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CT. OF APP.]
GREENWELL AND ANOTHER v. HOWELL AND ANOTHER.
in which the right of the public to use this road was tested has been an action of trespass by the landowner. It is of no concern to the plaintiffs that the county council were backing up the defendants. If the order of Bruce, J. is upheld, a county council will be able in such cases as the present to authorise a pauper to do what the defendants did here. In such a case if the pauper were to succeed he would get solicitor and client costs, but if the landowner were to succeed he would probably be unable to get any costs out of the defendant, nor could he get costs out of the county council, who would avoid responsibility by not being a party to the action. If subsect. (b) of sect. 1 of the Public Authorities Protection Act 1893 applies to the present_case, why should not sub-sect. (a) also apply? But it cannot have been intended by the Legislature that in such a case as the present no action of trespass shall be brought after the expiration of six months from the act complained of merely because the act alleged to be a trespass was authorised by a public authority. The " ceedings" which it is the duty of a district council to take under sect. 26, sub-sects. 3 and 4, mean "legal proceedings" and do not include sending a servant to commit a trespass.
Jelf, Q.C. and George Humphreys for the defendants. The order of Bruce, J. was justified under the Public Authorities Protection Act 1893. That Act is a consolidation Act, and many of the repealed Acts mentioned in the schedule expressly protect not only public bodies, but also their servants when acting in obedience to the orders of the public body. The Act of 1893 was not intended to cut down the provisions of those Acts. The intent of the Legislature is that any person authorised to do a thing by a public authority acting in pursuance of its duties is to have the benefit of the statute. It is enough if the defendants honestly believed that they were properly authorised by the county council to do what they did:
Chambers v. Reid, 13 L. T. Rep. 703.
The language of the section is very wide; it applies to actions brought against any "person," not simply against any "public authority," for any act done in pursuance or intended execution of any public duty or authority. Here it was the duty of the county council under the Local Government Act 1894 to do something to preserve the public rights. Being a corporate body they had to act by means of an agent. If the plaintiffs had kept a physical obstruction across the road the county council could not have removed it except by means of authorised agents. In the present case the physical obstruction had been removed by the plaintiffs themselves, and instead of it they had put a moral obstruction, a threat to take proceedings against anyone claiming a right to use the road. [They were stopped.]
Neville, Q.C. in reply.
SMITH, L.J.-This is an appeal from an order made by my brother Bruce, after giving judgment in the action, in which he decided that the defendants were entitled to have their costs taxed as between solicitor and client under sect. 1 of the Public Authorities Protection Act 1893. The way in which the question arose is as follows:
[CT. OF APP.
The two plaintiffs are owners of an estate in Surrey, across which was said to be a public right of way. For a long time there had been great disputes as to whether this public right of way existed or not, and prosecutions had been threatened by the plaintiffs. At last, in order that the disputes might be terminated, it was proposed that to raise the question properly the county council should send someone to drive along the alleged right of way, and that the plaintiffs should bring an action of trespass against him. The county council accordingly sent the two defendants, the county surveyor and the deputy clerk of the council, on a certain day to drive along the road for the purpose of raising the question. If it has anything to do with the question, I may add that it was done with the knowledge of the plaintiffs. That is the trespass that is complained of in the present action. At the trial of the action without a jury my brother Bruce held that the action was unfounded, and he gave judgment for the defendants with costs. Thereupon the defen lants asked for and obtained an order that, by virt ie of toe Public Autnorities Protection Act 1893, ney were entitled to have these costs taxed as between solicitor and client. The question is, whether the defendants are within sect. 1 of the Act. That section provides that where any action, prosecution, or other proceeding is commenced in the United Kingdom against any person," not against "any public authority," 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, certain provisions shall have effect. The first of these provisions is that the action or proceeding shall not lie or be instituted unless it is commenced within six months next after the act or default complained of. In my opinion, if the present action had been commenced more than six months after the alleged trespass, the defendants would have certainly been entitled to raise that point as a defence under this Act. Then I come to the second provision that, wherever in any such action a judgment is obtained by the defendant, it shall carry costs to be taxed as between solicitor and client. Now, were these defendants acting in pursuance or execution, or intended execution, of any Act of Parliament, or of any public duty or authority? It is absolutely clear that in taking this drive for the express purpose of raising the question as to the existence of a public right of way, they were acting under the direct orders of the county council. It is all very well to say that the county council might have raised the question in some other way. The question is, whether the defendants did not act in the way they did under the express orders and authority of the county council, and the evidence is all one way that they did. Then was what they did done in pursuance or execution, or intended execution, of any Act of Parliament? That brings me to the Local Government Act 1894. Sect. 26 enacts that it is the duty of every district council to protect public rights of way, and prevent as far as possible the stopping or obstruction of any such right of way. I think that provision is applicable to a case where a person tries by threats of legal proceedings to prevent the public from using a public right of way as well as to a
CT. OF APP.]
HICKMAN v. MAISEY AND ANOTHER.
case where a physical obstruction is put across the way. Then under sub-sect. 3 it is in the power of the district council, for the purpose of carrying the section into effect, to institute or defend" any legal proceedings. Acting under another part of the section, the county council in the present case had undertaken the duties of the district council. I think that the case comes within sect. 1 of the Public Authorities Protection Act 1893, and that the appeal must be dismissed with costs. Something was said as to the Act being pleaded, but the point before us could not have been raised by way of plea.
COLLINS, L.J.-I am of the same opinion. I did not at first realise that the protection afforded by the Public Authorities Protection Act 1893 extended not only to the principal persons but also to the individual subordinates acting under the authority of such persons; but I am clearly of opinion now that sect. 1 gives protection to persons who carry out the mandates of public authorities just as much as to the authorities themselves. Then the only question is, was the act done by the defendants done for the purpose of protecting public rights of way within the meaning of sect. 26 of the Local Government Act 1894? It is clear from the evidence that this was So. In truth the whole matter could not have been put better than it was put by Bruce, J.
ROMER, L.J.-I agree, and have nothing to add. Appeal dismissed.
Solicitor for the plaintiffs, Norton, Rose, Norton, and Co.
Solicitors for the defendants, Wyatt and Co.
Tuesday, March 13, 1900.
(Before SMITH, COLLINS, and ROMER, L.JJ.) HICKMAN v. MAISEY AND ANOTHER. (a) Highway-Rights of public-Ordinary and reasonable user-Passing and repassing-User of highway for purposes of business.
The plaintiff was possessed of a piece of land through which ran a public highway. Over portion of this land, on each side of the highway, the plaintiff had granted to R. a licence to exercise horses. The defendants owned a newspaper, in which they published the doings of racehorses. They entered upon the highway, walking up and down for a considerable time within a short space to observe the doings of R.'s horses. There was evidence that such an user of the highway depreciated the adjoining land both to the plaintiff and his licensee. The defendants_justified their acts as being an ordinary and reasonable user of the highway by members of the public.
Held (affirming the judgment of Day, J.), that such user was unlawful and that the defendants were trespassers.
Harrison v. Duke of Rutland (68 L. T. Rep. 35; (1893) 1 Q. B. 142) followed.
THIS was an appeal by way of motion for a new trial from the judgment entered for the plaintiff in an action tried before Day, J. and a special jury at Devizes.
The plaintiff was the owner in possession of a (a) Reported by J. H. WILLIAMS, Esq., Barrister-at-Law. MAG, CAS.-VOL. XIX.
[CT. OF APP.
piece of land on Wiltshire Downs, including the soil of a public highway crossing the same. Over this piece of land, on either side of the highway, the plaintiff had granted to one Robinson, an owner of stables and trainer of horses, a licence to exercise and train racehorses.
The defendants were described as "racing touts" and "tipsters." They owned a paper in which they published the doings of racehorses at race meetings and any other interesting information which they could gather with regard to them.
In order to gain information with regard to Robinson's horses, they made a constant practice of entering upon the highway mentioned above, walking up and down thereon for the space of an hour and a half within a distance of fifteen yards, each carrying a pair of field glasses and a notebook, and of observing the doings of the horses and making notes thereon. The plaintiff gave notice to the defendants to discontinue this practice, but they refused to comply, justifying their acts by their alleged right as members of the public to pass and repass along the highway, and asserting a right to continue the practice.
The plaintiff then brought two actions for trespass, one against each defendant, claiming damages and an injunction to restrain a repetition of these acts. The two cases were tried together. There was evidence that the acts of the defendants depreciated the value of the land both to the plaintiff and to his licensee.
Day, J., in the course of summing up to the jury, said: "The simple question you have to determine is whether this is a usual ordinary user for the purpose of passing and repassing. The question has been put whether a wayfarer may look at a fine sunset. Of course, you can do that. You must keep in the public track, and then you may look on one side or the other. If there is a chance of seeing a fine sunset you would look at it, or may even delay your progress. You are not obliged to walk four or five miles an hour. You would walk in the way people ordinarily and usually walk. All you have to say is whether the plaintiff has a right to complain that his property which was dedicated to wayfarers is not used by wayfarers. People are entitled to use it as wayfarers, and for no other of purpose any sort or kind. You must say whether coming there and watching and standing about for an hour and a half is using it as a wayfarer, or for the purpose for which it was dedicated. It was dedicated to the public for the purpose of using it as a way, and it is not a legitimate purpose to use it in any other shape or way. You are to use your judgment upon the question and say whether this highway was used by the defendants legitimately as wayfarers. If they only use it as wayfarers you will find a verdict for them. If, on the other hand, you find that they have exceeded the use of the road as a way for wayfarers, and have used it for the purpose of carrying on their business as racing touts, the verdict must go for the plaintiff. Use your own judgment upon the matter and give me your verdict."
The jury found a verdict for the plaintiff, who only asked for nominal damages.
Judgment was accordingly entered for 1s. damages, and the learned judge granted an injunction restraining the defendants from repeating the acts complained of. The defendants appealed.
CT. OF APP.]
HICKMAN v. MAISEY AND ANOTHER.
Duke, Q.C. and J. W. McCarthy (T. H. Parr with them) for the appellants. The learned judge misdirected the jury in telling them that if the defendants entered upon the highway with the object not of passing and repassing, but of exercising their business, they were trespassers. If that were the test a carrier or a hawker would be a trespasser. The public have a right to be upon the highway passing and repassing. In Dovaston v. Payne (2 H. Bl. 527) the pleading demurred to left it open whether the cattle were or were not passing and repassing, and that question is taken to be the crucial test. See also
Reg. v. Pratt, 4 E. & B 860;
Rangeley v. Midland Railway Company, 18 L. T.
The right of passage includes the right of doing anything reasonably incidental thereto (Harrison v. Duke of Rutland, 68 L. T. Rep. 35; (1893) 1 Q. B. 142), such as admiring the view, or looking at the horses of an adjoining owner or his licensee. The motive of a person exercising this right is immaterial. In order to make a person using a highway a trespasser there must be an act of trespass subsequent to his entry upon the highway:
Shorland v. Govett, 5 B. & C. 485.
The proper question to be left to the jury is whether, being upon the highway, the defendants did some act to the soil of the highway contrary to the rights of ownership of the plaintiff. [COLLINS, L.J.-If they stay upon the highway longer than necessary for the bona fide exercise of the right of passage may not that constitute a trespass making them trespassers ab initio? If so, the question might be, did they enter on the highway originally with the intent of passing and repassing, or for purposes reasonably incidental thereto, or with another intent: Six Carpenters case, 8 Rep. 146a; 1 Smith's Leading Cases, 127.] It has never been suggested that an obstruction to a highway involves a right of action in the owner of the soil. Mere passing and repassing is not the limit of the right of the public:
Harrison v. Duke of Rutland (ubi sup.). Further, that case is distinguishable from this, for there was there a malicious interference with the profits of the defendant's land. [ROMER, L.J. -There was no property in the grouse in Reg. v. Pratt (ubi sup.). The gist of that case and of Harrison v. Duke of Rutland (ubi sup.) must be the wrongful user of the land of the owner.] If the soil of the highway were not vested in the plaintiff he could not complain that the doings of horses on his land were observed from the land of another. His remedy is to erect a hoarding. He has the same remedy in his hands if he wishes to keep his adjoining land private from those who lawfully use a highway the soil of which is in him.
Foote, Q.C. and Radcliffe for the respondent were not called upon.
SMITH, L.J.-This action was brought by the plaintiff, the occupier of a piece of land on Wiltshire Downs, used by his licensee for the purpose of training horses. Through this piece of land runs a public highway, the soil of which is admittedly in possession of the plaintiff. The defendants are by occupation racing touts. They had for a considerable period of time, in spite of notice
[CT. OF APP.
given to the contrary, been in the habit of using this highway for the purposes of their occupation -that is, for watching the private trials of horses on the downs. Having procured information about the horses in this way they published it in a newspaper, thereby depreciating the land both for the plaintiff and the trainer. The defendants insist that this is a lawful user of the highway, and therefore the plaintiff brings this action alleging that the defendants broke and entered his close. The defendants admit that they were there upon the land, but justify the alleged trespass on the ground that the locus in quo is a highway, and that they were using it as such. The question therefore is, were the defendants, when doing the acts complained of, using the highway as a highway for the purpose for which it was dedicated-that is, for the purpose of passing and repassing? Unless the defendants show that their user of the highway was lawful, they must fail in the action. What they did was this: They walked backwards and forwards within a distance of fifteen yards along the highway, notebooks in hand, observing with field-glasses the trials of the horses. It is said that this is using the highway for the purpose of passing and repassing, and that the defendants in doing what they did committed no act of trespass. Now, the use for which a highway is dedicated to the public is prima facie that the public may pass and repass along it Dovaston v. Payne-subject, I agree, to what fell from the late Master of the Rolls in Harrison v. Duke of Rutland, which somewhat extended the older law. Highways are no doubt.". said the Master of the Rolls, "dedicated primâ facie for the purpose of passage; but things are done upon them by everybody which are recognised as being rightly done, and as constituting a reasonable and usual mode of using a bighway as such. If a person on a highway does not transgress such reasonable and usual mode of using it, I do not think that he will be a trespasser." follows that, if he does transgress such reasonable and usual mode of using it, he will be a trespasser. I think the law has been most reasonably extended to that point. Many cases may be put, some within and some without the scope of this reason. able and ordinary user; but of the continued acts of these two touts using the highway not as a highway but as a means of carrying on their occupation to the detriment of the owner of the soil, to say that they constitute an ordinary and reasonable user is absurd. I think the case of Harrison v. Duke of Rutland covers this case, and is indistinguishable from it. It is said that there was a misdirection by the learned judge. I do not agree. In my opinion, the summing up of my brother Day was quite sufficient. I add that I do not assent to the argument of counsel for the appellants, that the purpose for which they entered upon the highway is not to be taken into account. In truth it is all important. The purpose for which the defendants came touting, and their acts were detrimental to the plaintiff's property. This appeal must be dismissed.
COLLINS, L.J.-I am of the same opinion. It is not easy to give an exact direction where to draw the line between user of a highway as a highway and user beyond the rights conferred by dedication. But, as often happens, it is not difficult to put cases well on one side or the other
CT. OF APP.]
KNOWLES AND SON LIMITED v. BOLTON CORPORATION.
of the line. The user proved in this case is well outside the line which limits the reasonable and legitimate user of the highway as a highway. It is contended for the appellants that when a person enters under colour of a public right, if his entry in exercise of that right is questioned, some trespass must be found enabling the court to form the opinion that the original entry was a trespass. Accepting that standard, there is evidence of a trespass here, for the question in the last resort is whether what was done was a reasonable user of the highway as a highway. Primarily a highway is dedicated for the purpose of passing and repassing, but in modern times a legitimate extension has been given to the meaning of the words, always keeping in view that anything substantially beyond user for the purposes of passage is a trespass. Cattle passing along a highway and grazing as they go might possibly not be trespassing. I only give this as an instance of the principle that the right of passing and repassing is open to all legitimate extensions by which from time to time, as the ideas of people in crowded districts become modified, the user by the public of highways may become enlarged in a way not in conflict with the paramount object of passing and repassing. That is what is meant by Lord Esher, M.R. when he says, in Harrison v. Duke of Rutland, commenting on the language of Erle, J. and Crompton, J. in Reg. v. Pratt, "Construed too strictly it might imply that the public could do absolutely nothing but pass or repass on the highway, and that to do anything else whatever upon it would be a trespass. I do not think that is so. Highways are no doubt dedicated primâ facie for the purpose of passage; but things are done upon them by everybody which are recognised as being rightly done, and as constituting a reasonable and usual mode of using a highway as such. If a person on a highway does not transgress such reasonable and usual mode of using it, I do not think that he will be a trespasser.' It is argued that we cannot inquire into the motive with which the defendants entered. If they are there, and the locus in quo is a public high. way, it is said that that is enough to justify them. Such an argument is in conflict with all the old authorities. According to Lord Coke in the Six Carpenters case, when a person is abusing an entry, authority, or licence given by law, the test by which it is ascertained whether he is or is not a trespasser ab initio is " quo animo, or to what intent, he entered." Mr. Duke contended that there was no trespass here, and cited the case of Shorland v. Govett. But that case does not support his contention. The point in that case was argued on a demurrer to a replication. action was for trespass; the defendant justified his entry under a writ of fieri facias; the plaintiff replied that the defendant had demanded and received 31. 10s. more than he was entitled to. It was held that the demand and acceptance of more than was due did not constitute a trespass. But Holroyd, J. says: "This replication does not show that the defendant held the goods longer than he was entitled so to do"; implying that if the pleading had contained such an allegation it would not have been demurrable. In the case before us there is an illegitimate user of the highway for purposes disconnected with the right of passing and repassing. We may therefore look
[CT. OF APP.
to see, quo animo, or to what intent the defendants entered, and, looking at the facts, it is clear that they entered for the purposes of their business as touts and not for any legitimate user of the highway as such. I agree that the appeal fails.
ROMER, L.J.-I agree. This case cannot be distinguished from Harrison v. Duke of Rutland. Here, as in that case, there was an interference with the plaintiff. He was entitled to the use of his land as a training and trial ground. This practice which the defendants carried on interfered with the right which the plaintiff had of dealing with his adjoining land. I agree that if
the defendants had done this on land not vested in the plaintiff, the latter would have had no legal right to complain; but as it is the plaintiff may ask for what purpose they entered on the soil of the highway, whether to pass and re-pass or to interfere with him in the exercise of his legal rights as owner. The defendants clearly came for the latter purpose, not to use the highway as a highway, but to do acts which amounted to an interference with the plaintiff's user of his adjoining land for reasonable purposes. Thus,
this case comes exactly within the decision of Harrison v. Duke of Rutland. The essence of that case is to be found in the words of Lord Esher: 66 The plaintiff in this case, it should be observed, was doing that which comes within what Lord Campbell, C.J. said in Reg. v. Pratthe was using this part of the highway solely for the purpose of interfering with the rights which the owner of the land was exercising on another part of his land." The judgment of Lopes, L.J. is to the same effect. "The plaintiff," said the Lord Justice, "was using the soil of the highway not for the purpose of passing and repassing, but for the purpose of interfering with the exercise of a legal right by the defendant." I cannot see any distinction between that case and the present. Appeal dismissed.
Solicitors for the appellants, Prior, Church, and Adams, agents for A. Ernest Withy, Swindon. Solicitors for the respondent, Goodale and Hobson, agents for Butterworth, Rose, and Morrison, Swindon.
Saturday, March 17, 1900.
(Before SMITH and ROMER, L.JJ.) KNOWLES AND SON LIMITED v. BOLTON CORPORATION. (a)
APPEAL FROM THE QUEEN'S BENCH DIVISION. Arbitration-Arbitration under Public Health Act 1875-Enlarging time for making awardLimit of time fixed by the statute-Power of court to enlarge beyond that time-Public Health Act 1875 (38 & 39 Vict. c. 55), s. 180 (9). The court or a judge has power to enlarge the time for making an award in an arbitration under sect. 180 of the Public Health Act 1875 beyond the time limited by sub-sect. 9 of sect. 180. THIS was an appeal by the plaintiffs from an order of Kennedy, J. at chambers, refusing to enlarge the time for making an award.
The defendants, in exercise of their powers under the Public Health Act 1875, constructed a
(a) Reported by J. H. WILLIAMS, Esq., Barrister-at-Law.
CT. OF APP.]
KNOWLES AND SON LIMITED v. BOLTON CORPORATION.
sewer through the land of the plaintiffs, and the plaintiffs claimed compensation.
A dispute having arisen between the parties as to the claim for compensation, the matter was referred to arbitration under the Public Health Act 1875.
The Public Health Act 1875 (38 & 39 Vict. c. 55) provides :
Sect. 308. Where any person sustains any damage by reason of the exercise of any of the powers of this Act, in relation to any matter as to which he is not himself in default, full compensation shall be made to such person by the local authority exercising such powers; and any dispute as to the fact of damage or amount of compensation shall be settled by arbitration in manner provided by this Act, or if the compensation claimed does not exceed the sum of twenty pounds, the same may at the option of either party be ascertained by and recovered before a court of summary jurisdiction.
Sect. 180. With respect to arbitrations under this Act, the following regulations shall be observed-that is to say (8) If the arbitrators fail to make their award within twenty-one days after the day on which the last of them was appointed, or within such extended time (if any) as may have been duly appointed by them for that purpose, the matters referred shall be determined by the umpire. (9) The time for making an award by arbitrators under this Act shall not in any case be extended beyond the period of two months from the date of the submission, and the time for making an award by an umpire under this Act shall not in any case be extended beyond the period of two months from the date of the reference of the matters to him.
The Arbitration Act 1889 (52 & 53 Vict. c. 49) provides :
Sect. 9. The time for making an award may from time to time be enlarged by order of the court or a judge, whether the time for making the award has expired or not.
Sect. 24. This Act shall apply to every arbitration under any Act passed before or after the commencement of this Act as if the arbitration were pursuant to a submission, except in so far as this Act is inconsistent with the Act regulating the arbitration, or with any rules or procedure authorised or recognised by that Act.
The arbitrators appointed an umpire on the 25th May 1899, and on the 31st May gave him notice that they were unable to agree.
The umpire proceeded with the reference, but did not make his award until the 5th Sept. The award was in favour of the plaintiffs for 401.
The defendants refused to pay the amount of the award upon the ground that the umpire had not made his award within two months from the date of the reference to him, and that the award was therefore invalid.
The plaintiffs thereupon applied to the judge at chambers, under sect. 9 of the Arbitration Act 1889, for an order enlarging the time for making the award until some date after the 5th Sept. 1899.
Kennedy, J., following the decision in Mackenzie v. Ascot Gas Company (17 Q. B. Div. 114), held that he had no jurisdiction to make the order, and refused the application.
The plaintiffs appealed.
Danckwerts, Q.C. and Horridge for the appellants. The case which was followed by the learned judge at chambers, Mackenzie v. Ascot Gas Company (17 Q. B. Div. 114), was wrongly decided, and the court or a judge has power to extend the time for making an award in an
[CT. OF APP. arbitration under the Public Health Act 1875 beyond the time limited by sect. 180 (9) of that Act. In Lord v. Lee (L. Rep. 3 Q. B. 404) it was held that the statutory limit of three months, fixed by sect. 15 of the Common Law Procedure Act 1854 (17 & 18 Vict. c. 125) as the time within which an award must be made, could be enlarged by the court even after the expiration of that period and after the award had been made. That case was cited and followed in May v. Harcourt (13 Q. B. Div. 688), where it was held that the time fixed by agreement of the parties for making the award could be enlarged by the court even after the award had been made. Now, an arbitration under the Public Health Act is the same as an arbitration under a submission by consent, and the court has the same power in the case of the one as in the case of the other :
Kellett v. Tranmere Local Board, 11 L. T. Rep. 457;
In Warburton v. Haslingden Local Board (ubi sup.) it was held that the reference to arbitration of a question of disputed compensation, pursuant to sect. 180 of the Public Health Act 1875, was a submission to arbitration by consent within the meaning of the Common Law Procedure Act 1854, and that the court had a discretionary power under sect. 8 of that Act "at any time to remit the award back to the reconsideration of the arbitrator; and the effect of that decision to remit the award was necessarily to extend the time beyond the two months limited by sect. 180 (9) of the Public Health Act 1875. In Mackenzie v. Ascot Gas Company (17 Q. B. Div. 114), where it was held that the court could not enlarge the time for making an award beyond the two months prescribed by sect. 180 of the Public Health Act, the previous case of Warburton v. Haslingden Local Board (ubi sup.) was not cited or referred to. In Yeadon Local Board v. Yeadon Waterworks Company (60 L. T. Rep. 550; 41 Ch. Div. 52) it was pointed out by Lindley, L.J. that there were conflicting decisions on this point, and the question was left undecided. The provi sions of sect. 9 of the Arbitration Act 1889 give the court or judge power to enlarge the time in all cases, even after the time has expired, and sect. 24 provides that the Act shall apply to every arbitration under any Act, except so far as it is inconsistent therewith. The provisions of sect. 9 of the Arbitration Act are not inconsistent with sect. 180 (9) of the Public Health Act, which does not in terms refer at all to the court or judge, but only to the arbitrators and umpire.
Cripps, Q.C. and Buckmaster for the respondents. The contention of the appellants is in effect that, in sect. 180 (9) of the Public Health Act 1875, after the words "shall not in any case be extended" there must be read the words "by the arbitrators or umpire." There is no good ground for reading any such words into the subsection. It is conceded that the rules which are applicable to arbitrations under a submission by consent and to statutory arbitrations are the same, with the exception of this statutory prohibition against extending the time beyond two months. In Warburton v. Haslingden Local