(470.)

[IN THE COURT OF APPEAL.]

LONDON COUNTY COUNCIL v. ASSESSMENT COMMITTEE OF THE WOOLWICH UNION.

[DECEMBER 17TH, 1892.]

Poor-rate-Rateability-London County Council-Hypothetical Tenant.

This was an appeal by the London County Council from the judgment of the Queen's Bench Division (Mr. Justice Wright and Mr. Justice Collins) upon a case stated by quarter sessions on appeal against a poor-rate. The London County Council were rated as occupiers of certain hereditaments described as works, buildings, and land (other than sewers) known as the Northern Outfall Deodorizing Works, forming part of the metropolitan main drainage system, at a sum of about £30,000 as the gross estimated rental, and about £27,000 as the rateable value. The appellants were incapable of deriving a profit from their occupation, and if the works, &c., were not used in connexion with the metropolitan drainage system, but were disconnected therefrom and applied to any other use, the gross rental would be £1,200 and the rateable value £1,000. The respondents, the Assessment Committee of the Woolwich Union, contended that the appellants must be assessed in respect of the works, &c., upon the basis of the annual rent which the appellants would pay for the works, &c., as part of and connected with the main drainage system if they were not the owners in possession. The appellants contended that they were not rateable at all in respect of these works, but, if they were, that they should be assessed upon the annual value of the works if the works were not used in connexion with the metropolitan sewage system, but were entirely disconnected therefrom. The quarter sessions affirmed the rate, and the Queen's Bench Division dismissed the appeal upon the ground that it was concluded by the decision of the Court of Appeal in the Mayor, &c., of Burton-on-Trent v. Assessment Committee of Burton-on-Trent (24 Q.B.D., 197).

The COURT allowed the appeal upon the ground that the case was governed by the decision of the Court of Appeal in London County Council v. Assessment Committee of West Ham Union (8 The Times L.R., 591; [1892] 2 Q.B., 44). These works were in the same position as the sewers in that case, the County Council having no power under the statutes governing the case to become tenants of the works, and there could be no other tenants of them, as the appellants had no to let them. The case was distinguishable from the Burton-onpower Trent case, because there the corporation could have become tenants of the land and buildings, and therefore could be taken into account as possible hypothetical tenants. The appellants therefore were not rateable in respect of these works and buildings.-—(T.L.R., C.A., vol. ix., p. 146.)

RB DONKIN AND

THE

(471.)

COMPANY OF PROPRIETORS OF

THE LEEDS, &c., CANAL.

[JANUARY 19TH, 1893.]

Arbitration-Fitness of Arbitrator-Company and Contractor-Reference to Company's Engineer-Questions involving the Arbitrator's Conduct.

Application to revoke a submission to arbitration on the ground that questions would arise involving the arbitrator's conduct; refused, on the ground that these questions formed no substantial part of the case to be referred.

Mr. Justice DAY said the case was important to the parties, and the principle was also of importance. These contracts frequently provided that the engineer should be arbitrator, but when his character or conduct was impugned by the claim of the contractor, the engineer would not be entitled to act as arbitrator. The court had been asked to interfere on the ground that some portion of the claim involved questions of alleged misconduct on the part of the arbitrator—namely, the failure to provide plans and instructions within a reasonable time. A large portion of the claim was unconnected with any misconduct, and was, under the contract, to be decided by the arbitration of the engineer. It was alleged that the one claim was so mixed up with the other that it would be inconvenient to try them before separate tribunals. If the learned Judge had been satisfied that a substantial part of the claim was based on misconduct by the arbitrator, he would have been prepared to withdraw the whole matter from him. Here there was not on the affidavits sufficient to show that there was a really substantial claim on that score. The account given by the contractor in November, 1891, and a letter of August, set out in detail the claims which the contractor set up. It was true that there was a claim therein for delay, but it did not sufficiently appear there was any claim for more delay than would naturally arise in works of this sort when changes of plan take place on development of the works. If the claims did not then exist, as they could not have arisen after, there was no substantiality in them. There ought not, therefore, to be revocation. The engineer, as was usual in these contracts, had to control the execution of the contract and also to arbitrate in case of dispute. The parties had entered into the contract, and they must abide by it. There was nothing in the affidavits sufficient to satisfy his Lordship that the engineer had so conducted himself that a revocation should be granted.

Mr. Justice COLLINS concurred.-(T.L.R., Q.B.D., vol. ix., p. 192.)

(472.)

M ALPINE v. CALDER.

[JANUARY 27TH, 1893.]

Arbitration-Reference of all matters-Effect of.

When by consent there has been a reference of all matters in dispute to an arbitrator a Judge has no jurisdiction to make an order for inspection of documents.

Mr. Justice DAY said the Judge had no jurisdiction to make the order. After this reference no control was left to the Court. All matters were submitted to the arbitrator. He had means for securing inspection, though perhaps indirect ones. interfere with him.

It was not for the Court to

Mr. Justice COLLINS concurred. There was no doubt that before the Arbitration Act, 1889, citizens could refer an action to an arbitrator and give him full powers. Had that been taken away by the Act? No. The point must be that it was beyond the power of the parties to set up an arbitrator and take the matter out of the hands of the Court. The case of the Darlington Wagon Company v. Harding (7 The Times L.R., 106), showed that it was competent for parties to do so if there was an action and matters in difference beyond the action. The Master of the Rolls stated that the order of Court in that case was "under the general authority of the Judge to act on the consent of the parties and name an arbitrator," and not under the Arbitration Act. It was by virtue of the inherent authority of the Court; the fact that there were no matters in difference beyond the action did not deprive the parties of their power to refer the action to the award of an arbitrator. The arbitrator in this case had all the powers an arbitrator had at common law before the Arbitration Act.— (T.L.R., Q.B.D, vol. ix., p. 219.)

(473.)

[WEST RIDING QUARTER SESSIONS, LEEDS.]

THE MIDLAND RAILWAY COMPANY v. SETTLE UNION ASSESSMENT COMMITTEE.

[JANUARY 2ND, 3RD, AND 4TH, 1893.]

(Kindly communicated by Mr. Castle, Q.C., Associate.)

This was an appeal of the Midland Railway Company against their assessment in the various parishes comprising the Settle Union. The appeal respecting the parish of Otterbourn was heard while fourteen other appeals (all in the same Union) depended on the issue of the case, which had been agreed by the parties to be taken as a test.

The piece of the Midland line through the township of Otterbourn

is a little over a mile in length. At one time the line was rated at £280 a mile, but in 1884 the assessment was increased to £800, and the assessment against which the appeal was made amounted to £1,584. The questions at issue were, what was the tenants' capital to earn the gross receipts of £8,074, for the portion of the line in the township, and secondly at what percentage the occupiers' share should be put.

The appellants contended that £9,692 was the amount of capital required to earn £8,074 of receipts, or about 120 per cent., and they claimed 20 per cent. thereon as the share which the occupier would reasonably require for carrying on his business, and which made the net rateable value of the company's property in the township to be £620, and not £1,584. The company's witnesses based the 20 per cent. deduction on 5 per cent. for interest on capital, 10 per cent. for profit, and 5 per cent. for casualties, depreciation of rolling stock, and insurance.

The respondents, on the other hand, contended that about 80 per cent. of the gross receipts, or £6,459, would be sufficient for the tenants' capital in the township, and that upon that amount the company ought only to be allowed 10 per cent., or £640, for trade profits and contingencies.

The Chairman, after the Bench had consulted, said the magistrates had given great consideration to the appeal, and were of opinion that the sum at which the appellant company ought to be rated within the township of Otterbourn, was £1,105, and that each party should pay their own costs.

(474.)

LEYTON LOCAL BOARD v. CAUSTON.

[JANUARY 14TH, 1893.]

Local Government Acts-Public Health (Buildings in Streets) Act, 1888 (51 and 52 Vict. c. 52), sec. 3-Building line-Corner house"Warren v. Mustard" (8 The Times L.R., 65).

This was an appeal from a decision of the magistrates at Stratford, Essex, dismissing a complaint by the Local Board for building a house beyond the line of building in a street, the question being in effect whether a corner house is within the enactment in the Public Health Act of 1888 (51 and 52 Vict., cap. 52, s. 3), which says that it shall not be lawful to erect any building in any street or road beyond the line of the front main wall on either side of it. The building in question is at the corner of two streets (Melford Road and Park Road) in Leytonstone, in each of which there is a line of houses, and the building in question is 7 ft. beyond the line of the front main wall in each of the streets. The magistrates refused to convict, and the Local Board appealed. The case was similiar to that in Warren v. Mustard (8 The Times L.R., 65), and it will be seen the decision was similar.

Lord COLERIDGE said the contention of the respondent would come

to this, that a corner house could not be within the enactment, and might project any distance beyond the line of building in either of the streets joining the corner. There was a "front main wall" in both the streets.

Mr. Justice CAVE said the case was too clear for argument.

-(T.L.R., Q.B.D., vol. ix., p. 180.)

Appeal allowed.

(475.)

CARR v. FOWLE.

[JANUARY 16TH, 1893.]

Revenue-Land Tax-New Rent-charge-49 and 50 Vict. c. 54,
secs. 3 and 4, sub-sec. 5.

The new rent-charge substituted by 49 and 50 Vict., c. 54, for the old extraordinary tithe is not subject to land tax.

This case raised a question whether the new rent-charge substituted for the old extraordinary tithe on hops and fruit is subject to land tax.

This is an action brought for the recovery of £17 10s. 4d., and by the order of Master Kaye, of July 6, 1892, the following case was stated:

"1. The plaintiff is the vicar of the parish of Marden, in Kent, and the defendant is the collector to the Local Commissioners for the Land Tax.

"2. On February 3, 1892, the defendant distrained upon certain goods in the vicarage of the plaintiff as a distress for non-payment of the land tax, and the plaintiff, to prevent the sale after seizure, paid £17 10s. 4d. under protest.

"3. The said distress was levied in respect of land tax due, or alleged by the defendant to be due, in respect of the new rent-charge payable to the plaintiff, as vicar of the parish aforesaid, which was substituted by the Extraordinary Tithe Redemption Act, 1886, for the former extraordinary charge.

"4. The plaintiff admits the distress was legal and proper in all respects if the new rent-charge is not exempt from land tax.

"5. In 1886 the Extraordinary Tithe Redemption Act was passed, by which the old extraordinary tithe was abolished, and in place of it was substituted the said new rent-charge.

"6. The plaintiff contends that upon the proper construction of the Act the new rent-charge is exempted from land tax, but the defendant maintains the negative.

"7. The defendant contends that the new charge substituted for the old extraordinary tithe is still subject to land tax and properly chargeable therewith.

"The question for the opinion of the Court is whether, upon the