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the second count. The question of compromise raises the point which was argued. It was contended that the matter was governed by the Public Health Act 1875, and that the compromise itself was a contract which, under the 174th section of that Act, it was not competent for a local authority to make unless under their seal. Another point raised was that, underlying the statutory obligation, or the statutory incapacity under the Public Health Act, there is the old common law rule-perhaps partly common law and partly the creature of other statutes before the Public Health Act. The defendants' counsel argue that, if they fail under the Public Health Act 1875, they succeed at common law in showing that there was either a statutory or a common law incapacity in the local board to make the compromise unless they did it under seal. I think that that question was really the question which was decided in the case before Bacon, V.C. of Attorney-General v. Gaskill (45 L. T. Rep. 180; 22 Ch. Div. 537), and it is binding upon us. It has been decided now for more than fifteen years, viz.. since 1882. The principle of that case, so far as I can understand it, is this, that where a local board have embarked in litigation, either as plaintiffs or defendants, and in the course of that litigation make an agreement with a view to compromise the litigation, and put an end to it, the agreement so made is not an agreement which comes under the provisions of the 174th section of the Public Health Act 1875 at all, and they are not fettered by the obligations by which they are fettered in cases of contracts necessary for the purpose of carrying out that Act. They are not, in other words, fettered with the obligation of putting it under seal. That is the principle of the case, it seems to me. No doubt in that case the original action was not an action for work done under, or without, a contract for the corporation. It was for another matter; but that is not the pith of the decision. It appears to me that the basis of that decision is not the nature of the original litigation, but the fact that in the course of that litigation it was deemed expedient in the interests of the local authority to make the compromise, and if that is so, then that compromise need not be under seal. That, it seems to me, is the principle of that case. Two distinctions are taken here. One, that the action here was for something that, had it not been evidenced by a contract under seal, would have created no liability upon the local board. That may very well be; but if what I have said about the principle of the case of Attorney-General v. Gaskill (ubi sup.) is sound, then that objection is answered. Secondly, it was said that that decision is a decision as to a compromise after action, and that in this case the compromise was made not after action. I think that that is a distinction which cannot be supported in fact here because, though the writ had not been issued in the case now before us, formal notice of action had been given. I understand that notice of action need not be given now, but in the old days notice of action was practically the same thing as a declaration; you put every count practically in the same terms as in your declaration. It does not, however, matter whether they were bound to give it or not. They did give a formal notice of action which, in my judgment, is just as good an indication

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of commencing litigation, so as to throw upon the other side the burden of considering whether they will or will not do the best for themselves and their ratepayers by effecting a compromise, as would be the actual serving of a writ. The test of the thing is, is it done in a bona fide attempt to compromise a legal claim, or is it done entirely outside? It seems to me that that is the principle of the case of AttorneyGeneral v. Gaskill (ubi sup.), and it cannot be an essential step whe her or not the writ has been actually issued, and whether or not they had formal rotice that there was a writ. I think, therefore, that the principle of Bacon, V.C.'s decision in the case before him does cover the case of the compromise here. But supposing I am wrong there, still I think that the second finding here is based upon a contract under seal which, as I have said, also by its terms embraces every issue of fact that is raised on the record. We have refused to allow the case to go back for any further statement, on the ground that the issues of fact raised by the pleadings are ascertained here. Looking at those facts now in view of the finding of the arbitrator, I can find no ground for suggesting that the finding of the arbitrator that the works contracted for under seal, and for which certificates had been given by the duly authorised engineer, were not properly within the ambit of the contract. There is no specific finding that they are not. On the contrary, there is a finding which, in my judgment, embraces an assertion that they are. Therefore, on that count as well as on the compromise, or even apart from the compromise if the compromise failed, or for any reason was ineffectual, the plaintiff is entitled to judgment.

From the decision on the defendants' motion they now appealed, on the grounds that the umpire did not decide the matters submitted to him, nor in the form or manner required by the submission; and that the umpire exceeded his jurisdiction by deciding the points of law which might have been raised by either party at the trial of the action, and were so raised by the defendants.

Upon the same grounds the defendants now appealed from the decision on the plaintiff's motion; and also upon the further grounds that the compromise was verbal and not in the form required by law; that it was conditional, and that the condition therein mentioned had never been fulfilled; and that it was not enforcible at law.

Asquith, Q.C. (with him Llewelyn Williams), for the appellants, on the question whether the compromise should have been under the seal of the local board, referred to

Public Health Act 1875, ss. 173, 174:

Attorney-General v. Gaskill, 45 L. T. Rep. 180; 22 Ch. Div 537.

Channell, Q.C. and Griffith Jones, for the respondent, were not called upon to argue.

LINDLEY, M.R.-The substantial question which we have to consider in this case turns on the true construction of clauses 1 and 6 of the contract entered into in Jan. 1890, under the common seal of the local authority of Barmouth. The contract related to the construction of certain works required in the extension out to sea of the

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existing outfall sewer at Rô-ddu, Barmouth. The precise nature of the work to be done is stated in the first article of the specification. That is the subject-matter of the contract. It appears that the work was to be executed in a particular way. Piles were to be driven into the sea-bottom and the sewer was to be fastened to the piles. Clause 6 of the specification says this. [His Lordship read it and continued:] That is the bargain. What was done was this: It was found that the sea-bottom was so rocky and hard that the original scheme was considered impracticable. Accordingly the engineer who had the control of the works directed alterations and variations of the contract, and he said that the sewer pipes must be secured by anchors attached to stones, instead of being secured under the sea by piles as originally intended. Is it possible to say that that is not such a variation as was contemplated and authorised by clause 6 of the specification? I think not. It seems to me that it is quite possible that the change of object might have been so radical that it might not fairly be regarded as an alteration of the kind contemplated. But this alteration was, I think, fairly an alteration covered by clause 6 of the specification. All that was done here was done under the power conferred on the engineer by that clause, and consequently in pursuance of a contract which was under seal. That is of the utmost importance. We have therefore that ground to stand on. The work having been done in accordance with the altered plan, some controversy arose between the parties as to what was owing to the contractor in respect of the work done under the contract. A verbal compromise and settlement of the disputes which had arisen was arrived at in Nov. 1894. It is objected that that compromise was not under the seal of the local authority. We are all familiar with the common law doctrine by which a contract entered into by a corporation must be under the seal of the corporation. The matter has so often been thrashed out in the courts that it is not necessary to discuss it now. But it seems to me that, where disputes have arisen under a contract under seal, a compromise of those disputes need not be under seal also. There is nothing improper or wrong in the mere fact that the parties have verbally adjusted their disputes. It seems to me, therefore, that the award binds the parties to this arbitration, the arbitrators having had distinct authority to make it. There are, consequently, absolutely no grounds for referring the award back to the arbitrators. I think, therefore, that the appeals must be dismissed with costs.

CHITTY, L.J.-In this case a contract was made for the construction of certain sewerage works. It contained the usual clause conferring on the engineer who had the management of the contract the customary power to vary, alter, enlarge, or diminish any of the works, and such alterations were not to annul the contract. There was a

variation directed by the engineer. The argu ment is, that that variation was of such a character that it ought therefore to have been under seal. I do not think so. The works were executed in accordance with the variation made in a contract under seal. The claim of the contractor was sent in and considered by the local authority, and disputes having arisen between the parties a verbal compromise was come to. It is said that it should

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Local government 'Streets

Charges for paving, sewering, and metalling-Trespass-Arbitration-West Hartlepool Extension and Improvement Act 1870 (33 & 34 Vict. c. cxiii.). By a local Act (the material provisions of which were substantially the same as those of the Public Health Act 1875) commissioners were created, having duties with regard to streets and buildings within a certain area.

In 1878 it was proposed to lay out an estate within such area for building, and plans were submitted to and approved by the commissioners. By an agreement between them and the defendant, he was, on completion of certain roads, to throw 18 feet of his land into those roads, so as to increase the width to 36 feet (which was done), but not to make the roads. In 1887 the powers of the commissioners passed to the plaintiff corporation.

In 1892 the corporation by an order required the defendant to sewer, drain, level, flag, and metal the roads (being the 18 feet width which was not on his land) so far as his premises fronted. adjoined, or abutted thereon. The defendant had done the necessary work of sewering and paving on the 18 feet portion of his land which he had, as agreed, thrown into the roads for the purpose of making them 36 feet wide. The order not having been complied with, the corporation executed the work themselves, and on making request for payment the defendant's agent disputed that the property was liable. A summons was accordingly taken out by the corporation to have the sums expended declared a charge on the property.

Held, that half of each of the roads was a "street" within the meaning of the Act, so as to bring it within the power of the corporation to sewer and pave it compulsorily, at the expense of the adjoining owners, in case of their not complying with a proper notice to do so; that the notice was properly made and served on the defendant; that entry on lands in obedience to the order did not constitute a trespass; and that, as the defendant did not rest his defence on a wrong (a) Reported by E. A. SCRATCHLEY, Esq., Barrister-at-Law.

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square, court, alley, or passage, within the improvement district, whether made before or after the commencement of this Act." What does it matter whether the street is made piecemeal, and whether one part of it means one portion of the whole of it, but not the whole length or one portion of the whole length, but not of the whole width? To say that Messrs. Callender, Pape, and White's 18 feet strip is not part of the wider street which was contemplated, appears to me to be an absolutely untenable proposition. It is a "street" for all the purposes of legislation. It is not the less a "street" because it was intended to be widened. The next circumstance in point of date to which it is necessary to allude is this: On the 5th Jan. 1892 the corporation made an order under sect. 80 of this Act of Parliament, and that was that these streets should be flagged and paved and macadamised in the way specified by that order. There was nothing ultra vires in that; it was perfectly right and perfectly legiti mate, and was quite within their powers. That order was served upon Mr. Robinson amongst other people. Then nothing was done by any of the owners, so the corporation did the work themselves. Pausing there for a moment, what was there wrong in that? It is not necessary for us to consider whether under this Act of Parliament, if Mr. Robinson had been no party to these proceedings, and if there had been no agreement by him to throw in 18 feet and make the road 36 feet wide-he being an outsider and the attempt being to impose upon him an obligation of contributing half the expense of making the road on Messrs. Callender, Pape, and White's property that could have been done. I do not know whether or not it could, nor is it necessary for us to consider that point. The point of the case is this: that this was a street 36 feet wide to be made for the common benefit. It was as much for Mr. Robinson's benefit as for Messrs. Callender, Pape, and White's. It was a joint operation and a joint construction from first and last to that extent. Therefore it appears to me that we need not trouble ourselves about what possibly is a much more difficult question as to what would have been our decision if Mr. Robinson had been no party to the proceedings. Then, nothing being done. the corporation, as I have already remarked, did the work themselves, and then there was an apportionment of the expenses. Sect. 82 is the section under which they took the next step after the order for making up the street and so on had been duly served. It enacts that: If any work required to be done by any such order is not commenced within one month after notice of the order has been given, or if any such work, when commenced, is not carried on without unreasonable delay, or if any such work is not completed within the time and in the manner prescribed in the order, the following provisions shall apply to every such case, namely,"-the commissioners may do the work themselves. Sub-sect. (2) of that section is as follows: "The commissioners may charge the several owners of buildings or lands in the street with the expenses of the execution by them of those works or incidental thereto (which expenses are comprised in the term new street expenses' where used in this Act)." Sect. 69 says: "For the purposes of this Act, buildings and lands shall be deemed

66

66

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to be in a street when they abut on a street, or when only some portion of waste or unoccupied ground open to the passage of the public, intervenes between the buildings or lands, and a street.” Having regard to that section, and having regard also to the word "street," it is impossible to say that Mr. Robinson was not a person who was an owner of land in the street, the street being, as I understand, the 18 feet portion which was being made first as a part of the wider street. He is, therefore, a person who might properly be charged. Then comes sub-sect. (3) of sect. 82, which provides that: New street expenses shall be charged to such owners in proportion to the extent of the frontage of their respective buildings and lands in the street." Then follows sub-sect. (4) of sect 82, which directs that Such proportion shall be ascertained and settled by the surveyor, and the apportionment by him shall be binding and conclusive on all parties unless the same is by written notice disputed within one month from the time of notice being given by the commissioners of the apportionment." Sub-sect. (5) epacts that "Any such dispute shall be settled by arbitration." What did Mr. Robinson do? He did not in any way dispute the apportionment, that is to say, the amount which he was asked to pay; he took up a perfectly logical and perfectly intelligible position, though, in our opinion, he was wrong. He contended that he was a person, who was not within the jurisdiction of the commissioners or of the corporation at all, and that they had no right whatever to make any order upon him, because he had no land whatever abutting on this street. This point turns upon a critical examina tion of the meaning of the word "street," and upon this point we are against Mr. Robinson's contention. He denied the jurisdiction of the commissioners or the corporation, and it appears to me perfectly impossible to say with him that this is a dispute about the apportionment, by the surveyor; it is nothing of the kind, it is far from that. We were pressed with cases upon the Public Health Act 1875, the provisions of which are similar to those of this Act of Parliament. Reliance was placed on the case of The Sandgate District Local Board of Health v. Keene (66 L. T. Rep. 741; (1892) 1 Q. B. 831) more particularly. I do not understand, however, that that case goes the length of saying that if a person takes up the position which Mr. Robinson has here, the local authority have no jurisdiction over him at all, and that the dispute is to be referred to arbitration. If there is any distinction between that case and the present, it is adverse to Mr. Robinson, because after all what we have to do is to construe sect. 82. When we look at it we see that new street expenses are to be charged to the owners in proportion to the extent of the frontage of their respective buildings and lands in the street; and that such proportion is to be ascertained and settled by the surveyor; and that the apportionment by him is to be binding and conclusive on all parties unless the samethat is to say, the apportionment by him-is by written notice disputed. It seems to me that when a man takes up the position which Mr. Robinson did by saying, "You have no juris. diction over me at all," it is absolutely impossible to hold that there is a dispute about apportionment. It is nothing of the kind. Therefore the

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point about arbitration absolutely fails. I do not think that there is anything else to which I need call attention. It is said that there has been a hardship on Mr. Robinson. Of course we have nothing to do with that. At first I was not impressed with that view of the case, but, having read the judgment of Stirling, J., I think that there may be some hardship upon him, because it may be that he is not in a position to obtain compensation. If so, he has managed matters in such a way as to bring this hardship upon himself. But he is not without a remedy because, as Stirling. J. pointed out, sect. 349 of the Act shows that there is a course open to him to have that hardship r-dressed, if there be hardship in it. It appears to me that legally he is wrong from beginning to end, and that the wrong is attributable to the fact that he, having agreed to contribute a strip of his owu land 18 feet wide, has made his building operations not to work in and tally. He has only himself to thank for the position. Legally he is wrong from first to last. For these reasons I think that the appeal must be dismissed, and dismissed with costs.

CHITTY, L.J.-I agree. The order under appeal is an order enforcing a charge under the 350th section of the West Hartlepool Extension and Improvement Act 1870. The facts have already been stated by the Master of the Rolls and I shall not repeat them. When the order of the 5th Jan. 1892 to execute the works was made by the corporation, who then succeeded to the position of the commissioners, the state of things was this: Mr. Robinson had agreed to contribute one half of a road of 36 feet. Messrs. Callender, Pape, and White had originally submitted plans to the commissioners in 1878 whereby they proposed that a road of the width of 36 feet should be made, they contributing one half, namely, the half on their own land of 18 feet. The commissioners, when Messrs. Callender, Pape, and White's proposal was brought before them, refused to proceed until the views of Mr. Robinson as to the scheme had first been duly ascertained. In the result Mr. Robinson entered into a written agreement that he would contribute 18 feet towards the road of 36 feet. He did not agree that he would contribute it at any particular time, nor that he would execute the work required of himself. But still be was a party assenting to the scheme, and that I think is an important fact in this case. When the order of the 5th Jan. 1892 was made, that being as I have said the state of affairs, a question seems to have been raised in the argument whether that order was an order made within the authority of the 80th section of the local Act. On looking at the order and referring to the surveyor's plan which forms part of the order, it is quite plain that the order related to а street then to be made 18 feet wide. Putting with that the other circumstances that I have already stated in connection with that order, no doubt there was a street of 36 feet in contemplation, but it was part of this contemplated 36 feet road that was then under consideration, and which was then ordered to be made. The order plainly referred to the 18 fret street, and that appears to me to be "a street or part of a street " within the meaning of the Act of 1870. It was urged that the urban authority had no jurisdic

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tion to make an order for the execution of works upon a street less than 36 feet wide; but I refer to the 73rd section, which says that: "Every new street intended for carriage traffic shall be laid out and formed at least 36 feet wide unless," and then there follow certain circumstances which are meutioned and the section concludes by saying, "or on account of other special circumstances stated in the order." Now, in my opinion, there were special circumstances to bring this case within that 73rd section, namely, the circumstances which I have already shortly stated, that Mr. Robinson, the adjoining owner, had agreed to contaibute one half of the 36 feet road. I entertain no doubt that the street mentioned in the order of the 5th Jan. 1892 was a street or part of a street within the meaning of this Act. That being so, I think it is not unimportant to observe that the fence which separated Messrs. Callender, Pape, and White's land from Mr. Robinson's land was on Mr. Robinson's land. It is worth noticing also that the order which has to be made under the 80th section is not required to state by whom the new street is to be formed. The order as made and as authorised to be made, is in general terms, viz., that these works of sewering, draining, and the like should be done. Moreover at the time this order was made this was, in fact, an 18 feet street or highway in the general acceptation of that term. The road had been opened to the public. There were houses already erected on Messrs. Callender, Pape, and White's side, and this street was in such a condition that it was proper to apply for the completion of the road under sect. 80. We were informed that the corporation had received complaints because the works had not been completed. As the Master of the Rolls pointed out, this 80th section does not say in terms by whom such a street is to be completed. It merely directs that the respective owners of the buildings and lands in such street shall at their own expense do the works which are mentioned in the earlier part of the section. It says nothing, as Stirling, J. pointed out, with reference to the ownership of the land on which the " street"-using that word in the popular sense of the term, and in the sense in which, in my opinion, it is used in the Act--was made, or by whom the work is to be done. Then the order was duly served under sect. 81 upon Mr. Robinson, and I can see nothing in the objection that was put forward, that under this order Mr. Robinson was ordered in substance to do work which he had no power to do. This section directs that the order shall be served on the respective owners or occupiers of the buildings aud lands in the street to which it relates. That carr es one back to an earlier section-namely, the 69th section-which enacts that: For the purposes of this Act buildings and lands shall be deemed to be in a street when they abut on a street." The rest of that section is not here material, and I will not read it. Now, in this case the lands of Mr. Robinson upon which this charge is made do abut upon the stre-t. If the fence had belonged to Messrs. Callender, Pape, and White, a different case might have arisen; but it is not necessary to stay to consider that question now. The result is that, in my opinion, the order of the 5th Jan. 1892 was mad within the authority of the Act. and it was served