EXCHEQUER CHAMBER.

EASTER TERM.

Appeal from the Court of Queen's Bench.] "Before ERLE, C. J., POLLOCK, C. B., WILLIAMS, WILLES, and KEATING, JJ., BRAMWELL and CHANNELL, BB.

HOLDSWORTH . WILSON.-May 9. Arbitration—Appointment of umpire-Public Health Act, 1843, gert. 125-Taxation of costs-Condition precedat in bringing action.

Arbitrators appointed under the Public Health Act, 1848, soy, sader the 125th section, make a valid appointment fan umpire, although they have allowed twenty-one ys to expire without entering on the reference, provided Ley make such appointment before the expiration of three months from the date of the appointment of the kst-appointed arbitrator.

An action may be brought for the costs awarded by the are, under the 127th section of the Public Health A4, 1848, before the amount of such costs has been ascertained by taxation.

This was an appeal by the defendant against the decision of the Court of Queen's Bench in favour of the plaintiff.

In or about the year 1856, the provisions of the Public Health Act, 1848, were adopted by the inhabitants of West Ham, and the parish of West Ham was constituted a district for the purposes of that act. In the course of the years 1859 and 1860, the local board health, acting for the district, constructed under the powers of the said acts, extensive sewerage works, in so doing, damaged, as the plaintiff alleged, a tosc and other property belonging to the plaintiff, and situated within the district. A claim was then made upon the local board of health for the alleged damage, and, upon a question arising as to the amount ct damage, Mr. Hammach was on the 10th August, I appointed by the plaintiff, in accordance with the provisions of the said Public Health Act, 1848, as in arbitrator, to decide the question of amount, and on the 14th August, Mr. Marshall, the salaried surveyer of the board, was duly appointed by the said local board as their arbitrator, for the same purpose. The arbitrators thus appointed had some correspondcnce with reference to the appointment of an umpire, bat they did not extend the time for making their sward, and nothing further was done by the arbitrars under the reference until the 26th October, 1860, Then the plaintiff served upon each of the arbitrators the following notice :

You are hereby required to appoint an umpire, mant to the Public Health Act, 1848, within seven from the service thereof, in the dispute between West Ham Local Board of Health and Joseph EdTed Holdsworth. Dated this 26th day of October, "Yours, &c.

"T. OLIVER, Solicitor for J. E. Holdsworth." the 31st October following, the arbitrators met, Appointed Mr. Tite as an umpire, by an instruEr, of which the following is a copy :—

The West Ham Local Board of Health and J. E. worth.--We, the undersigned, the arbitrators Dated and appointed by and on behalf of the re-tamed parties respectively, do hereby, before ring upon the matters referred to us, nominate and int W. Tite, if a surveyor, to be our umpire, ac

See case in the court below (8 Jur., N. S., 672), nom. Blisworth v. Barsham.

cording to the provisions of the Public Health Act, 1848. As witness our hands, this 31st day of October, 1860. "J.G. B. MARSHALL. "J. G. HAMMACH."

Mr. Marshall received no instructions from the local board of health to appoint an umpire. The local board did not in any way authorise or sanction the appointment of an umpire. On the 12th November the arbitrators met, when the solicitor and clerk to the local board, in the presence of the attorney for the plaintiff, objected to and before the arbitrators, that their powers as such had ceased, as they had not extended the time for making their award, as directed by the statute in that behalf. The said arbitrators, upon hearing such objection, declined to proceed with the arbitration, the attorney for the plaintiff protesting against the objection. The umpire, Mr. Tite, accepted the umpirage, and, having extended the time for making his award, and having viewed the premises where the damage had occurred, appointed the 3rd January, 1861, as the day on which he proposed to proceed with the reference, of which appointment notice was given to both parties. In accordance with this appointment, Mr. Tite, having first duly made the declaration required by the statute, proceeded with the reference ex parte, and made his award on the 16th January, 1861, by which he awarded that the amount of compensation to be made to the plaintiff for the damage sustained was the sum of 180l. 14s. 7d., and he also awarded that the costs of the reference should be paid by the local board. On the 31st January, a copy of cations were subsequently made to the local board for this award was served upon the defendant, and applipayment of the amount awarded, as well as for the

amount of 144l. 38. 5d., the amount claimed by Mr. Oliver, the plaintiff's attorney, for costs. The bill of to the local board, on the 6th February, 1861, before costs, which was delivered to Mr. Barsham, the clerk this action was commenced, contained, amongst other items, a charge of 201., which was demanded by, and paid to, Mr. Tite as the costs of his award. The plainhave not in any way been ascertained, or taxed, or tiff's costs of, and consequent upon, the said reference, fixed by Mr. Tite, or any taxing officer or person havrefused to pay the amount awarded for the compensaing authority. The only ground on which the board tion is, that the appointment of the umpire was void, inasmuch as the powers of the arbitrators to make it had expired before the 31st October. Mr. Barsham died, and was succeeded in office by the present defendant, between the time of giving judgment in the court below, and of bringing the appeal.

The Court of Queen's Bench held, on the authority of Bradshaw's case (12 Q. B. 562), that the appointment of umpire was valid, and that the award was good; and that no action would lie before the amount of the costs had been ascertained. (See the case reported in the court below, Holdsworth v. Barsham, 8 Jur., N. S., 672).

Collier and Prentice, for the defendants, contended that the appointment of the umpire was void, it having been made after the power of the arbitrator to make the award had expired; that the arbitrators had twenty-one days to make their award, and that if they required further time, they ought to have extended the time; that Bradshaw's case (12 Q. B. 562) was not law, and had been questioned in the court below. They contended, secondly, that no action would lie until the costs of the award had either been taxed or ascertained.

Garth (Hawkins with him) contended, that the appointment of umpire was good, and relied on the following passage from Russell on Awards, 217, 1st ed.

"When the submission makes no special provision respecting the time when the arbitrators are to appoint the umpire, and a day is given to the umpire subsequent to that limited for the arbitrators making their award, they may appoint an umpire at any time before the time for making the umpirage had expired; for the power of appointing an umpire is quite collateral to that of making an award, and survives when the latter power is extinct." (Harding v. Watts, 15 East, 556). Secondly, he contended, that by sect. 127 of the act of 1848, costs were in the discretion of the umpire, and that the action could be brought subject to the taxation of costs by the Master*.

ERLE, C. J.-One question which arises in this case is, whether there has been a valid appointment of an umpire. The plaintiff had a claim against the West Ham Local Board of Health for compensation under the Public Health Act, 1848, and in order to ascertain the amount of such compensation, certain arbitrators were appointed under the act to assess the amount of damages; and they, before they entered on the reference, were bound to appoint an umpire; and by the terms of the statute the arbitrators were to make their award within twenty-one days after the appointment of the last arbitrator. One of the arbitrators was appointed on the 10th August, and the other on the 14th; and by implication it is said, that they were bound to nominate an umpire within twenty-one days of their own appointment. The Legislature, it seems to me, has expressly provided for the neglect or refusal of the arbitrators to appoint an umpire; for either party can, after giving a seven days' notice to the arbitrators to appoint an umpire, if they still refuse to do so, go to quarter sessions and get an umpire appointed. It is said that such a decision would, in effect, be extending the power of the arbitrators to appoint an umpire for an indefinite time. But this It has long been held, that where arbitrators are to appoint the umpire, they may do so at any time before or after the time limited for making their award, provided that the appointment is within the time allowed for making the umpirage; and it has been held, that during that time the arbitrator, although he cannot make an award, is not functus officio

is not so.

*The following sections of the Public Health Act, 1848, were referred to by the Court and counsel during the argu

ment:

"125. That in case there be more than one arbitrator, the arbitrators shall, before they enter upon the reference, appoint, by writing under their hands, an umpire; and if the person appointed to be umpire die, and become incapable to act, the arbitrators shall forthwith appoint another person in his stead. . . . And in case the arbitrators neglect or refuse to appoint an umpire for seven days after being requested so to do by any party to the arbitration, the court of general quarter sessions shall on the application of any such party appoint an umpire.

.....

for the purpose of appointing an umpire. Wet in this case, that between the twenty-one days an end of the first three months from the appointme the arbitrators, the parties can call upon the ar tors to appoint an umpire. If this be so, the tim making the umpirage never can be extended be six months from the time of appointing the ar tors. The Court below, it is said, decided the p case on the authority of Reg. v. Bradshaw, intim that they considered themselves bound by that I believe that decision to be perfectly correct that case the appointment of the umpire wa made by the arbitrators, but by the Board of The facts of the case are not so correctly report the statement of the case as they are in the judgi and if the facts be taken from the judgment, be seen, that before the twenty-one days had ex the arbitrators had been called upon to appoi umpire, and had failed to do so; and then, in p ance of the statute, the Board of Trade had applied to, and had appointed an umpire. We a of opinion that the judgment of the Court ought to be affirmed in respect of this being a umpirage.

With respect to the other point, viz. that the awarded by the umpire were not taxed before commencement of the action, our opinion is con to that of the Court below. We are of of that the award is valid, for the compensation ass and the costs to be paid. Under the clauses Public Health Act and the Lands Clauses Act, trators have authority judicially to award costs doubt, in one sense, the action is for an u tained debt; but it is a liquidated claim, in the that it can be ascertained at any time by the going before the Master. The duty of the Ma ascertain the amount of the costs being a mini act, it is not a condition precedent to bringi action. The right to the costs vested in the pl the moment the award was made, but the a must be ascertained at any time before judgme

Therefore, our judgment is, upon the first poin the umpirage is valid; and upon the second poin the costs are due. The judgment of the Court must be reversed on the question of costs, and af as to the other. The costs of this appeal to b by the appellants.-Judgment accordingly.

bitrators 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 shall have been duly appointed by them for that purpose, the matters referred shall be determined by the umpire; and the provisions of this act with respect to the time of making an award, and with respect to extending to the same in the case of a single arbitrator, shall apply to an umpirage.

"126. Provided always, that the time for making an award under this act shall not be extended beyond the period of three months from the date of the submission, or from the day on which the umpire shall have been appointed (as the case may be).

"127. reference shall be in the discretion of the arbitrators or arbitrator or of the umpire (in case the matters referred are determined by an umpire under the power herein before contained in that behalf).”

And the costs of, and consequent upon, the

By the 10 Geo. 4, c. lxxii, s. 27 (local and per it is provided, that if the commissioners for co the act into operation, or any company or person m furnishing, or supplying gas within the limits of shall drain any substance, in the prosecution of a works, into any river, whereby the water is spoi every such case the said commissioners or other aforesaid shall forfeit and pay for every such the sum of 2001., and such penalty may be recove an action of debt by any person who shall inform The Gas-works Clauses Act, 1847 (10 & 11 Vict. incorporated by the Croydon Gas and Commercia Act (10 & 11 Vict. c. cxxiv), provides, that if the takers of gas works shall suffer substances used in n gas to flow into any stream, whereby the water is

such undertakers shall forfeit for such offence the sum of MAL; such penalty to be recovered by the person whose water is fouled:-Held (affirming the judgment of the Court of Common Pleas), that the penalties are not cumulative.

Error from a judgment of the Court of Common Pleas on demurrer. Declaration, for that the defendants, within six calendar months next before the commencement of the suit, to wit, on the 2nd August, 1861, they then being persons making, furnishing, and supplying gas, ned and burnt for lighting divers highways, streets, and houses, manufactories, buildings, and other premises within the limits of an act made in the 10 Geo. 4, intituled, “An Act for lighting, watching, and improving the Town of Croydon, in the County of Surrey; for providing Lodgings for the Judges, at the Assizes en in the said Town; and for other Purposes rehing thereto," did drain and convey, and caused and fered to be drained and conveyed, and to run and fow, divers washings and other waste liquids, substances and things which arose and were made in the prosecution of the said gas works, into certain rivers, brooks, and running streams, canals, reservoirs, aqueducts, feeders, ponds, and spring heads, and into divers drains, sewers, and ditches communicating with them, the said rivers, brooks, and running streams, canals, reservoirs, aqueducts, feeders, ponds, and spring heads; and did, and caused to be done, divers annoyances, acts and things to the water contained in them, whereby the water contained in them, and divers parts thereof, were spoiled, fouled, and corrupted, contrary to the form of the statute in such case made and providad; whereby and by force of the said statute, the defendants forfeited, and became liable to pay to the pabiff 2001, yet the defendants had not paid the sare, and the plaintiff claimed 2007.

Plea that the acts and things complained of, and each and every of them, were and was committed, and Happened after the passing and coming into operation of the Croydon Commercial Gas and Coke Act, 10 & 11 Vict. e. exxiv, and after the 1st August, 1849; and that the said acts and things, and each and every of then, were and are, and was and is, such and the like ace and things, act and thing, as are and is described and mentioned in the 21st section of the Gas-works Clauses Act, 1847 (10 & 11 Vict. c. 15), and no other; and that the plaintiff is not, and never has been, the person into whose water the washings, or other substantes produced in making or supplying gas in such act mentioned (being the washings and other waste quids, substances, and things, in the declaration menned), were conveyed or flowed, or the person whose water was fouled. Demurrer, and joinder in demurrer. The ground of demurrer was, that the plaintiff's

t to sue for the penalty given by the 10 Geo. 4, erii, is not taken away by the 10 & 11 Vict. c. cxxiv, incorporating the 10 & 11 Vict. c. 15; and that two penalties are cumulative.

The Court of Common Pleas, after argument, deliFed their judgment on the demurrer in favour of Redefendants.

, for the appellant.-The remedy is cumulae. The penalties are not one and the same. They the same in amount; but in the one case it is a common informer who recovers; in the other, it is the person injured. The two statutes were passed with ferent objects. The former statutes could not be repealed but by express words, or an enactment inCasistent with it. The consolidated statute has neither. [He cited Goldson v. Buck (15 East, 372).] Sir G. Honyman, for the respondent.-The intention of the Legislature, in passing the general statute, Fs to regulate the whole question. [Pollock, C. B

The tendency of modern legislation has been to put down qui tam actions.] The question is, whether the company is to pay a double penalty, when, if they had not incorporated the Gas-works Clauses Act, 1847, they would be liable only for one? [He cited Rex v. The Trustees of the North Leach and Witney Roads (5 B. & Ad. 978); The Great Central Gas Consumers' Company v. Clarke (11 C. B., N. S., 814); and Rex v. Pease and Others (4 B. & Ad. 30).]

POLLOCK, C. B.-I am of opinion that the judgment of the Court below was right. In the construction of a penal enactment, we should be careful not to carry it further than the actual words authorise; and when any doubt exists, an offender is to have the benefit of the doubt. The same principle applies to the construction of this statute, and to the construction of statutes imposing taxes. No doubt, that which is the reasonable construction is the right construction. The penalty in the consolidated statute is the same as in the private act. I think the Legislature did not intend to make the penalty cumulative, but only to change the person entitled to sue.

BRAMWELL, B.-I am of the same opinion. The consolidated statute creates a penalty of 2007., payable to any person whose water is injured. I think it clear that the penalty is only to be paid once. The Croydon Gas Act gives the penalty to a common informer. I think the consolidated statute only changes the person who shall sue. I do not see that we are bound to hold that the enactment in the private act is repealed. There may be cases where the penalty might be enforced under the private act; but I think it is clear that the penalty is not cumulative. The other judges concurred.-Judgment affirmed.

COURT OF QUEEN'S BENCH. SITTINGS AFTER TRINITY TERM. [Before CROMPTON and BLACKBURN, JJ.] WARD V. DAY and Others.-June 24. Lease-Forfeiture, waiver of—Election. The plaintiff, by indenture, granted to the defendants license to search for, get, and carry away, copperas stone and pyrites, found upon a certain part of a manor (of which the plaintiff was the lord), for the term of twenty-one years, from the 24th June, 1843, and at the yearly rent of 251., payable half-yearly, on the 24th June and the 25th December; proviso, that if any part of the said rent should be in arrear for twenty-one days next after either of the said days of payment, it should be lawful for the plaintiff, by notice in writing, to determine the grant. On the 27th March, 1858, the plaintiff distrained for five and a half years' rent of the said license, up to the 25th December, 1857; the consequence of which was, an action against him by the present defendants as for an illegal distress, and judgment was suffered to go by default. In May and June, 1848, negotiations for the settlement of the action took place, which was effected upon the terms (inter alia), that the plaintiff should, on the 24th June, 1864 (the day on which the said license would expire), grant a fresh one to one of the defend-· ants for a further term of twenty-one years. Subsequently the plaintiff refused to carry out this arrangement, and upon the 3rd July, 1858, caused a written notice to be served upon the defendants, that rent being in arrear, within the terms of the proviso in the deed, he (the plaintiff) determined the grant:-Held, upon a special case, in which the Court were to draw inferences of fact, that the distress, though illegal and void, was, nevertheless, an expression of the plaintiff's election; that the relation between himself and the defendants, of whatever nature it might be, should continue; and that evi