Q.B. Div.]

which I have advisedly omitted for the time being, that the Legislature did not intend by the language of this section to make every person liable to this rate, quite irrespective of whether or not he had any exemption in the past under such terms as he had in 7 Geo. 3 -namely, that this particular land was to be free from all taxes and assessments whatsoever. But I think that there are words here which justify the authorities in saying that whether or not they would have been entitled to levy their rate on this property under the authority of the cases I have just quoted, yet it is manifest from the language used that it was intended to bring within the area of their rating and within the area of land which was liable to be rated land

which previously was exempt "whether such person" not whether the land, but "whether such person shall be now liable in respect of such house or building to be assessed to the relief of the poor or be not liable to be assessed to the relief of the poor in respect thereof by reason of such house or building being situated in any precinct or extra parochial place or otherwise." It is quite clear it was considered by all these authorities that the exemption was intended to cover liability to be assessed to the relief of the poor, but it says here distinctly that although you may not be liable to be assessed to the relief of the poor because you are in some extra parochial place, yet you are to be liable to this rate. Therefore although they as it were earmark the reasons that have been given for the exemption being held to be good in part because they were liable to be assessed to the poor rate, yet here they say, although you may not be liable to be assessed to the poor rate because your land is extra parochial, you shall be liable for this. Then other words are used covering any other exemption there may be "or otherwise," which I think are wide enough under the circumstances to cover such an exemption as this. Probably there are very few cases in the City, at least I should think there were very few cases where there would be such an exemption as this. If there were many I should think some reference would have been made to them. This is the only Act that has been mentioned in which there is such an exemption as this. There. fore it is not much to be wondered at that they put in the words "or otherwise" instead of referring to the other exemptions known to be in existence at the time. Although the case is not free from doubt, particularly remembering the decision of Lord Blackburn, I still think that, notwithstanding that decision, when this Act of Parliament was passed it was intended to bring within the area of rateability land which previously had the privilege of being exempt under this Act from all the rates existing at that time.

CHANNELL, J.-I am of the same opinion, but I should like to add a few words. I think this case is one of considerable difficulty, but on the whole I am of the same opinion as my brother. The three cases which have been referred to, Williams v. Pritchard (4 T. R. 2) and Eddington v. Borman (4 T. R. 4) and Rex v. London Gas Light Company (8 B. & C. 54), require a good deal of consideration as to the construction of this Act (7 Geo. 3), and they show, to my mind, that it was intended to relieve land that was embanked and created for valuable purposes under that Act

[Q.B. DIV.

from all rates and taxes which then existed, and which would in the ordinary course of things from time to time be created. It was intended to relieve land from those burdens, even although the form of the burden might be changed to some extent from time to time. It was a special local Act, and its construction, and the way it would be affected by subsequent legislation, would be that laid down more particularly in recent times by Lord Blackburn in Garnett v. Bradley (ubi sup.). Something of the same sort was said by Lord Kenyon in the earliest of these cases, but I think that he stated the proposition rather differently from that which is now held to be the correct proposition. What he says is this: "It cannot be contended that a subsequent Act of Parliament will not control the provisions of a prior statute if it were intended to have that operation." That is the modern doctrine exactly, and he goes on: "But there are several cases in the books to show that where the intention of the Legislature was apparent, that the subsequent Act should not have such operation, there, even though the words of such statute, taken strictly and grammatically, would repeal a former Act, the courts of law, judging for the benefit of the subject, have held that they ought not to receive such a construction." Now, that slightly differs, I think, from the modern doctrine, because according to that view you have to find out in the subsequent Act that there was an intention that the previous one should not operate; whereas I think it is now decided rather to the contrary, that the presumption is that the prior particular Act is not intended to be affected unless you can find words which show the contrary; and no doubt the doctrine has been a little developed since the time of Lord Kenyon; but, applying those principles, we have got various ways of finding whether there was an intention sufficiently indicated to take away the operation of the first Act with the exemption in it. If you had got an Act conferring an entirely new benefit upon the hereditament, such as water being supplied, which was not supplied before, and a rate, which although called a rate is a payment for the water, I should think that would be suffi cient of itself to show an intention by the general words to make everybody who got the benefit pay for it. But I do not think that this case is so strong. It may be that the things which the City of London Sewers Act at the moment were providing for were the benefits that were to be given to the occupiers of houses and buildings, and which were to be paid for by the consolidated rate. It may be that they were to some extent in excess of what they had been before, but I think they were of a similar nature. There always has been, I believe, a certain amount of lighting in the city; one reads of what the mode was in ancient times, and according to modern ideas it would be very unsatisfactory, but there was a certain amount of lighting a long time ago in the City, and the recital in this Act shows there were some things called sewers as long ago as the time of Charles II., although at that time sewers were walls, generally to keep out the sea, and not to drain, so that I doubt whether there is enough in the City of London Sewers Act in the way of new benefits to be sufficient on that ground only to say that the former exemptions were done away with. But what I go upon is that in the 169th

Q. B. Div.]

Fection of the Act of 1848 there is indicated an express intention to do away with at any rate some exemption. That is an extremely important matter, as it appears to me. Then let us see how it stands. The first is "that every person who shall inhabit, hold, occupy, possess, or enjoy any house or building within the City "if it stopped there in my opinion it would not be sufficient to take it away. That is what I have been thinking-namely, whether it was for all purposes a new thing and a new benefit, so that the fact of its being a new thing and a new benefit would be enough to show an intention to do away with the old exemption. I do not think that that would be enough, but it goes on : "Whether such person shall be now liable in respect of such house or building to be assessed to the relief of the poor or be not liable to be assessed to the relief of the poor in respect thereof.” If it stopped there it might take away the very ground upon which this exemption was based in the case of Eddington v. Borman (4 T. R. 4), and in all probability one would have to say that that was gone.

[CT. OF APP.

Supreme Court of Judicature.

COURT OF APPEAL.

Monday, June 25, 1900.

(Before SMITH, WILLIAMS, and ROMER, L.JJ) BARNETT v. ECCLES CORPORATION. (a) APPEAL FROM THE QUEEN'S BENCH DIVISION. Local Government-Public Health Acts-Exercise of powers by local authority-Person sustaining damage-" Compensation "-Costs of legal proceedings-Extra costs beyond taxed costsPublic Health Act 1875 (38 & 39 Vict. c. 55), 8. 308.

A person who has successfully resisted proceedings taken against him by a local authority under the Public Health Act 1875 and has recovered his taxed costs under an order of the court cannot compensation," under sect. 308 of the Act, the extra costs which he has reasonably and properly incurred.

66

66

at all? The next words do cut it away. They are: "By reason of such house or building being situated in any precinct or extra parochial place." If it had stopped there, undoubtedly that would have cut down the effect of what preceded it, but it again gos on or other. wise." How must one consider the words "or otherwise"? It must be analogous to something that has gone before, and you must-and this is the strongest argument against Mr. Danck werts -bring in the ejusdem generis principle. Is not this ejusdem generis? This is a local exemption of a certain area which, in point of fact, is within the City-nobody can doubt that—but it is a part of the City which at that time was exempt from being assessed to the relief of the poor. It was not because it was within a precinct or an extra parochial place, but it was, as it seems to me, by reason of its situation, and it was entirely analogous to the exemption of the precinct and extra parochial place. On the whole, therefore, I think there is enough there to indicate an intention to override the previous statute. I think there is some little difficulty created by the illustration of the literary and scientific societies. That has been expressly decided by a case that Mr. Danckwerts has referred us to on a slightly different but analogous Act of Parliament. I must assume, therefore, that the principle of this being an exemption under the public Act would be suffi cient. But, whether that is so or not, I decide the case in favour of the rateability on the ground that there is indicated in the Act of 1848 a sufficient intention to override the exemption in the earlier Act. Upon those grounds our decision must be for the respondents. Appeal dismissed.

Solicitors: Sir H. H. Crawford; Clark, Rawlins, and Co.

THIS was an appeal by the plaintiff from the judgment of the Divisional Court (Bigham and Phillimore, JJ.) upon a special case stated by an arbitrator.

The plaintiff was the owner of certain cottages in the borough of Eccles.

The defendants, who were the local sanitary authority, caused a notice to be served upon the plaintiff, under sect. 94 of the Public Health Act 1875, requiring him within fourteen days to abate a nuisance existing upon his property and to do certain specified works for that purpose.

The plaintiff did not comply with the requirements of that notice.

The defendants thereupon laid a complaint against the plaintiff, under sect. 95 of the Public Health Act 1895, for that the nuisance existed upon the premises mentioned in the notice and that the nuisance was caused by the act, default, or sufferance of the plaintiff, and that he was the owner of the premises.

The complaint was heard and determined by justices in a court of summary jurisdiction, and the justices made an order requiring the plaintiff to comply with all the requirements of the notice.

The plaintiff appealed against that order to quarter sessions, and the court of quarter sessions dismissed the appeal, subject to the opinion of the Queen's Bench Division upon a case stated.

Upon the hearing of the special case, the Divisional Court allowed the appeal and ordered that the order of quarter sessions, dismissing the appeal of the plaintiff against the order of the justices of the borough, should be quashed, with costs, and judgment entered for the appellant (79 L. T. Rep. 408).

It was further ordered by the Divisional Court that the defendants should pay to the plaintiff his costs of the appeal to the Divisional Court, to be taxed by the master of the Crown Office.

The costs of the appeal to the Divisional Court were taxed at 621., and the costs of the appeal to quarter sessions were taxed at 831., and these (a) Reported by J. H. WILLIAMS, Esq., Barrister-at-Law.

CT. OF APP.]

two sums were paid by the defendants to the plaintiff.

In prosecuting these appeals the plaintiff incurred greater expenses than the amount which he recovered from the defendants. In the appeal to the Divisional Court he expended 557., and in the appeal to quarter sessions 54l., more than the amount of the taxed costs paid by the defendants.

The plaintiff's costs in the proceedings at petty sessions were 50l., none of which he had recovered from the defendants.

All these expenses were reasonably and properly incurred by the plaintiff.

The plaintiff claimed the amount of his expenses, over and above the amount of taxed costs which he had received, as compensation

under sect. 308 of the Public Health Act 1875.

This claim was referred to arbitration under the Act, and the arbitrator found the facts as above stated.

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.

Upon the argument of the special case stated by the arbitrator, the Divisional Court (Bigham and Phillimore, JJ.) held that the plaintiff was not entitled to recover more than his taxed costs as "compensation" under sect. 308.

With regard to the costs of the proceedings at petty sessions, the Court of Appeal came to the conclusion that the Divisional Court had decided the matter upon the understanding that it had been agreed between the parties that those costs should be taxed by some officer of the court, leaving for decision as to those costs only the question whether the plaintiff could recover his expenses beyond the amount of the taxed costs.

The plaintiff appealed.

F. Marshall, Q.C. and Clarke Hall for the appellant. The Divisional Court was wrong in deciding that, under sect. 308 of the Public Health Act 1875, the plaintiff cannot recover as "compensation the expenses which he has reasonably and properly incurred beyond the taxed costs paid by the defendants. Sect. 308 provides that the person who sustains damage by reason of the exercise of the powers of the Act shall recover "full compensation." That must mean that the person who has sustained damage shall be reimbursed all expenses which he has reasonably and properly incurred by reason of the action of the local authority. The plaintiff has sustained damage to the extent of such expenses:

Bater v. Birkenhead Corporation, 68 L. T. Rep. 680 (1893) 2 Q. B. 77;

Walshaw v. Brighouse Corporation, 81 L. T. Rep. 2; (1899) 2 Q. B. 286.

The fact that under an order of the court the plaintiff has recovered part of those expenses cannot deprive him of his right to recover the whole

[CT. OF APP.

as "full compensation." The plaintiff is, under sect. 308, entitled to an indemnity, and a person entitled to an indemnity can recover from the person liable to indemnify him any costs which he has reasonably and properly incurred in defending proceedings over and above the amount of taxed costs:

Smith v. Compton, 3 B. & Ad. 407;

Howard v. Lovegrove, 23 L. T. Rep. 396; L. Rep. 6
Ex. 43.

Danckwerts, Q.C. for the respondents.-The decision of the Divisional Court was right. A person can only claim compensation, under sect. 308 of the Public Health Act 1875, for damage caused to him by the exercise by a local authority of the powers of the Act, if he would have had a right of action at common law but for the fact that the act complained of was done under statutory powers That principle has been laid down in cases under several different statutes by which compensation is given topersons damaged by the exercise of statutory powers:

Ricket v. Metropolitan Railway Company, 16 L. T.
Rep. 542; L. Rep. 2 H. L. 175;

New River Company v. Johnson, 2 E. & E. 435;
Rhodes v. Airedale Drainage Commissioners, 35
L T. Rep. 46; 1 C. P. Div. 402;

Hall v. Bristol Corporation, 15 L. T. Rep. 572;
L. Rep. 2 C. P. 322.

That principle is applicable to the present case, and the difference between the costs actually incurred and the costs allowed upon taxation under an order of the court is not damage for which an action would lie, and is, therefore, not damage recoverable under sect. 308. The amount allowed upon taxation of costs is the amount which the law says is compensation for the expenses which a party has incurred. The defendants might have brought an action against the plaintiff in the High Court to obtain an abatement of the alleged nuisance under sect. 107 of the Act. If they had done so, and the present plaintiff had got judgment with costs, it could not have been contended that he could recover, under sect. 308, his extra costs beyond the costs allowed on taxation. In Bater v. Birkenhead Corporation (ubi sup.) and Walshaw v. Brighouse Corporation (ubi sup.) there was no order for payment, and no payment, of taxed costs.

Marshall, QC. replied.

SMITH, L.J.-I think that this appeal must be dismissed. In the arbitration three items of damage were claimed by Barnett. Sect. 308 of the Public Health Act 1875 says that "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 in himself in default, full compensation shall be made to such person by the local authority exercising such powers." Under that section Barnett says that he was entitled, as full compensation," to recover the difference of his expenses which he reasonably incurred, over and above the amount of the taxed costs, in his appeals to quarter sessions and to the Divisional Court, and his costs of the summary proceedings. I will first of all deal with the question of the costs of the defence before the justices, as to which there is a difference of recollection as to what occurred in the Divisional Court. It is said that there never was any order as to the costs of the proceedings

before the justices, and that, therefore, whatever the rule may be as to the costs of the appeals to quarter sessions and to the Divisional Court, it does not apply to these costs incurred at the petty sessions. Mr. Danckwerts says that, in the Divisional Court, the respondents undertook to pay all the taxed costs of the proceedings at petty sessions, and that those costs are therefore in the same category as the costs of the two appeals. I think that that was so. The judgment of the Divisional Court deals with those costs in that way. The real point in the Divisional Court was with respect to the difference between solicitor and client costs and the taxed costs. Throughout the judgments of the learned judges in the Divisional Court the point discussed is whether the appellant could receive the difference between the costs which he incurred and the taxed costs, and the decision was that he was not entitled to recover any costs above the amount of the taxed costs, as "full compensation" under sect. 308. It seems to me that the view of the learned judges of the Divisional Court was right, and that what the law gives as full compensation." in respect of costs, is, where there has been a taxation of costs, the amount of the costs allowed on taxation and no more. It seems to me, therefore, that this case is perfectly clear and that the decision is in accordance with the two cases which have been cited: (Bater v. Birkenhead Corporation, 68 L. T. Rep. 680; (1893) 2 Q. B. 77; Walshaw v. Brighouse Corporation, 81 L. T. Rep. 2; (1899) 2 Q. B. 286).~ I think, therefore, that this appeal fails and must be dismissed.

66

WILLIAMS, L.J.-I agree. I have no doubt that in the Divisional Court the principal point which Barnett wished to raise was that, in respect of the costs at petty sessions, at quarter sessions, and in the Divisional Court, he was entitled, by reason of the words full compensation" in

66

sect. 308 of the Public Health Act 1875 to recover as part of the compensation the difference between the taxed costs and the costs as between solicitor and client. But besides this, which was the main thing which Barnett wished to establish, he also contended that, as to the costs at petty sessions, there was no order upon which any taxation could take place and no means therefore of getting an assessment of those costs by taxation, and that in those circumstances he was entitled in the arbitration to get as part of the full compensation all the costs which he had actually incurred at petty sessions. I am not satisfied that there was at any time any order with regard to the costs at petty sessions. If there was not, I can see nothing which would prevent Barnett from recovering as part of his full compensation, under sect. 308, the actual costs which he incurred at petty sessions. It is not, however, necessary to dispose of that point, because when this point was raised in the Divisional Court there was such a discussion as to lead the court to conclude that that point was waived and that the only point for them to decide was as to the difference between taxed costs and solicitor and client costs in all the three cases. It seems to me to be plain from the judgments of the Divisional Court that the learned judges so understood the discussion that they only had to decide as to the difference between taxed costs and solicitor and

Thursday, July 19, 1900.

(Before SMITH and WILLIAMS, L.JJ.)

ST. JAMES'S HALL LIMITED v. LONDON COUNTY COUNCIL. (a)

APPEAL FROM THE QUEEN'S BENCH DIVISION. Practice-Injunction-Action to restrain proceedings under Metropolis Management Act 1878, s. 11-Interim injunction.

Sect. 11 of the Metropolis Management Act 1878, provides that the Metropolitan Board of Works, who were succeeded by the London County Council in 1889, may by written notice require the owner of a place of public resort, which is so structurally defective that special danger from fire may result to the public, to make such alterations in the premises as may be necessary to remedy such defect; and imposes a penalty of 501. for default in compliance with the notice, and of 51. for every day during which the default continues; and provides that the owner may appeal against the notice, which appeal shall be referred to arbitration. By sect. 23, the penalties are recoverable by summary proceedings before a magistrate.

In 1885 the board served a notice on the defendants, under sect. 11, requiring them to make certain structural alterations in the premises, and the defendants complied with the requirements of that notice. In May 1890 the London County Council served another notice upon the defendants, under sect. 11, requiring certain alterations in the same premises.

The defendants gave notice of appeal under protest, and commenced this action for a declaration that the defendants had no power to give a second notice under sect. 11, and for an injunction restraining them from taking any proceedings upon the notice.

Held, that an interlocutory injunction might properly be granted restraining the defendants, until the trial, from taking any proceedings in the arbitration upon the plaintiffs' appeal against

the notice.

THIS was an appeal by the London County Council from an order of Bucknill, J., at chambers, granting an interim injunction until the trial of the action.

In 1885 the Metropolitan Board of Works, who were the predecessors of the London County Council, served a notice upon the plaintiffs requiring them to make certain alterations in their premises under sect. 11 of the Metropolis Management Act 1878.

(a) Reported by J. H. WILLIAMS, Esq., Barrister-at-Law.

The plaintiffs complied with the terms of that notice, and expended about 7000l. upon the premises.

In May 1900, the London County Council, who had succeeded to the powers of the Metropolitan Board of Works, served a notice upon the plaintiffs requiring them to make certain alterations in the same premises, under sect. 11.

The plaintiffs at once objected that there was no power to serve a second notice under sect. 11 when the requirements of the first notice had been complied with.

The Metropolis Management and Building Acts Amendment Act 1878 (41 & 42 Vict. c. 32) provides:

Sect. 11. Whenever it appears to the board that any house or other place of public resort within the metropolis which was at the time of the passing of this Act authorised to be kept open for the public performance of stage plays, and which is kept open for such purpose, under the authority of letters patent from Her Majesty, her heirs, successors, or predecessors, or of a licence granted by the Lord Chamberlain of Her Majesty's Household for the time being, or by justices of the peace, or that any house, room, or other place of public resort within the metropolis, containing a superficial area for the accommodation of the public of not less than five hundred square feet, which was at the time of the passing of this Act authorised to be kept open, and which is kept open, for dancing, music, or other public entertainment of the like kind, under the authority of a licence granted by any court of quarter sessions, is so defective in its structure that special danger from fire may result to the public frequenting the same, then and in every such case the board may, with the consent of the Lord Chamberlain in the case of theatres under his jurisdiction, and of Her Majesty's Principal Secretary of State in all other cases, if in the opinion of the board such structural defects can be remedied at a moderate expenditure, by notice in writing, require the owner of such house, room, or other place kept open for any of the purposes aforesaid, under such authority as aforesaid, to make such alterations therein or thereto as may be necessary to remedy such defects within a reasonable time to be specified in such notice; and in case such owner fails to comply with the requirements of such notice within such reasonable time as aforesaid, he shall be liable to a penalty not exceeding fifty pounds for such default, and to a further penalty of five pounds for every day after the first day after the expiration of such reasonable time as aforesaid during which such default continues: Provided always, that any such owner may, within fourteen days after the receipt of any such notice as aforesaid, serve notice of appeal against the same upon the board, and thereupon such appeal shall be referred to an arbitrator to be appointed by Her Majesty's First Commissioner of Works at the request of either party, who shall hear and determine the same, and may, on such evidence as he may think satisfactory, either confirm the notice served by the board, or may confirm the same with such modifications as he may think proper, or refuse to confirm the same, and the decision of such arbitrator, with respect to the requirements contained in any such notice, and the reasonableness of the same, and the persons by whom and the proportions in which the costs of such arbitration are to be paid, shall be final and conclusive and binding upon all parties. In case of an appeal against any such notice, compliance with the requirements of the same may be postponed until after the day upon which such appeal shall be decided as aforesaid, and the same, if confirmed in whole or in part, shall only take effect as and from such day.

Sect. 23.-Every penalty imposed by Part I. and Part III. of this Act may be recovered by summary

[CT. OF APP.

proceedings before any justice in like manner and subject to the like right of appeal as if the same were a penalty recoverable by summary proceedings under the Metropolis Management Act 1855, and the Acts amending the

same.

The plaintiffs, under protest, within fourteen days after service of the notice, gave notice of appeal against it to the London County Council, in accordance with the provisions of sect. 11.

The plaintiffs then commenced this action against the London County Council, claiming a declaration that the defendants had no power to serve a second notice under sect. 11, and asking for an injunction restraining the defendants from taking any proceedings upon the notice.

Upon the application of the plaintiffs, Bucknill, J., at chambers, granted an injunction restraining the defendants, until the trial of the action, from taking any proceedings upon the notice.

The defendants appealed.

In

F. F. Daldy for the appellants.-An interim injunction ought not to have been granted in this. case. Assuming that the court has jurisdiction to grant an injanction in such a case as this, yet the authorities show that the court will not exercise that jurisdiction, but will refuse to grant an injunction where the claim is in substance merely a claim for an injunction to restrain summary proceedings before a magistrate under a statute which has provided that questions arising under the statute shall be determined by a magistrate. In the present case it is provided, by sect. 23 of the Act, that a magistrate shall determine questions arising under sect. 11. The reference to arbitration, provided for in sect. 11, deals only with the details of the notice, and all proceedings for enforcing the notice, and all questions as to the validity of the notice, must be taken and determined before a magistrate. Grand Junction Waterworks Company v. Hampton Urban District Council (78 L. T. Rep. 673; (1898) 2 Ch. 331), all the authorities were fully considered by Stirling, J., and that learned judge stated the rule to be, that the court will not interfere by way of injunction or declaration of right where the Legislature has provided a mode of procedure before a magistrate, unless in very special circumstances. That is, there must be some special equitable grounds existing before the court will interfere. If the action is one which does no more than claim a declaration and an injunction, the court will not interfere to prevent the question between the parties being determined in the manner pointed out by the Legislature, although, if there is a properly constituted action before the court in which some right of property is involved, the court will deal with the whole matter:

Auckland v. Westminster Board of Works, 26 L. T.
Rep. 961; L. Rep. 7 Ch. 597;

Kerr v. Preston Corporation, 6 Ch. Div. 463;
Hedley v. Bates, 42 L. T. Rep. 41; 13 Ch. Div.
498;

Stannard v. Vestry of St. Giles, Camberwell, 46
L. T. Rep. 243; 20 Ch. Div. 190.

In the present case it is not suggested that there are any special equitable grounds for the interference of the court. There are authorities, in a different class of case, that where a statute provides for special proceedings, an action cannot be