer is not enough to prevent her from being the real resident holder and occupier within the section. As for Nicholls, it appears that at first he paid no rent at all, and had a salary of 25s. a week, but after the notice of opposition it was arranged that he should become a weekly tenant at a rent of 10s a week, and that at the same time his salary should be raised to 35s, a week. That was an obviously sham arrangement. Solely on account of the way in which the case has been stated, I think that we must hold that the judgment of Grantham, J. was right, and the appeal be allowed. The renewal of the licences must be granted to the two appli

cants.

66

[CT. OF APP.

WILLIAMS, L.J.-I think that by sect. 1 of the Beerhouse Act 1840 it was intended that the applicant should be, not only in form but also in substance, the resident in, and the holder of, and the occupier of, the dwelling-house where it is proposed that he should have a licence for the sale of beer. The question whether he is in substance those three things is a question of fact in each case. And I think that in the two cases now before us there was ample evidence to justify the decision of the licensing justices that the applicants were not the real resident holders and occupiers of their respective houses. The three words "resident," "holder," and "occupier ❞ are not in my opinion merely a lengthy way of saying occupier." They imply three different essentials to the qualification of the applicant for a licence, and the applicant must show that in substance and in fact he has those three qualifications. The words have different meanings. It is quite possible for a man to be a real resident in a house without being at the same time the holder or occupier of it within the meaning of the section. The licensing justices found that Nix and Nicholls were not the real resident holders and occupiers. The quarter sessions did not reverse this finding, but affirmed it, though not as a conclusion of fact. The ground of their decision was that the fact of Nix being a servant of the brewery company and accountable to them for the profits derived from the sale of beer at the premises in question prevented her, as a matter of law, from being the real resident holder and occupier of the premises. In my judgment the quarter sessions were wrong in coming to that conclusion. The mere fact of her being a servant of the company and accountable to them for the profits of the business does not necessarily prevent her from being in substance and in fact the real resident holder and occupier of the premises. Under these circumstances our answer to the question put forward by the quarter sessions for the opinion of the court must be: "No; it is not true to say as a matter of law that the accountability of Nix to the company as their servant prevented her from being the real resident holder and occupier." I agree that the renewals should be granted to the two applicants.

Appeal allowed. Solicitors for the appellants, Osbaldeston and Co,, for Green and Williams, Nottingham. Solicitors for the respondents, T. B. and W. Nelson, for W. T. Cartwright, Nottingham.

Tuesday, July 4, 1899.

(Before LINDLEY, M.R., Sir FRANCIS JEUNE, and ROMER, L.J.)

TWICKENHAM URBAN DISTRICT COUNCIL v.
MUNTON. (a)

APPEAL FROM THE CHANCERY DIVISION.

Local government-Urban authority-Approval of plans-Amendment to resolution and plans by justices without fresh notices to owners-Jurisdiction of justices-Construction-Private Street Works Act 1892 (55 & 56 Vict. c. 57), ss. 6, 7, 8, 11, 12, 13.

(a) Reported by E. A. SCRATCHLEY, Esq., Barrister-at-Law.

CT. OF APP.]

Sect. 8 of the Private Street Works Act 1892 confers upon a court of summary jurisdiction, at the hearing of objections made by owners of premises shown in a provisional apportionment as liable to be charged with the expenses for executing works under the Act, jurisdiction to amend the resolution, plans, sections, estimates, and provisional apportionments approved by an urban authority just as if the same had been duly passed ab initio by the urban authority; and fresh notices to such owners as may be affected by such amendment need not be served unless the justices, in their absolute discretion, consider it expedient.

Decision of Stirling, J. affirmed.

A SUMMONS was taken out by the plaintiffs, the urban district council of Twickenham, asking for a declaration that the plaintiffs were entitled, under sect. 13 of the Private Street Works Act 1892, to a charge on certain houses and lands belonging to the defendants, and situate in Montpelier-road, Twickenham, for 271. 10s. and 281. 9s. 6d., the apportioned amounts of expenses incurred by the plaintiffs in executing private street works under sect. 6 of the above-mentioned Act, together with interest, and for consequential relief.

The Private Street Works Act 1892 was duly adopted for the district of Twickenham, and came into operation on the 22nd Feb. 1893.

On the 27th June 1895, the plaintiffs resolved, with respect to Montpelier-road, to do the various street works authorised by sect. 6 of the Act, with the exception of lighting; and on the 25th July 1895 they passed the following resolution:

That the specifications, plans, sections, estimates, and provisional apportionment prepared by the council's surveyor with reference to the making up of Montpelierroad, Twickenham, be and they are hereby approved.

The specifications, plans, &c., mentioned in the resolution related to the whole of Montpelierroad.

The resolution was duly published, and copies thereof served, pursuant to sect. 6, sub-sect. 3, of the Act, on the defendants and other owners of property thereby affected.

The defendants gave no notice of any objection, but another owner gave notice of objection on his own behalf that a part of Montpelier road was a street repairable by the inhabitants at large.

On the 1st Jan. 1896 the objection was heard in a court of summary jurisdiction, and it was held by the justices presiding thereat that a part of Montpelier-road was a street repairable by the inhabitants at large, but that the remaining part was a private street within the meaning of the Act.

The justices thereupon amended the plans, estimates, and apportionment, so as to limit the operation thereof to the latter portion of Montpelier-road.

The justices, however, did not direct any fresh notices to be served, and no further notices were in fact served either on the d-fendants or any other persons affected by the scheme showing the alteration in the works proposed t be carried out.

On the 24th Oct 1896 the council's surveyor made his final apportion sent by dividing the expenses in the same proportions in which the estimated expenses were divided in the amended provisional apportionment.

[CT. OF APP.

On the 19th Dec. 1896 notices of the final apportionment were served on the several owners of the premises thereby affected, including the defendants.

The defendants gave no notice of objection to the final apportionment.

The defendants were willing to pay the sums mentioned in the summons provided that the whole of Montpelier-road was repaired; but they objected to the repair of the portion to which the scheme of the plaintiffs had been limited by the justices as being detrimental to them so long as the rest of the road remained unrepaired.

The summons was adjourned into court, and came on to be heard before Stirling, J. on the 10th Nov. 1898, when his Lordship reserved judgment. On the 10th Dec. 1898 the learned judge decided (ante, p. 73; 79 L. T. Rep. 544) that the effect of sect. 8 was to permit the resolution and plans as amended to stand just as if they had been duly passed ab initio by the urban authority; and that, inasmuch as the justices had not directed further notices to be served, the court would not determine the question whether, in not directing further notices, their discretion was properly exercised.

From that decision the defendants now appealed.

R. Cunningham Glen, for the appellants.-In limiting the works to a part of the street the justices have exceeded their jurisdiction, for they have purported to discharge the function of the urban authority, in whom sect. 6, sub-sect. 1, of the Private Streets Act 1892 vests the right to decide whether the whole or part only of a street shall be repaired. In accordance with that section the plaintiffs have resolved to make up the whole of the street, and their resolution still stands. It being left entirely to the discretion of the urban authority to determine whether the whole or a part of the street is to be made up, the justices have in effect exercised the discretion reposed in the plaintiffs. Where an urban authority have resolved to make up the whole of a street, it is not open to the justices to direct it to be done in sections. The resolution has not been in fact amended by the justices, though they have amended the plans. The original resolution to make up the street must be adhered to throughout until a resolution has been passed by the plaintiffs to make up a part of the street only. The defendants are debarred by the conduct of the proceedings from the opportunity of exercising their right to object under sects 7 and 8 of the statute. Further, the power given by the statute to amend the resolution, plans, sections, estimates, and provisional apportionments is a power to amend as between the persons before the court. Unless, therefore, all the persons whose int rests are affected are before the court, and have been allowed an opportunity of objecting, no amendmen can be legally made. It is manifest that the scheme of the Act implies that notices shall be given to the persons whose premises are chargeable where amendments are proposed affecting their interests. Fresh notices of the amended resolution, plans, &c., should have been served on the persons affected by the scheme. If anything is done to alter the original resolution, plans, &c, the urban authority must commence proceedings de novo. I submit that the present summons is premature and misconceived because

CT. OF APP.]

all the steps required by the statute to create a charge have not been taken. Having regard to what has taken place, the final apportionment must be treated as a nullity:

Whitchurch v. Board of Works for the Fulham District, 13 L. T. Rep. 631; L. Rep. 1 Q. B. 233. As to the interpretation to be placed on the section, see

[CT. OF APP.

That case was approved in

Hopkins v. Smethwick District Local Board of Health, 62 L. T. Rep. 783; 24 Q. B. Div. 712. [LINDLEY, M.R.-Can you refer us to any authority which throws light upon the phrase "the court may also, if it thinks fit, adjourn the hearing"?] I know of none; but I submit that the principle is equally applicable here which was established by

Julius v. Bishop of Oxford, 42 L. T. Rep. 546; 5 App. Cas. 214.

Macmorran, Q.C., and the Hon. Frank Russell, for the respondents, were not called upon to argue.

LINDLEY, M.R.-I am quite unable to take the view which is urged upon us by the counsel for the appellants, although I cannot help thinking that it would have been much better if the justices had considered fit to adjourn the matter in order to give notice to people who might be affected by the alteration which they were making. The real question, however, is as to the jurisdiction of the justices, not whether they acted irregularly, or whether it would have been better if they had acted otherwise than they did. I feel very great difficulty in getting over the language of the Act, which I will read presently. The question turns on the true construction of sect. 8. I do not propose to go through the other sections, although, of course, it is important to bear them in mind in order to understand what the machinery is. I entirely agree with Stirling, J. in the construction which he put upon the language of that part of sect. 8, which says, "the court"-that is the justices-"may quash in whole or in part, or may amend the resolution, plans, sections, estimates, and provisional apportionments, or any of them, on the application either of any objector or of the urban authority." In this particular case a resolution had been passed to make up the whole road. The present appellants, the defendants, approved of that, and of course therefore to that they did not object. That is exactly what they intended, but somebody else did not like it, and sent in an objection. Thereupon the case came before the justices and the justices amended, not the resolution in terms, but in effect the operative document, in such a way as to alter the scheme from that of making up the whole road into a scheme for making up that portion of the road which was a private road, leaving the other portion unmade up. That was done by the justices under the power which I have just read, and I have not the slightest doubt myself, and I do not think the language admits of any doubt, that they had ample power to do that There were present before them the urban district authority on the one side and the objector on the other, and they had ample power to quash in

difficulty. It appears to me that the language, "the court may also, if it thinks fit," do what I have just read, gives them a discretion; that is to say, it puts them in this position: they have to consider what sort of order they are going to make, and the practical operation of it on the people in the neighbourhood, and if they think that the occasion is one in which they ought to adjourn and give persons notice to object, and so on, then of course they ought to do it. But if they, on looking into the matter, think it is a small matter and one which does not require delay for further objection, then it appears to me that they are the judges of whether an adjournment shall take place or whether further notice shall be given. To construe the Act differently would be to deprive the justices, as it appears to me, of the power of deciding such a matter as this. It would come to this, that if they were to make any alteration, except a mere clerical alteration, inasmuch as it might affect other people they must adjourn the hearing, and direct further notices to be given. That is not what the Act says. I think that the Act has reposed in the court that is, the justices-the power to say whether the amendment they make or the order they make is of such a character that justice requires that further notice should be given. I regret here that they did not take the opposite view. I cannot help thinking that it is to be regretted; but we are asked to say that what they did rendered their order invalid, and that they had no jurisdiction to do what they did. I cannot go so far as that, and that disposes of this appeal. It will therefore be dismissed with costs in the usual way.

Sir FRANCIS JEUNE.-I agree with the judgment that has been given; but I confess that my sympathies are entirely with the appellants. It seems to me, on the argument presented on this summons, that this may be said-and with considerable force and, at any rate, with great plausibility-that although it is quite true the court under the direction of the Act may quash part of the resolution, and so on, that is subject to the general provision that the court cannot properly act without hearing those who may object, and, if they so act, then their decision is ultra vires and void. Then it may be said that the subsequent words of sect. 8 were not intended to cut that obligation down, but rather to give means by which it should be carried out, and therefore the court is unable to dispense with the notices which would enable them to hear further objections. I think that that is a plausible argument; but I am bound to say, in my judgment, that I cannot give effect to it without putting on the Act a construction which I think it will not bear. I believe the intention of the Act was this, that, inasmuch as the court was intending to alter these provisional apportionments and so on, there might be cases in which other persons not before the

CT. OF APP.]

court would be affected and there might be cases in which they would not, and it would be impossible for anybody without having all the facts before him to say whether there would be such a case or not; and the Act intended that that matter should be left to the justices. It is necessary that somebody should decide such a matter, and it may well be that that Act of Parliament intended to give that discretion to the justices, and in truth they were the best persons to consider it. Therefore the whole scope of the Act appears to me to be not to cut down the obligation in a proper case, but to confer on the justices the power of saying whether or not anybody else ought to be heard. In this case I must take it that the justices, having the matter before them, thought that there was no obligation to give any such notice. There was no duty on them to give hearing to anybody else. I think, as the Master of the Rolls says, it is a great pity that they did not give the appellants the opportunity of saying all they had to say about the matter; but they came to a conclusion, and under the circumstances it appears to me that they only exercised the discretion which the Act, rightly or wrongly, plainly contemplates they should. Under these circumstances Stirling, J. is right, and for the reasons he has given.

ROMER, L.J.-I agree in thinking that the decision of my brother Stirling is quite correct in this case, and I do not desire to add anything to what he has said. Appeal dismissed.

Solicitors for the appellants, Munton and Morris.

Solicitors for the respondents, Ruston, Clark, and Ruston.

Wednesday, July 5, 1899.

(Before LINDLEY, M.R. and ROMER, L.J.) SHAW v. HERTFORDSHIRE COUNTY COUNCIL. (a) APPEAL FROM THE QUEEN'S BENCH DIVISION. Costs-Action against public authorities-Order by consent dismissing action with costs-Costs as between solicitor and client-Public Authorities Protection Act 1893 (56 & 57 Vict. c. 61), s. 1 (b).

The plaintiff brought an action against a county council in respect of certain acts done by them in exercise of their statutory powers. An order

was afterwards made in chambers by consent that the action should be dismissed and that the plaintiff do pay to the defendants their costs of this action to be taxed."

66

Held, that the consent order was a "judgment" within sect. 1 sub-sect. (b) of the Public Authorities Protection Act 1893, and that the defendants were entitled to costs as between solicitor and client.

THIS was an appeal against a decision of Channell, J., the question being whether the defendant county council were entitled to the costs of this action as between solicitor and client in accordance with the provisions of sect. 1 (b) of the Public Authorities Protection Act 1893, or only to party and party costs.

The action was brought by a Mrs. Shaw, the (a) Reported by W. C. BISS, Esq., Barrister-at Law.

[CT. OF APP.

owner of some houses at Elstree fronting on a road called Shenley-road.

The county council, purporting to act under the powers conferred on them by sect. 26 of the Local Government Act 1894 (56 & 57 Vict. c. 73), s. 26, sub-s. 4, removed some fences, trees, and other obstructions which the plaintiff or her predecessors had placed upon what was alleged to be land forming part of the highway.

The plaintiff alleged that the defendants had acted wrongfully in so doing, and commenced this action in the Queen's Bench Division claiming 5001. damages and an injunction restraining the defendants from trespassing upon her land.

The county council alleged that the land in question formed part of the highway upon which the plaintiff or her predecessors had encroached.

Another action was brought in the Chancery Division by the Attorney-General, at the relation of the county council, against Mrs. Shaw, claiming a declaration that the land was part of the public highway; an injunction directing Mrs. Shaw to abate the whole of the encroachment and to remove the whole of the fencing from the land; and an injunction restraining the defendant, her servants, &c., from in any manner encroaching upon or inclosing any part of the highway, and in particular from in any manner encroaching upon or inclosing that part of the highway.

Before the action in the Queen's Bench Division came on for trial the plaintiff was advised that she could not maintain her claim, and an agreement was come to between her and the county council to the effect that the highway should be defined by a line which did not include so much as the county council had originally claimed as being part of the highway, but which did include land which the plaintiff had claimed as her property, and that the plaintiff should pay the costs of both actions.

An order was made by consent in the action in the Queen's Bench Division in chambers that the action should be dismissed, and that "the plaintiff do pay to the defendants their costs of this action to be taxed." By consent also an order to the same effect was made by Romer, J. in the action in the Chancery Division.

The county council contended that by virtue of sect. 1 (b) of the Public Authorities Protection Act 1893, under the consent order in the action in the Queen's Bench Division the plaintiff must pay their costs as between solicitor and client.

The plaintiff contended that she was only liable to pay party and party costs.

The master was of opinion that the consent order was not a "judgment" within the meaning of the section, and that the section did not apply to it, and the plaintiff was only liable for party and party costs.

Channell, J., in chambers, affirmed the decision, on the ground that the intention of the parties to the agreement was that only party and party costs should be paid, and the county council appealed.

The Public Authorities Protection Act 1893, s. 1, provides that

Where after the commencement of this Act any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance, or execution, or intended execution

of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority, the following provisions shall have effect: (b) Wherever in any such action a judgment is obtained by the defendant, it shall carry costs to be taxed as between solicitor and client.

د"

Danckwerts for the appellants. In the order "costs means such costs as the county council are entitled to by law, and they have a statutory right to costs as between solicitor and client under the Public Authorities Protection Act 1893, sect. 1 (b). There is no agreement between the parties by which the right is excluded:

Re South American and Mexican Company; Ex
parte Bank of England, 71 L. T. Rep. 594;
(1895) 1 Ch. 37;

North Metropolitan Tramways Company v. London
County Council, 78 L. T. Rep. 711; (1898) 2
Ch. 145;

Fielding v. Morley Corporation, 79 L. T. Rep. 231;
(1899) 1 Ch. 1.

A. G. McIntyre for the plaintiff.-Channell, J. was of opinion that there was an agreement that party and party costs only should be paid, and therefore this question did not arise. This is not a "judgment" within the section; it is only an order. A "judgment" means a judgment pronounced in an action which bas been tried in the usual way in open court, and does not apply to an order made by consent in chambers. This is not a judgment either in form or in fact:

Onslow v. Commissioners of Inland Revenue, 63
L. T. Rep. 513; 25 Q. B. Div. 465.

LINDLEY, M.R.-We have consulted our colleagues in the other court, and they agree that this order is a "final judgment." The case is within the Public Authorities Protection Act 1893, and in a case to which sect. 1 (b) applies it makes it imperative that the defendants shall have costs as between solicitor and client, unless it is otherwise agreed between the parties. This Act is perhaps not well known, and very likely the plaintiff's solicitor did not recollect the Act, and intended to consent only to costs as between party and party, but there is no agreement that the costs shall be thus limited. The appeal succeeds, but the appellants will have the costs of the appeal as between party and party only.

Solicitors Mason and Co., agents for C. E. Longmore, Hertford; Paterson, Sons, and Candler.

Thursday, July 6, 1899.

(Before LINDLEY, M.R., SMITH and
ROMER, L.JJ.)

PRESCOTT v. LEE. (a)
APPEAL FROM THE QUEEN'S BENCH DIVISION.
Parliament-Borough vote-Notice of objection-
Objector's place of abode-Mistake-Amendment
Parliamentary and Municipal Registration
Act 1878 (41 & 42 Vict. c. 26), s. 28, sub-s. 2-
Registration Order 1895.

An objection was made to the retention of a person's name on the occupiers' list of voters in a borough. In the notice of objection served on such person the objector did not give his place of abode, but gave instead, as his address, his

(a) Reported by E. MANLEY SM TH, Esq.. Barrister-at-Law.

[CT. OF APP.

No

qualifying property within the borough. one was in any way misled by this mis-statement.

Held, affirming the judgment of the Queen's Bench Division, reported ante, p. 24; 79 L. T. Rep. 447; (1899) 1 Q. B. 102, that the mistake was one which the revising barrister had power to amend under sect. 28 of the Parliamentary and Municipal Registration Act 1878.

THIS was an appeal from the judgment of the Queen's Bench Division (Lord Russell, C.J. and Lawrance, J., Wills, J. dissenting) upon a case stated by the revising barrister for the Parlia mentary borough of the Strand.

At a court held for the revision of the list of voters for the Parliamentary borough of the Strand, Francis C. Hunt objected to the name of Thomas Prescott being retained on Division I. of the general occupiers' list of voters for the parish of St. Martin-in-the-Fields in the borough.

The notice of objection was good in substance and was duly served, and was correct in form, except that the place of abode of the objector was incorrectly given.

The objection was signed "Francis C. Hunt, of 106, Drury-lane." The objector's true place of abode was 50, Nelson-road, Wimbledon, and not 106, Drury-lane.

The address 106, Drury-lane was inserted by a mistake on the part of the objector, who thought that he ought to give his address within the borough and not an address outside the borough.

The address 106, Drury-lane was the objector's qualifying property in the borough, and was a shop in which he could be found the greater part of every week day.

The objector's place of abode was stated in the second column of the overseers' list as 50, Nelsonroad, Wimbledon. Neither Thomas Prescott. nor any one else, was affected in any way by the incorrect statement of the objector's place of abode.

The revising barrister amended the notice of objection by adding the words, "and of 50, Nelson-road, Wimbledon," and he struck out the name of Thomas Prescott from the list subject to a case for the opinion of the court.

The Queen's Bench Division (Lord Russell, C.J. and Lawrance, J., Wills, J. dissenting) held that the mistake was one which the revising barrister had power to amend.

The case is reported ante, p. 24; 79 L. T. Rep. 447; (1899) 1 Q. B. 102.

The appellant appealed.

By the Parliamentary and Municipal Registration Act 1878 (41 & 42 Vict. c. 26) it is provided: Sect. 28. A revising barrister shall, with respect to the lists of voters for a Parliamentary borough have the powers following: (2) He may correct any mistake which is proved to him to have been made in any claim or notice of objection.

By the Registration Order 1895, made under powers conferred by the County Electors Act 1888 and the Local Government Act 1888, a form is provided for a notice of objection in respect of the occupation franchise to be given to the person objected to. This form ends thus: