Q.B. Div.]

May 8 and June 6, 1883.

(Before DENMAN and HAWKINS, JJ.)

SMITH (app.) v. The Mayor, &c., OF BIRMINGHAM

(resps.). (a)

Water rate-" Annual rent"-Houses let to weekly tenants-" Voids," deduction for-Owner paying rates-Composition for―Deduction on account of -Birmingham Waterworks Act 1855 (18 Vict. c. xxxiv. 8. 83).

S. was the owner of certain houses in the town of B., which were let to weekly tenants at weekly rents, S. paying all rates, &c., charged upon the premises, including the charge for water, and also paying for all repairs, insurances, &c., in respect thereof. The houses were supplied with water by the corporation of B., and by sect. 83 of the B. Waterworks Act 1855 they can charge the following rates: "Where the annual rent of the house, or part of a house or premises, supplied shall not exceed 51., the yearly rate of 68.," and so on, the rate increasing with the increase in the annual rent, and ending as follows: "Where such annual rent shall exceed 501., at a rate not exceeding 6l. per cent. on the amount of such annual rent." S. was rated to the poor rate instead of the occupiers, and was allowed a deduction of 30 per cent. from the full rate, and was voluntarily rated to the water rate. Held, that, in determining what was the "annual rent" of these houses, upon which the water rate was to be charged, S. was entitled, besides the deduction for rates, to have a further deduction made on account of "voids," i.e., the estimated loss owing to the houses, or any part of them, being unlet, but that in deducting the rates, he was only entitled to a deduction of the amount of the composition paid by him, and not to a deduction of the full rates, which would be payable by the tenants if they paid them. Held, also, that the words "annual rent" did not 66 net annual rent' "rateable value," but "gross estimated rental." THIS was a case stated by the stipendiary magistrate for Birmingham.

mean

or

A summons was taken out by the appellant against the respondents, under sects. 68 and 85 of the Waterworks Clauses Act 1847, to determine a dispute which had arisen as to the "annual rent," within the meaning of sect. 83 of the Birmingham Waterworks Act 1855 and the Birmingham Corporation Water Act 1875, of certain houses the property of the appellant, which had been supplied with water by the respondents.

The houses in question were let at weekly sums varying from 28. 74d. to 5s. 6d., which were the full payments obtainable for them on the terms upon which they were let, and such houses were supplied with water by the corporation. These weekly sums were the only payments made by the tenants in respect of the premises under any circumstances.

The magistrate dismissed the summons, intimating, however, an opinion, that the appellant was entitled to a deduction on account of "voids."

The opinion of the court was asked as to whether the appellant was entitled to any, and if so, to which, of the deductious claimed by him.

The contention on the part of the respondents, (a) Reported by W. P. EVERSLEY, Esq., Barrister-at-Law.

[Q.B. DIV.

and the various contentions and claims for deductions on the part of the appellant, and the facts and the statutes bearing on the case, are fully set out in the judgment.

Hugo Young for the appellant.-(The arguments are fully stated in the judgment, with the exception of the following, which alone it is necessary to set out.)-As to the amount which ought to be deducted from the rents paid by the tenants for rates and taxes, the full amount of such rates and taxes, if payable by the tenants, ought to be deducted, and not merely the amount paid by the landlord under the terms of his composition. The landlord compounded for the rates and taxes, and an allowance of 30 per cent. was made to him. The composition is made between the landlord and the corporation, and is founded on the basis that the landlord takes the risk and expense of collecting the rates, and the risk of his houses being empty during some part of the year; and so in consideration of these risks and expenses the landlord is allowed a deduction of 30 per cent. The tenant is not interested in the arrangement in any way. The corporation have only allowed a deduction from the rents paid by the tenants of the amount of the composition. They ought to have allowed the full amount of the rates and taxes, if payahle by the tenants. Supposing a tenant pays the landlord 10l. a year as rent; this rent includes, say, 21. for the rates and taxes; but the landlord pays the rates and taxes, and compounds for them for the sum of 1l.; the corporation clearly ought to deduct the 21. from the rent of 101.; but, according to their contention, they would only deduct 11. The landlord, therefore, gets no benefit at all from the composition. He is in a worse position, owing to having compounded, because the house may be empty during part of the year, or the tenants may not pay. example, two houses of an exactly similar character, belonging to the same landlord, are let to tenants in the one case the landlord compounds and pays the rates and taxes; in the other case the tenants pay the rates and taxes: according to the contention of the corporation the "annual value" would be different in each case. He cited

Reg. v. Bilston, 35 L. J. 97, M. C.

For

Alfred Young (R. E. Webster, Q.C. with him) for the respondents.-The landlord is allowed under the statutes to compound, and he gets a certain deduction on account of his trouble and expense, and the losses he may sustain; but the statutes nowhere say that, in estimating the rent upon which certain charges are based, he can deduct more than the amount he actually pays. He cited

The Poor Rate Assessment and Collection Act 1869 (32 & 33 Vict. c. 41), s. 4, sub-sect. 2.

Cur, adv. vult. June 6. The judgment of the court was delivered by

DENMAN, J.-This was a case stated by the stipendiary magistrate for Birmingham, in order that the court might decide the proper mode of assessing the amounts payable by the appellant for water rates. The Corporation of Birmingham, the respondents, had vested in them by 38 & 39 Vict. c. clxxxviii. (the Birmingham Corporation Water Act 1875) all the powers and authority of the Birmingham Waterworks Company. The power and authority of the Birmingham Waterworks

Q.B. Div.]

Company as to the supply and charging for water is to be found in sect. 83 of 18 Vict. c. xxxiv. (the, Birmingham Waterworks Act 1855). By that section it is provided as follows: "The company shall at the request of the owner or occupier of any house or part of a house, in any street in which any pipe of the company is or shall be laid, or on the application of any person who under the provisions of this Act is entitled to demand a supply of water for domestic purposes, furnish to such owner or occupier or other person a sufficient supply of water for domestic use, at rates not exceeding the yearly rates hereinafter specified, that is to say: Where the annual rent of the house or part of a house or premises supplied shall not exceed 51. the yearly rate of 68." Then follows a scale increasing with the increase in the "annual rent," and ending as follows: "Where such annual rent shall exceed 501., at a rate not exceeding 6 per cent. on the amount of such annual rent.' The property in respect of which our opinion is desired consists of small houses, let at weekly sums on the terms that the appellant, who is the owner, pays all rates, taxes, and assessments of all kinds, charged upon or in respect of the premises including the charge for water, and pays for all repairs and insurances and other matters relating to the premises. He is rated to the poor rate instead of the occupiers under 32 & 33 Vict. c. 41, s. 4, and is allowed the deduction of 30 per cent. therein provided for; also to the borough and street rates under the Birmingham Improvement Act 1851 (14 & 15 Vict. c. xciii.), being allowed the deductions therein provided for (sect. 135). The appellant has been voluntarily rated instead of the occupiers to the water rates. The question for our determination is, what is the true meaning of the expression 'the annual rent" in sect. 83 of the Act of 1855?" The corporation charged the appellant on the following basis: They multiplied the weekly rents by fifty-two, and deducted from the amonnt so arrived at the actual sums paid by the appellant for poor and borough and street and water rates, and then charged the water rates in question upon the difference. The appellant claimed further deductions for insurance, repairs, and "voids." As to the last, we understand the case to mean that the stipendiary magistrate was willing to accede to that contention, but that, being in favour of the respondents on all other points, our opinion is desired as to the whole matter. The appellant further contended that the Public Health Act 1875 (which was passed nine days after the Birmingham Corporation Waterworks Act 1875) has superseded any provisions as to the mode of charging the water rates which are inconsistent with its provisions, and made the "net annual value" the amount upon which the water rate is to be assessed. He also contended that he was entitled by way of deduction, not only to the amounts actually paid by him under 32 & 33 Vict. c. 41, 3. 4, and the Birmingham Improvement Act 1851, s. 135, but the full rates which would be payable if the occupiers paid the rates. If this case were unaffected by the authority of decided cases, it might seem to admit of a short decision in favour of the respondents. Turning as it does upon the meaning of the words "annual rent," it is possible to arrive at the conclusion at which the stipendiary magistrate has arrived by an easy process. Having ascertained the actual

[Q.B. DIV.

amount of the weekly rents, he has multiplied these by the number of weeks in the year, intimating, however, that he is prepared to allow a proper deduction for "voids," and for the actual amounts paid by the appellant for rates. The balance so arrived at he holds, or is prepared to hold, to be the proper sum representing the "annual rent" within the meaning of the 83rd section, upon which it is admitted that the question mainly turns. In the case of Sheffield Waterworks v. Bennett (27 L. T. Rep. N. S. 199; L. Rep. 7 Ex. 409; aff., 28 L. T. Rep. N. S. 509; L. Rep. 8 Ex. 196) an action was brought by the plaintiffs for water rates for water supplied to houses of which the defendant was owner. The words of the clause regulating the amount to be paid for water required to be supplied were these: "At the following rate per annum; that is to say, where the rent of such dwelling-house, or part of a dwelling-house, shall not amount to 71. per annum, at a rate not exceeding 6 per cent. per annum on such rent," and so on. The dispute in that case was in substance whether the plaintiffs were entitled to charge a sum for water calculated at so much per cent. on the rents actually received, as the plaintiffs contended, or whether the true meaning of the word "rent" in the clause was "annual value; " that is to say, the annual value of the property ascertained by deducting from the proper rent those outgoings which the landlord pays, viz., poor rates, water rates, and district rates. The words there in question, "where the rent shall not amount to l. per annum seem to us to be undistinguishable for any purpose from the words of sect. 83 of the Act here in question, "where the annual rent shall not exceed 1.," and the words in that case, at a rate not exceeding 1. per cent. per annum on such rent," are practically the same as the words of sect. 83, "at a rate not exceeding 1. per cent. on the amount of such annual rent." So far, then. as concerns the allowance to the landlord of the amount of the rates paid by him, and so far as concerns the calculation of the annual value not being tied down to the actual rents received, we think that the case of Sheffield Waterworks Company v. Bennett is in the appellant's favour, and shows that the proper rental, not the actual rental, is the test, and that the proper rental is the amount which the landlord would put into his pocket after deducting the rates paid by him. But the appellant contends that, in deducting the rates paid by him, he is entitled to a deduction of the full amount to which such rates would be payable if paid by the tenants, and not by himself, i.e., to 30 per cent. more than the actual amount paid by him in respect of such rates. We cannot accede to this contention. The composition into which the appellant enters where he is voluntarily rated, and the percentage allowed by the statute to the landlord where he pays the rates under the provisions of the statutes, are calculated roughly with the view of compensating the landlord for the trouble he incurs, and the losses he may sustain, by payment of charges primâ facie payable by the occupiers of his property; and we do not think that the Legislature intended, nor has it anywhere provided, that in estimating charges which he has to pay he can deduct_in respect of such outgoings from the annual value upon which he is to be rated more than the sums which he in fact pays. We think that the

66

Q.B. Div.]

stipendiary magistrate was right in disallowing this deduction. The case of Reg. v. Bilston (35 L. J. 97, M. C.), which was cited to the contrary, turned wholly on the words of the Parochial Assessment Act, which authorised a deduction of the usual tenants' rates, and held that, when the landlord compounded, he was still entitled to deduct the usual amount paid by tenants where the tenants pay rates, in order to arrive at the net annual value of the premises within the meaning of 6 & 7 Will. 4, c. 96, s. 1. But inasmuch as, for reasons to be given presently, we do not think that that Act applies, we are left to decide the meaning of "annual rent" in sect. 83 without any assistance from Reg. v. Bilston. The appellant also contended that he was entitled to an allowance for "voids;" i.e., as we understand the word, that, inasmuch as the property is let at weekly rents, the proper "annual rent" was not the weekly rent multiplied by fiftytwo, but what, after making a fair calculation of the loss to the landlord by the want of tenants, incident to property of the kind let to weekly tenants, would be in practice the total value received in the year for the property in question. Here we think his contention is right, and we understand that the stipendiary magistrate is prepared to hold accordingly, and to vary his decision in that respect. But beyond these contentions the appellant has raised a question of greater importance, and which does not seem to have been expressly decided by the case of the Sheffield Waterworks Company v. Bennett, or any other case. His contention is that, in addition to the deductions for rates and "voids," he is also entitled to a further deduction for the annual average cost of repairs, insurance, and other expenses necessary to maintain the premises in a state to command the present weekly payments of the tenants; in other words, to have the water rate assessed upon the rateable value of the premises after making all the allowances required by 6 & 7 Will. 4, c. 96, s. 1, in the case of poor rates. Reverting to the words of the section with which we have to deal, they are, "where the annual rent of the house or part of a house supplied shall not exceed the yearly rate of ;" and, "where such annual rent shall exceed 501. at a rate not exceeding 6 per cent. on the amount of such annual rent." The arguments of the appellant may be stated shortly as follows: The question, being reduced to whether the words "annual rent" in sect. 83 of the Act of 1875 mean "net annual value," or gross estimated rental," is to be decided by reference to all the statutes relating to the water rates to be charged either by the corporation, or by the company whose rights the corporation has purchased; and, though some of these Acts are not now in force, they may be looked at for the purpose of putting a construction upon the words "annual rent " in sect. 83. The decisions also prior to the Parochial Assessments Act may be referred to, and throw light upon the subject. By a local and personal Act of 7 Geo. 4, c. cix., the Birmingham Waterworks Company were incoporated for the purpose of supplying Birmingham with water. This Act was repealed by the Birmingham Waterworks Act 1855 (except so far as the incorpcration of the company was concerned). In the meantime, by the Birmingham Improvement Act 1851, the council were (sect.

66

[Q.B. DIV.

109) empowered to provide water for the purposes of that Act, and for private use, and for that purpose to contract with the Birmingham Waterworks Company for a supply of water, and after twelve months' notice to purchase the whole works of the company, in which case all the powers of the company, inter alia in regard to receiving and recovering of rents or rates for water, were from the date of the purchase to belong to the council. By sect. 124 of that Act the council were empowered "as long as any building should be supplied with water by the council for domestic use, to make a special rate, called the water rate, upon the occupier, and the rate so made shall be assessed upon the annual value of the building ascertained in manner_prescribed by clauses 175, 176 of the Towns Improvement Clauses Act 1847." Turning to those clauses it is provided by clause 175, that the annual value of all property rateable under that Act is to be "ascertained according to the next preceding assessment for the relief of the poor;" but clause 176 provides that if the poor rate be in the judgment of the commissioners an unfair criterion they may cause a valuation to be made," and in every such valuation the property rateable shall be computed at its net annual value as defined by 6 & 7 Will. 4, c. 95, or any other Act for the time being in force for regulating parochial assessment." Clause 130 of the Bir mingham Improvement Act 1851 further provided that a new valuation should be made according to sect. 176 of the Towns Improvement Clauses Act 1847, within eighteen months from the 1st Jan. 1852. No purchase of the waterworks by the corporation having been made under the powers of the Act of 1851, it was contended by Mr. Webster that that Act could have nothing to do with the argument; but it was relied on by Mr. Hugo Young, for the appellant, as showing that the Legislature throughout, in dealing with the rates to be charged for water, when it uses the expression "annual value," contemplates "net annual value," and not "gross estimated rental." Other Acts were referred to for the same purpose, especially 38 & 39 Vict. c. 55 (the Public Health Act 1875), which by sect. 56 provides that "where a local authority supply water to any premises, they may charge a water rate assessed on the net annual value of the premises ascertained in the manner prescribed by this Act with respect to general district rates," which by sect. 211 is, "on the full net annual value" ascertained by the valuation list, if there be one; if not, by the last poor rate. The Union Assessment Act (25 & 26 c. 103) was also quoted as showing that the Legislature habitually uses the words "annual value," net annual value," and "rateable value," when dealing with questions of rating, as convertible terms. The case of Reg. v. Tomlinson (9 B. & C. 163) was also relied on by Mr. Hugo Young for the appellant, but it certainly does not assist his argument, for Bayley, J. there says, on page 167, "Annual rent is not annual profit or value," and the expression, "net yearly rent " used in that case is held to be equivalent to "the rent paid by the tenant after deducting taxes and charges of collection," and not "the clear annual rent after every deduction, including therefore the part to be set aside for repairs and reproduction of the subiect of the rate: (Ibid. p. 166.) He also relied on Baker v. Marsh (24 L. T. Rep. N. S. 72; 4

66

Q.B. Div.]

E. & B. 144), in which it was held that a town councillor was not "rated to the relief of the poor upon the annual value of not less than 151.," where his rateable value was only 11l. 158. But this case appears to us to have turned wholly upon the construction of the clause relating to the qualification in question, and not to throw any light upon the meaning of "annual rent in the clause now in question. In paragraph 9 of the case it is stated that the appellant contends, and the corporation admits, that the words "annual rent"

in sect. 83 of the Birmingham Waterworks Act 1855 are equivalent to the words "annual value," in the Waterworks Clauses Act 1847, sect. 68. But we do not see that this admission assists us in deciding the meaning of either term, for the Waterworks Clauses Act 1847 contains no definition or explanation of the words "annual value," but merely provides that water rates shall be payable according to the annual value of the tenement supplied with water, and if any dispute arise as to such value the same shall be determined by two justices." The respondent's counsel, Mr. Alfred Young, contended that no assistance was to be derived from the other Acts referred to by the appellant's counsel, and that the question was to be decided by reference only to the words of sect. 83 of the Act of 1855, assisted by the construction put by the Court of Appeal upon the words "annual value" in the case of Dobbs v. Grand Junction Waterworks Company (47 L. T. Rep. N. S. 504; 10 Q. B. Div. 337). He contended that the Act of 1851, never having been acted upon by the corporation (who had purchased the waterworks and obtained their powers solely under the Acts of 1875 and 1855), had no application to the case, and consequently that clauses 175 and 176 of the Towns Improvement Clauses Act had no application, or, if they applied, that the words in sect. 176,"property rateable shall be computed at its net annual value as defined by 6 & 7 Will. 4, c. 96," only required such allowances to be made as would be required in order to get at the letting value of the house; in other words, at the "gross estimated rental" upon which the rateable value is afterwards to be computed. Great reliance was placed by the respondent's counsel on the decision of the Court of Appeal in Dobbs v. Grand Junction Waterworks Company. There the question was as to the meaning of the following words: "According to the actual amount of the rent where the same can be ascertained, and where the same cannot be ascertained, according to the actual amount or annual value upon which the assessment to the poor rate is computed." The Court held that these words did not mean the rateable value as appearing in the rate,, but the gross estimated rental;" but the decision turned to a great extent upon the ground that the words, upon which the assessment is computed," showed that the amount of the assessment itself could not be intended, and upon the fact that at the time of the passing of the Act the 6 & 7 Will. 4, c. 96, had not come into existence; and upon the absence of the word "rateable," and other similar considerations. It did, however, contain many observations applicable to the present case, and to all cases in which the question arises, what is the value in respect of which a water rate is to be calculated, and which seem to us to throw light upon the true meaning to be assigned to

[Q.B. DIV.

such words as "annual rent" in connection with the calculation of the amount to be paid for water supplied. For instance, Lord Coleridge, C.J., in discussing the words "actual amount or annual value upon which the assessment to the poor rate is computed," says that they mean "the full amount at which the house to be rated would before the 6 & 7 Will. 4, c. 96, have been valued by the persons who were to rate it, that amount not being subject to be afterwards reduced by those various heads of allowance with which we are all familiar, and which were to be made" (and as he afterwards observes" which we know historically were made" before 6 & 7 Will. 4, c. 96) " by the overseers before the actual assessment upon any individual was arrived at." Baggallay, L.J. (p. 352) says: "Annual value is not the annual value at which the house is assessed to the poor rate, but the annual value upon which the assessment to the poor rate is computed." Lindley, L.J. in his judgment (p. 353) lays stress upon the omission of the words "net or "rateable," and concludes that the meaning of the words "annual value" is, whether the house is let or not let, what it would let for" (p. 355). Having regard to these expressions as to the true meaning of the words "annual value," and to the words "annual rent," in sect. 83 of the Act of 1855, and to the construction put upon the very similar words in Sheffield Waterworks Company v. Bennett, we think it would be running counter to the cases cited, and laying down a rule inconsistent with them, if we were to hold that the words "annual rent" are equivalent to "rateable value ascertained in the manner provided by 6 & 7 Will. 4, c. 96." It would have been so very easy for the Legislature to use language showing such intention, if any such had existed, that we cannot help thinking that the absence of any such language is a strong reason for holding that the words used have no such meaning. The argument derived from other statutes containing very different words seems to us on the whole to tell against such an intention. Nor is there any reason why the one mode of arriving at the amount on which the payment for water should be assessed should be preferred to the other. The object of the Legislature apparently is that houses, or parts of houses, supplied with water should pay water rates, calculated with reference to the class of the house, or to the value of the part of a house, which is supplied; but this object will not be attained by adopting the rateable value better than the gross estimated rental as the value upon which the amount is to be assessed. Either will suffice for the purposes of calculation, and the Legislature may equally well be supposed to have adopted either. Looking at the words of sect. 83, and putting the best construction we can upon the words "annual rent," we have come to the conclusion that, in the main, the stipendiary magistrate has taken the right view, and that, when he has calculated the allowance to be made for "voids as above explained, he will do right in allowing the rate to stand, with the necessary alteration occasioned by that allowance.

H. OF L.]

HOUSE OF LORDS.

May 1 and 2, and June 5, 1883. (Before Lords BLACKBURN, WATSON, BRAMWELL, and FITZGERALD.)

YOUNG AND Co. v. MAYOR AND CORPORATION OF LEAMINGTON. (a)

ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND.

Public Health Act 1874, s. 174-Contract not under seal-Corporation-Urban sanitary authority. The provisions of sect. 174 of the Public Health Act 1875 (38 & 39 Vict. c. 55), requiring contracts for more than 50l. to be in writing, are mandatory, and not merely directory; and therefore where the duly authorised agent of a corporation, acting as an urban sanitary authority under the Act, contracted for the execution of certain works, which were duly executed, such contract not being under seal:

Held (affirming the judgment of the court below), that the contractors could not recover against the corporation.

Hunt v. Wimbledon Local Board (4 C. P. Div. 48; 40 L. T. Rep. N. S. 115) approved.

THIS was an appeal from a judgment of the Court of Appeal (Brett, Cotton, and Lindley, L.JJ.), reported in 8 Q. B. Div. 579, and 46 L. T. Rep. N. S. 555, affirming a judgment of the Queen's Bench Division (Williams and Mathew, JJ.) upon a special case.

The facts appear from the judgment of Lord Blackburn, and the special case is set out in the report in the court below.

We

Davey, Q.C. and Edwyn Jones, for the appellants, argued that the sole question was, whether the absence of the seal was fatal to the plaintiffs' right to recover, and this must be considered as it stood, apart from the Public Health Act 1875, and then as affected by the provisions of that Act. contend that sect. 174 is merely directory, not obligatory. When a corporation have taken the benefit of an executed contract, they cannot plead their own disability for want of a seal, and an action can be maintained upon an executed contract, if made for the purposes for which the corporation was created, though not under seal :

Clarke v. Cuckfield Union, 21 L. J. 349, Q. B. ; Church v. Imperial Gas Company, 6 A. & E. 846. Lamprell v. Billericay Union (3 Ex. 283), which appears to lay down a different rule, is distinguishable. In this case one of the reasons for which the corporation existed was to supply water to the district. See

Paine v. Strand Union, 8 Q. B. 326. Clarke v. Cuckfield Union was followed in Nicholson v. Bradfield Union (L. Rep. 1 Q. B. 620; 14 L. T. Rep. N. S. 830) end Haigh v. North Bierly Union (28 L. J. 62, Q. B. ; E. B. & E. 873). London Dock Company v. Sinnott (8 E. & B. 347; 27 L. J. 129, Q. B.) was a case of an executory contract. See also

Sanders v. St. Neots Union, 8 Q. B. 810. Down to Clarke v. Cuckfield Union the current of authority was no doubt not uniform, but since that decision three exceptions to the rule that a corporation can only contract under seal have been upheld: (1) Where the contract is executed; (2)

(a) Reported by C. E. MALDEN, Esq., Barrister-at Law.

[H. of L.

in matters of small amount necessary for carrying on its ordinary business; (3) where it is impossible to affix a seal in the time. This case comes under the first exception. See also

Mayor of Stafford v. Till, 4 Bing. 75;

East London Waterworks Company v. Bailey, 4
Bing. 283;

London and Birmingham Railway Company v.
Winter, Cr. & Phil. 57;

Beverley v. Lincoln Gas Company, 6 A. & E. 829;
Horn v. Ivy, 1 Ventr. 47;

Mayor of Ludlow v. Charlton, 6 M. & W. 815;
Finlay v. Bristol and Exeter Railway Company, 7
Ex. 409.

That being the general state of the law, the further question is the effect of the Public Health Act 1875. In municipal boroughs no new corporation, is created, and we say that sects. 173, 174 are merely directory, not imperative, so as to create conditions precedent. See Nowell v. Mayor of Worcester (9 Ex. 457; 33 L. J. 139, Ex.), decided under the Public Health Act 1848 (11 & 12 Vict. c. 63). Frend v. Dennett (4 C. B. N. S. 576; 5 L. T. Rep. N. S. 73) will be cited against us. It was also a decision under the Act of 1848, but it is distinguishable, for in that case the corporation was the creature of the statute. See also

Kirk v. Bromley Union, 2 Phill. 640; 17 L. J. 127, Ch. ; Andrews v. Mayor of Ryde, L. Rep. 9 Ex. 302. The court below relied on Hunt v. Wimbledon Local Board (4 C. P. Div. 48; 40 L. T. Rep. N. S. 115), but it does not cover this case.

The Solicitor-General (Sir F. Herschell, Q.C.), Mellor, Q.C., and Dugdale, Q.C., who appeared for the respondents, were not called upon to address the House.

At the conclusion of the argument for the appellants, their Lordships took time to consider their judgment.

June 5.-Their Lordships gave judgment as follows:

Lord BLACKBURN.-My Lords: This is an appeal against an order of the Court of Appeal, dismissing with costs an appeal against the judgment of the Queen's Bench Division of the High Court of Justice, in favour of the respondents, on a special case. I believe that all the noble and learned Lords who heard the argument agree with me that the order appealed from must be affirmed. By the special case it appears that the municipal corporation of the Royal Leamington Spa are, under sect 6 of the Public Health Act 1875 (38 & 39 Vict. c. 55), acting by their council, the urban authority for the district consisting of the borough. The defendants, as such urban authority, had made a contract under their seal with one Powis for the execution of works for supplying the district with water. Powis failed to complete his contract, and it was put an end to. The council, in their capacity of urban authority, as far as they could do so by resolutions not under seal, authorised their engineer and surveyor, Mr Jerrom, to enter into a contract for completing the works left uncompleted by Powis. The special case then proceeds: "Thereupon the said Jerrom, as the engineer, agent, and servant of the corporation, and acting within and according to his duties, powers, and authorities as such, and also acting in accordance with and in fulfilment of the provisions of the said condition 115 of the said Charles Powis, employed the plaintiffs to execute, carry out, and complete the said unfinished works, according to