PRIV. Co.] COUNTY ESTATES COMPANY v. GRAVES. betting, for slips of paper were provided, on which persons who intended to bet wrote the names of the horses they wished to stake their money upon, wrapping up in the slip the sum of money they wished to stake. The usual practice seems to have been that the person desiring to bet, after writing the name of the horse and wrapping up the stake, went outside the public-house and there handed over the slip with the stake wrapped up in it. But the jury expressly found that on two of the occasions in question the papers and stakes were handed to the defendant inside the bar. At the close of the case the counsel for the defendant made what I must characterise as a very extraordinary submission, that there was no evidence to go to the jury of the defendant using a place for the purpose of betting with persons resorting thereto, although there was evidence of his using a place for the purpose of money being received as the consideration for an undertaking to pay thereafter money on an event relating to a horse race. In other words, the submission was that the defendant had used the place for the purpose of receiving money, for bets-had, in fact, carried on ready-money betting. The Act of Parliament says: [His Lordship read sect. 1 of 16 & 17 Vict. c. 119, which will be found in the report of Reg. v. Brown, ante, p. 24.) Of the two clauses of the section the first covers the use of a place for betting, whether of the kind known as readymoney betting or not. The second clause is pointed more directly at ready-money betting. For my part I should not hesitate to hold, and I think that the rest of the court would hold, that if a man goes to a house for the purpose of receiving money from persons on account of bets, he is using the house for the purpose of betting with persons resorting thereto, whether the money is actually received inside the house or outside. It is not necessary to refer to the case of Bond v. Plumb further than to say that it is no authority in favour of the defendant, and that there is an offence under sect. 1 of the Act, whether the user of the place is for the purpose of betting with persons resorting thereto or for the purpose of receiving deposits of money for the purpose of betting. The question here is, whether there was any evidence to go to the jury on the first, third, and fifth counts. If there was such evidence the conviction is to stand. We are clearly of opinion that there was ample evidence, and that the conviction must stand. Conviction affirmed. [PRIV. CO. The appellants, who were owners of a large landed estate, sold a portion to the respondent. The portion so sold was less than the quantity liable to land tax. By the conditions of sale "all rates and other outgoings" were to be "adjusted as usual." Held (affirming the judgment of the court below), that the respondent was not liable to repay a proportionate amount of the land tax in respect of the land purchased by him, it not being an outgoing which would enure to his benefit when he became owner, but one the liability to which would then determine. THIS was an appeal from a judgment of the Supreme Court of Victoria (Higinbotham, C.J., A'Beckett, and Hood, JJ.), who had affirmed a judgment of Webb, J. in favour of the respondent, the plaintiff below, in an action brought for the specific performance of a contract for the sale to the plaintiff by the defendant of certain pieces of land. The case is reported in 17 Vict. L. Rep. 117, and 712. The facts appear sufficiently from the head-note above, and from the judgment of their Lordships. Crackanthorpe, Q.C. and E. Ford, for the appellants, argued that, as the appellants had been compelled to pay land tax in respect of their whole estate after the date at which the respondent had been let into possession of the part which he had agreed to purchase, in consequence of such part not having been severed from the whole, the proportion of the land tax attributable to that part was an "outgoing" which he was liable to repay under the conditions of sale. They cited Midgley v. Coppock, 40 L. T. Rep. 870; 4 Ex. Div. 309. The respondent did not appear, and the appeal was consequently heard ex parte. At the conclusion of the argument for the appellants their Lordships' judgment was delivered by Lord MACNAGHTEN.-This appeal has been argued before their Lordships ex parte. By the Land Tax Act 1877, which is now replaced by the Land Tax Act 1890, a land tax was imposed on owners of landed estates in Victoria of upwards of 640 acres in extent: the owner of an estate of less than that quantity is not liable to land tax. It seems that the trustees of one, John Hepburn, were the owners of a large property in Victoria, and were entered on the Land Tax Register in respect of it. The appellants contracted to buy about 2000 acres of the property from them, with the view of reselling in lots. They agreed to sell one lot of about 292 acres to the respondent. They therefore agreed to sell and the respondent agreed to buy a parcel of land, to the ownership of which no liability to land tax attached. The contract between the appellants and the respondent was dated the 14th Dec. 1887. Possession was to be given on the 17th March 1888, from which date interest was to run. A deposit was paid down, and the balance was payable when the title was procurable.' The contract states on the face of it that the property-that is the property offered for sale in lots-was being brought under the provisions of the Transfer of Land Statute," and that the vendors guaranteed the issue of a clean certificate of title. There was 66 66 PRIV. Co.] ZELMA GOLD MINING COMPANY v. HOSKINS. also a provision that "all rates and other outgoings' should "be adjusted as usual." On the 17th June 1890 the appellants gave the respondent notice that they were ready to settle, but they refused to complete unless the respondent would consent to bear a proportionate part of the land tax which Hepburn's trustees had paid, and in respect of which under some arrangement, the particulars of which are not stated, the appellants had agreed to indemnify Hepburn's trustees so far as the payment was attributable to the property which they had contracted to buy. The respondent refused to submit to the appellants' demand, and this suit was then brought to try the question. The court of first instance and the full court have both decided against the appellants. Their Lordships think the decision perfectly correct. The claim of the appellants was originally presented in two ways. In the first place it was put on general principles. This ground seems to be neither more nor less than a vague notion that the payment was one in which the respondent was somehow or other interested. When the circumstances are examined it is plain that the payment of the appellants was made, either for their own benefit, or in pursuance of an obligation which they had undertaken, and which they had not transferred either in whole or part to the respondent. It was not made in any sense at the request of the respondent, or on his behalf. This ground was abandoned during the argument. The appellants were then forced to fall back on the provision in the contract with respect to outgoings. But the outgoings there mentioned are outgoings in respect of the property contracted to be purchased, not in respect of the larger property of which, in the hands of the vendors, it formed part. They are outgoings which would enure to the benefit of the purchaser when he became owner; not outgoings the benefit of which and the liability to which would be necessarily determined when once the purchase was completed. Their Lordships will therefore humbly advise Her Majesty that this appeal should be dismissed. Solicitor for the appellants. J. Harwood. Tuesday, Dec. 18, 1894. (Present: The Right Hons. the LORD CHAN- ON APPEAL FROM THE SUPREME COURT OF Arbitration-Law of New South Wales-Companies Act 1874 (37 Vict. No. 19), s. 113Arbitration Act 1892 (55 Vict. No. 32), s. 12. Where the court or a judge orders the issues in an action in which one of the parties is a limited company to be referred to an arbitrator, under sect. 12 of the Arbitration Act 1892, it is not necessary for the arbitrator, before entering on the reference, to make a declaration before a justice as required by sect. 113 of the Companies Act 1874, as that section refers only to a voluntary submission under the Act, not to a reference by order of the court. (a) Reported by C. E. MALDEN, Esq., Barrister-at-Law. [PRIV. CO. Judgment of the court below reversed. Trades and Industrial Institute v. Murray (11 N. S. W. L. Rep. 36) distinguished. THIS was an appeal from an order of the Supreme Court of New South Wales (Innes and Stephens. JJ.), making absolute a rule nisi to set aside an award by an arbitrator on a reference under a judge's order, made under sect. 12 of the Arbitration Act 1892 (55 Vict. No. 32), in an action brought by the appellants against the respondents for breach of contract. The arbitrator made his award in favour of the appellants with 9651. damages, but the respondents obtained a rule to show cause why the award should not be set aside on the ground that the arbitrator had not, before entering on the reference, made a declaration before a justice, as required by sect. 113 of the Companies Act 1874 (37 Vict. No. 19), and this rule was made absolute as above mentioned. Vaughan Hawkins (Cozens-Hardy, Q.C. with him) appeared for the appellants. Bigham, Q.C. and C. C. Scott for the respondents. At the conclusion of the arguments their Lordships' judgment was delivered by The LORD CHANCELLOR (Herschell). The appellants are a company incorporated under the Companies Act of 1874 (37 Vict. No. 19). On the 14th April 1893 they commenced an action against the respondents, claiming to recover damages for breach of a contract to supply water-tight pipes to their mine. The action was pending for trial, when on the 13th July 1893 an order was made by the chief justice, under the 12th section of the Arbitration Act of 1892 (55 Vict. No. 32), referring the issues in the action to Mr. Henry Skinner Forsyth as arbitrator. The arbitrator heard the case for several days, and on the 18th Aug. 1893 made his award, whereby he directed the respondents to pay to the appellants the sum of 9651. The appellants being about to move to enter judgment, the respondents on the 26th Aug. obtained from the court a rule nisi calling upon the appellants to show cause why the award should not be set aside, on the ground that the arbitrator had not, before entering on the reference, made a declaration before a justice, as required by sect. 113 of the Companies Act of 1874. The rule was argued before Innes and Stephens, JJ. Innes, J. was of opinion that the rule should be made absolute. Stephens, J. concurred, though not without hesitation. The 12th section of the Arbitration Act 1892 empowers 'the court or a judge in any cause or matter (other than a criminal proceeding by the Crown) . . . to order the whole cause or matter, or any question or issue of fact arising therein, to be tried before an arbitrator agreed upon by the parties, or before a referee appointed by the court or a judge for the purpose," in the following cases, "(a) if all the parties interested who are not under disability consent; (b) if the cause or matter requires any prolonged examination of documents or any scientific or local investigation which cannot in the opinion of the court or a judge conveniently be made before a jury or conducted by the court through its ordinary officers; (c) if the question in dispute consists wholly or in part of matters of account.' The order in question was made under the first of those provisions, all the parties interested consenting. The question to be deter PRIV. CO.] ZELMA GOLD MINING COMPANY v. HOSKINS. 66 mined is, whether in such a case as this the provisions of the Companies Act 1874 are applicable, so as to require that the arbitrator before entering upon his duties should make the declaration prescribed by the 113th section of that Act. The 102nd section of that Act empowers any company "by writing under its common seal" to agree to refer any difference to arbitration, The 103rd section provides as follows: "Whenever any dispute authorised by this Act to be referred to arbitration shall have been in manner herein. before provided agreed to be so referred, and wherever any dispute directed by this Act to be so referred shall have arisen, then except where and so far as the parties to such reference shall otherwise agree or provide such arbitration shall be conducted in the manner, and shall have the effect hereinafter provided." The Act then prescribes the manner in which the arbitration is to be conducted, provided the parties have not otherwise agreed. Then comes the 113th section, which is in the following terms: Before any arbitrator or umpire shall enter into the consideration of any matters referred to him, he shall, in the presence of a justice make and subscribe the following declaration (that is to say): 'I, A. B. do solemnly and sincerely declare that I will faithfully and honestly, and to the best of my skill and ability, hear and determine the matters referred to me under the provisions of the Companies Act." This is the declaration which, according to the contention of the respondents, the arbitrator ought to have made in the present case. But the first observation which arises is, that such a declaration is in terms inapplicable to an arbitration under the 12th section of the Arbitration Act. The arbitration provided for by the Companies Act is a voluntary arbitration, in which, according to the terms of the 102nd section, there is a submission by the company, by writing under its common seal. In the present case there was no such submission, and the 103rd section, which has reference only to disputes "in manner hereinbefore provided" agreed to be referred, consequently does not apply, with the result that the 113th section is also inapplicable. The reference in question was a reference of an action, or of issues in an action, then pending in court. It was really a substitute for the trial of the action. It has been contended by counsel for the respondents that sub-sect. (a) of the 12th section of the Arbitration Act is not applicable to the case of an action where a company is one of the parties, and that such an action can only be referred if the company make a submission under their seal. The learned counsel felt a difficulty in contending that sub-sections (b) and (c) were inapplicable to companies, and he confined his contention to subsection (a). But there seems to be no more foundation for the contention that the submission must be under seal in the case of the first provision than in the case of the other two. It has never been regarded as necessary, where the consent of a company in a legal proceeding, or in a step in a legal proceeding, is necessary, that such consent should be by a document under seal. Those who represent the company in an action may, for the purpose of a provision of this kind, give the consent as effectually as if it were given by an instrument under seal. The 12th section of the Arbitration Act is, in their Lordships' opinion, as applicable to an action, one of the parties to [PRIV. CO. which is a company, as it is to any other action. Therefore that point, which was not apparently taken in the court below, does not appear to their Lordships to have any solid foundation. Stress was laid by the learned judges below upon the provisions of the 24th section of the Arbitration Act, which enacts that the Arbitration Act shall apply to every arbitration under any Act passed before or after the commencement of that 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." But the only effect of that section is to apply the arbitration provisions to arbitrations under any other Act, as, for example, arbitrations under the Companies Act, except so far as the arbitrations under those Acts are conducted pursuant to statutory provisions inconsistent with the provisions of the Arbitration Act. Its effect is in no way to introduce into arbitrations under the Arbitration Act any of the provisions for arbitration contained in any of the other Acts, such as the Companies Act. The only authority referred to, which was one regarded by Innes, J., as governing this case, was the case of The Trades and Industrial Institute v. Murray and Lenchan (11 N. S. W., L. R. 36), decided by the Supreme Court in 1890. That was a case where a company and two individuals entered into a contract, one of the conditions of which provided for the reference of any difference to arbitration. A dispute having arisen, a submission to arbitration was made, and an award followed. The award was set aside by the court, on the ground that the arbitrator had not subscribed the declaration required by the 113th section of the Companies Act. But the present case seems to their Lordships to be a totally different one, inasmuch as the reference does not depend upon the submission of the company, but upon the order of the judge referring the action. Although the consent of the company may have been a necessary condition to that order being made, when once it was made it was the order of the judge which was the foundation of the arbitration proceedings, and not the submission by the parties. For these reasons their Lordships are of opinion that the rule absolute should be set aside, and the rule nisi discharged, with costs, and they will so advise Her Majesty. The respondents must pay the costs of this appeal. Solicitors for the appellants, Want and Co. Fox. CT. OF APP.] MEUX BREWERY Co. v. CITY OF LONDON ELECTRIC LIGHTING CO. [CT. of App. Supreme Court of Judicature. COURT OF APPEAL. Nov. 23, 26, and Dec. 18, 1894. (Before Lord HALSBURY and LINDLEY and SMITH, L.JJ.) MEUX BREWERY COMPANY LIMITED v. CITY OF LONDON ELECTRIC LIGHTING COMPANY LIMITED. SHELFER V. THE SAME. (a) APPEAL FROM THE CHANCERY DIVISION. Nuisance-Statutory powers-Electric lightingNoise-Vibration-Structural damage-Lessee and reversioner-Right to injunction-Electric Lighting At 1882 (45 & 46 Vict. c. 56), ss. 10, 17 -Practice Appeal Relief claimed partly refused and partly granted-Claim for injunction dismissed, but damages granted-Time for appealing-Order LVIII., r. 15. Although the court has jurisdiction under Lord Cairns' Act to award damages instead of an injunction in cases of continuing actionable nuisances, such jurisdiction ought not to be exercised in such cases except under very exceptional circumstances. An electric lighting company, which carried on its undertaking under the provisions of certain Acts of Parliament and provisional orders made thereunder, caused a serious nuisance to the lessee of a house by the noise and vibration arising from the use of the machinery used for generating the electricity, the vibration being such as to cause cracks in the walls of the house. Held, that sects. 10 and 17 of the Electric Lighting Act 1882 refer to the execution of works, and not to the use of works when executed; and that the defendants were not expressly empowered by the Acts of Parliament and the provisional orders to cause a nuisance in carrying on their undertaking, and were therefore liable if they caused a nuisance. Decision of Kekewich, J. (70 L. T. Rep. 762) affirmed. Held also, that the nuisance was such that the lessee was entitled to an injunction restraining its continuance; that the actual and prospective permanent structural injury to the house entitled the reversioners to an injunction on the same terms; and that it was a case in which the court ought not to grant damages only under Lord Cairns' Act. Decision of Kekewich, J. reversed. An action was commenced claiming an injunction restraining the continuance of a nuisance and damages. The injunction was refused with costs, but an inquiry was directed as to damages, the plaintiffs to pay the costs so far as they related to the claim for injunction, and the defendants so far as they related to the claim for damages. Held, that the decision was not a mere refusal of the relief claimed, and that the time for appealing against the order commenced from the date it was drawn up, and not from the date the judgment was pronounced. THESE actions were brought by the plaintiffs, the Meux Brewery Company Limited, the freeholders, (a) Reported by W. C. Biss, Esq., Barrister-at-Law. and Shelfer, the leaseholder, of the Waterman's Arms, a public-house, situate at Bankside, on the river Thames, against the defendants, the City of London Electric Lighting Company Limited, for an injunction to restrain them from the use of any dynamo or other engine or machinery so as by vibration or otherwise to injure the plaintiffs' premises, and as to the plaintiff Shelfer, the leaseholder, from causing a nuisance by vibration or noise, and for damages. In March 1893 Shelfer took from the Meux Brewery Company Limited a lease of the Waterman's Arms for a term of twenty-one years, at the yearly rent of 701., and he also paid a premium. He had previously been a yearly tenant of the public-house. In 1891 the Meux Brewery Company Limited put the house and premises in thorough repair. At the end of 1891 the defendants acquired land adjacent to the public-house, and erected thereon sheds, engine houses, a shaft, and all the buildings and machinery necessary for forming a large central station for the purpose of supplying electric light over a considerable area in the metropolis. Foundations for the works were sunk from 25ft. to 30ft. below the surface of the ground, and engines of 500 and 1000 horsepower were fixed in position and commenced to work. At the trial numerous witnesses were called on behalf of the plaintiffs, and it appeared from the evidence that until Oct. 1893 the noise and vibration arising from the working of the engines was not noticeable, but that in that month the working of the engines began to cause the rooms, furniture, and bedsteads to vibrate, so as to interfere with the sleep, comfort, and health of the occupiers, two of the witnesses stating that the vibration caused actual sickness. A crack also appeared in the wall, which, in March 1894, extended through two storeys, and measured two inches wide in some places, while a hearthstone in one of the upper rooms became displaced. It was found, too, that the house, which before had a list to the east, now settled towards the west, the defendants' side of the premises. The defendants admitted that some noise arose from their exhausts, but undertook to abate it, but they denied that the crack was caused by their operations, and stated that the vibration was trivial. Kekewich, J. held (70 L. T. Rep. 762) that. though the defendants were guilty of a nuisance. it was a case in which, in the exercise of his discretion under Lord Cairns' Act, he ought not to grant an injunction, but only damages in both actions, and he dismissed the freeholders' action, so far as it asked for an injunction, with costs. From this decision the plaintiffs in both actions appealed. The appeal of Shelfer was heard first. Warmington, Q.C., Borthwick, and Waggett for the appellant.--The appellant is entitled to an injunction, Kekewich, J. having found that there was a nuisance. It must be admitted there is nothing in Lord Cairns' Act (21 & 22 Vict. e. 27), s. 2, which limits the power of the court to grant damages in lieu of an injunction, but the discretion of the court must be exercised in accordance with the usual practice. An injunction has never been refused and damages given in lieu thereof in these cases, except in the case of a mandatory injunetion, or where there was some kind of personal estoppel against the plaintiff. There are fourteen cases in the books which show this, commencing CT. OF APP.] MEUX BREWERY Co. v. CITY OF LONDON ELECTRIC LIGHTING CO. [Cт. of App. with Isenberg v. The East India House Estate Company Limited (9 L. T. Rep. 625; 3 De G. J. & S. 263), the last case being Martin v. Price (70 L. T. Rep. 202; (1894) 1 Ch. 276). [They were stopped by the Court.] Moulton, Q.C., Renshaw, Q.C., and W. C. Braithwaite for the defendants.-Kekewich, J. exercised the discretion given to him by Lord Cairns' Act, and gave damages in lieu of an injunction, and this court will not interfere with the exercise of that discretion. Martin v. Price (ubi sup.) was a case of ancient lights, which is different to a case like the present. In Viscountess Gort v. Clark (18 L. T. Rep. 343) an injunction restraining a nuisance from noise and vibration was refused and damages granted instead. In Holland v. Worley (50 L. T. Rep. 526; 26 Ch. Div. 578) damages were granted in lieu of injunction. [LINDLEY, L.J. referred to Stokes v. The City Offices Company, 13 L. T. Rep. 81.] Lord Cairns' Act is, in fact, repealed by 46 & 47 Vict. c. 49, though by virtue of sect. 5 that has not affected the jurisdiction of the court: Sayers v. Collyer, 51 L. T. Rep. 723; 28 Ch. Div. 103. But the appellant is not entitled to any relief at all. It was not necessary for the defendants to put in a cross-notice of appeal in order to be able to raise this point. The plaintiff asks for larger relief than he obtained in the court below, and the defendants are entitled to resist that claim by all means in their power. By virtue of the Electric Lighting Acts of 1882 and 1888, and the Provisional Orders made thereunder, and the Electric Lighting Orders Confirmation (No. 15) Act 1890, the defendants have a duty as well as power to supply electricity in their district. The defendants cannot give up their business even if they wish, and if a nuisance is caused to the plaintiffs in carrying out this duty they cannot stop the defendants carrying on their works. Sect. 10 of the Act of 1882 provides that the undertakers may "construct such works 66 A .. and generally do all such acts and things as may be necessary and incidental" to the supply of electricity; and, by sect. 32, a very wide interpretation is given to the word works." generating station is necessary to supply electricity, and it must be within the district. Then sect. 17 of the Act of 1882 provides, in wide terms, that all persons shall be compensated for any damage they may suffer. This shows that the defendants may do actionable wrong. If the defendants can justify what they have done under the Act, their powers cannot be decreased by anything in the provisional orders. The defendants are using this land for a purpose authorised by their Acts; they have done all that care and skill can effect to prevent a nuisance; they are in the same position as a railway company, and the plaintiffs have no remedy if they suffer from a nuisance : The London, Brighton, and South Coast Railway National Telephone Company v. Baker, 68 L. T. LINDLEY, L.J. referred to Imperial Gas Light and Coke Company v. Broadbent (7 H. L. Cas. 600). Lord HALSBURY referred to The Hammersmith and City Railway Company v. Brand, 21 L. T. Rep. 238; L. Rep. 4 E. & I. App. 171.] Warmington, Q.C. in reply.-The defendants can only exercise the powers given to them subject to the restrictions contained in the Acts and Orders: Attorney-General v. Leeds Corporation, 22 L. T. Attorney-General v. Gas Light and Coke Company, Sect. 82 of the City of London Electric Lighting (Brush) Order 1890, which is confirmed by the Confirmation Act of 1890, provides that nothing in the order shall exonerate the undertakers from any indictment, action, or other proceedings for nuisance, in the event of any nuisance being caused by them. The appeal of the Meux Brewery Company was then heard. Renshaw, Q.C. for the defendants.-This appeal is out of time. It is an appeal against a decision simply dismissing the action with costs so far as an injunction was claimed; and therefore notice of appeal ought to have been given within three months from the date of the refusal, viz., the 19th April, and not from the date of perfecting the order, viz., the 9th Aug. Order LVIII., r. 15. These are really two applications, though joined in one action : Trail v. Jackson, 4 Ch. Div. 7; The International Financial Society v. The City of Berdan v. Birmingham Small Arms and Metal Company, 37 L. T. Rep. 588; 7 Ch. Div. 24. Warmington, Q.C., Borthwick, and Waggett, for the appellants, were not called on. Lord HALSBURY.-In Trail v. Jackson (ubi sup.) there were separate claims, although joined in one summons, while in this case there is only one cause of action, though it gives rise to two alternative or concurrent remedies. This case is within the principle pointed out by James, L.J. in The International Financial Society v. The City of Moscow Gas Company (ubi sup.), where he said: "Where it is necessary for any purpose, in order to enable a man to see what he is appealing from, that the judgment or order should be perfected, so that he may see exactly which is the final form which it takes, and by which he may be aggrieved; then he has a twelvemonth from that time to consider his appeal. But where the application for final judgment or order is simply refused, although refused with costs, he knows exactly the fate of his application, and then he has a twelvemonth from the time at which he knows that the order with which he is dissatisfied has been made." In this case the plaintiff's succeeded in obtaining one of the remedies to which they were entitled, and I think they were entitled to see the exact form of the order before appealing. It would not be right that when a complicated order was made refusing part of the relief asked for and granting a part, that a litigant should be obliged to say at once whether he would appeal or not. When he sees the exact order he may not think it necessary to appeal. LINDLEY, L.J.-I agree. I think we ought to take a practical view of this point. If the relief asked is merely refused, the plaintiff knows at |