1890. left at or sent through the post to his last known residence or place of business in the colony. There is no doubt, looking at WAVERLEY the purview of the 164th section and the 175th section, which BOROUGH OF V. JAMES. might well have immediately followed that section, that the Windeyer J. intention of the Legislature was to make the property and its owner liable for the rates. In this case we must assume that the property was occupied and that notice was given to all persons in occupation. By the 176th section it is provided: "In case any occupier of any ratable property shall fail after 30 days' notice as aforesaid to pay any such rate as aforesaid in such instalments and at such periods as the council shall have directed by any by-law, or until such by-law shall be in force by any resolution, the mayor may issue his warrant for levying the amount, with costs, by distress and sale of the goods and chattels found on the premises for such rate or assessment." The section then proceeds to provide for the cases in which the tenant or owner may be sued. The contention on behalf of defendant in the Court below was that the owner, who was the defendant in this instance, could not be sued unless it was shewn that the person in occupation had not paid, and that goods and chattels were not found on the premises sufficient for the payment of the rates. His Honour the Chief Justice sustained this contention, and nonsuited the plaintiff because he was of opinion that before the owner could be sued it must be shewn that these two things had occurred—namely, that the occupier had not paid, and that there were not sufficient goods on the premises to answer for the payment of the rates with costs. It appears to the Court that the first thing which the portion of the section commencing " and in case any premises for which such rate as aforesaid shall be payable shall be unoccupied" provides, is that if the premises should be unoccupied, then the tenant or owner may be sued for the same, &c. That is, of course, either if there was an occupier at the time to whom notice had been given, and by which notice the owner would be bound, or if, being unoccupied, he had been served as section 164 of the Act directs. Having thus provided the conditions upon which the owner may be sued if the premises are unoccupied, the statute then proceeds to deal with the case where the premises are occupied, and to point out 1890. BOROUGH OF V. JAMES. Windeyer J. what must be the conditions under which the owner may be sued. They are these: "Or if the occupier thereof-not being the tenant or owner-shall after such notice as aforesaid not pay the same, WAVERLEY or goods or chattels shall not be found on the premises sufficient for the payment thereof with costs such tenant or owner may be sued, &c." It has been argued that the words "not pay the same" must be separated from the words "or goods or chattels shall not be found on the premises sufficient for payment thereof with costs," and that either the non-payment or not finding goods on the premises sufficient to answer the demand, must each be taken as a separately constituted set of circumstances under which the owner may be sued. The Court is of opinion that such a construction cannot be maintained, and that the true construction of the sentence is to make the non-payment and the not finding sufficient goods and chattels on the premises to answer the demand, the conditions which must precede the right to sue the owner, and that the section must be read, "Or if the occupier shall, after such notice as aforesaid, not pay the same, and goods and chattels shall not be found on the premises sufficient for payment thereof with costs such tenant or owner may be sued, &c." It is unnecessary to go into other circumstances under which the owner may be sued, and then the section goes on "or such tenant or owner shall fail after notice as aforesaid," referring to the notice which is to be given under the 164th section. An attempt has been made to sustain the argument of the plaintiff upon the proviso to that section, which is in these words: "Provided always that it shall be lawful for the council of any municipality at their discretion to withhold the said proceedings by distress and sale, and notwithstanding anything to the contrary herein contained, to recover the amount of rates due from any person liable to the payment thereof in pursuance of the provisions of this Act by action of debt in any Court of competent jurisdiction." It appears to the Court that that proviso gives the right to municipalities if they think fit simply to forbear proceedings of distress and sale, and to sue the person against whom such proceedings might be taken, and who was otherwise liable. That proviso does not mean that the municipality may withhold the proceedings of distress and sale against BOROUGH V. JAMES. Windeyer J. 1890. the person who is in occupation, and who does not pay, but who has goods enough to satisfy the demand. The Court has WAVERLEY come to that conclusion by reason of the words "due from any person liable to the payment thereof, in pursuance of the provisions of this Act," which are to be found in the latter part of the proviso which I have read. These words appear clearly to indicate that what the municipal council may do is to forbear proceedings by distress and sale against a person who is liable under the combined provisions of the 164th and 175th sections of the Act, he being the occupier, and that they are not intended to give the council power to proceed against the owner unless it can be shewn that the person who is in possession of the premises has not paid and has not goods to satisfy the demand for the rates; in other words, if the council forego the distress it has the right to proceed against the person who is in that case liable for the rates. To attempt to apply these words so as to make the owner directly answerable in the action would be to give the go-by altogether to the former part of the section, which clearly points out the circumstances only under which the owner can be sued, and which, as I have already pointed out, shews that he may only be sued where the occupier, being in possession, has not paid his rates, and is unable to pay. For these reasons we are of opinion that his Honour the Chief Justice was right in directing a nonsuit, and that the rule must be discharged with costs. SIR GEORGE INNES, J., and STEPHEN, J., concurred. Rule discharged with costs. Attorney for the plaintiff: H. S. Williams. Attorney for the defendant: H. C. Lyons. O'ROURKE AND ANOTHER v. THE COMMISSIONER FOR RAILWAYS. Practice-Costs-Taxation-Verdict in pursuance of an award-Powers of Court and Prothonotary. An action having been commenced in the Supreme Court was referred by consent to arbitration, and the arbitrators were to return a general award on the whole declaration for a sum certain, and such award was to be entered as a verdict whereon final judgment might be signed, and costs of the action, reference, and award were to follow the verdict so entered. Held (reversing the decision of the Court below), that, the appellants having obtained a verdict for a portion of the sum claimed by them, which verdict carried costs, the Court could not give the respondent a verdict for the residue of the sum claimed, and then delegate to the Prothonotary the duty of ascertaining, by the evidence of the arbitrators and others, as to what parts of the appellants' claim the respondent had succeeded, with a view to the apportionment of costs. Held, further, that such evidence would be inadınissible, as tending to explain or contradict the award. Duke of Buccleuch v. Metropolitan Board of Works (1) followed. PRIVY COUNCIL APPEAL. This was an appeal from the order of the Full Court, reported at p. 357 of 9 N.S.W. L.R. The facts of this case fully appear in the judgment of their Lordships. The Attorney-General (Sir R. Webster) and E. Pollock, for the appellants. By the terms of the order of reference, the award was to be entered as the verdict, and the costs were to follow the verdict and be taxed in the ordinary way. Those costs included costs of the action of and incidental to the arbitration and of the award. The order was made by consent, and amounted to an agreement that the costs should be disposed of in one way, i.e., they should follow the verdict. The award was conclusive. No evidence was admissible to explain or contradict it. The Court had no jurisdiction, after the award Present:-The Earl of Selborne, Lord Watson, Lord Field, and Sir Barnes Peacock. (1) L.R. 5 H.L. 418. 1890. P. C.* May 15, 16 June 28. 1890.. was found in favour of the appellants, to enter a verdict for O'ROURKE the respondent for any amount, and then apportion the costs V. THE COMMIS SIONER FOR according to the two verdicts. [Reference was made to Wilcox v. Wilcox (2), Crawshaw v. York and North Midland Railway RAILWAYS. Co. (3), Traherne v. Gardner (4), Anderson v. Chapman (5), Whitworth v. Hulse (6), Little v. Sandeman (7), Duke of Buccleuch v. Metropolitan Board of Works (8). Reid, Q.C., and Leverson, for the respondent, contended that although the order of reference empowered the arbitrators to return a general verdict, still the issues were divisible, and that upon some of them the arbitrators must have found for the respondent, having regard to the amount which they awarded against him, and which was much less than the amount claimed. According to the usual practice, the respondent was entitled to his costs of the issues on which he succeeded. There was nothing in the terms of the order of reference to deprive him of that right. He was entitled to his costs on a true interpretation of the order, and in accordance with the intention of the parties. In order to tax costs in this case properly, it was in accordance with the usual practice and the decisions of the Courts that the postea should be amended as ordered, and that the Prothonotary should examine the arbitrators, and take other evidence so as to ascertain upon which issues the respondent had succeeded. [Reference was made to Traherne v. Gardner (4), and Williams v. Great Western Railway Co. (9). Counsel for the appellants were not heard in reply. The judgment of their Lordships was delivered by LORD WATSON. The appellants constructed part of a railway line, under a contract with the respondent, who is the Commissioner for Railways for New South Wales; and, disputes having arisen as to the payments to which the appellants were entitled, they brought an action against the respondent before the Supreme (2) 4 Ex. 500. (3) 21 L.J. Q. B. 274. (4) 8 E. & B. 161. (5) 5 M. & W. 483. (6) L.R. 1 Ex. 251. (9) 8 M. & W. 856. |