1875 the justices to settle the value. The object was, to give the comNEW RIVER pany a summary and inexpensive remedy. As to the mode of assessing the value, Sheffield Waterworks Co. v. Bennet (1) was cited. COMPANY v. MATHER. J. Brown, Q.C. (S. Wills with him), contrà. The party who makes the demand is the party whose duty it is to initiate the proceedings before the magistrates: Ex parte Payne (2); St. Pancras (Vestry) v. Batterbury. (3) [BRETT, J. In the last-cited case the Act created the right and gave the remedy. Here, it did not require a statutory provision to enable the company to sue.] At all events, the power to sue does not exist until the amount to be recovered has been first ascertained: Scott v. Avery. (4) Here, the amount of the rent not having been ascertained by the proper tribunal, the company were not in a condition to sue for it. There is nothing due until the amount has been determined: Braunstein v. Accidental Death Insurance Co. (5) Philbrick, Q.C., in reply. No doubt, parties may agree among themselves that the amount the one shall be entitled to recover from the other shall be ascertained in a particular way. But that does not arise here. The only question is, whether there must be a decision of two justices before the company can sue for the water supply. At all events, it lies on the party who contests the amount to take steps to moderate it. LORD COLERIDGE, C.J. I am of opinion that the judgment in this case should be reversed, and a nonsuit entered. One point only has been argued before us. I give no opinion upon another which was suggested. I base my judgment entirely on the second point, viz. that, upon the true construction of the 68th section of the Waterworks Clauses Act, 1817, the judge of the county court had no right to entertain the question. This is a proceeding by the New River Company to recover the amount of a rate assessed upon the defendant. The company rated the defendant upon an annual value of 227. The defendant 1875 COMPANY v. MATHER. disputed the assessment, and asserted that the true annual value of the premises was 187. only, and he on the 15th of April, 1873, NEW RIVER wrote to the secretary of the company claiming to be assessed upon that basis, tendering the sum which he said was due according to his view. The company declined to adopt the defendant's valuation or to accept the sum he tendered, and brought their action in the county court to recover what they deemed to be the proper amount of rate. The question is whether the county court was the proper tribunal to try this matter. By ss. 2 and 3 of the New River Company's Act, 1852, the Lands Clauses Consolidation Act, 1845, and the Waterworks Clauses Act, 1847 (with certain exceptions), are incorporated with the special Act. Now, s. 68 of the last-mentioned Act enacts that "the water-rate, except as hereinafter and in the special Act mentioned, shall be paid by and be recoverable from the person requiring, receiving, or using the supply of water, and 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." In the present case, it is plain that a bonâ fide dispute as to the annual value of the tenement had arisen before the issuing of the plaint. It seems to follow that, before the company can enforce the payment of a rate as to which there is a dispute, and the amount of which depends upon the determination of that dispute, they must cause it to be determined in the way pointed out by that section, viz. by two justices, or by that tribunal which in the metropolitan district is substituted for two justices. All I desire to decide is, that, where there is a bonâ fide dispute as to the annual value of the tenement to be charged with the water-rate, properly raised and known to both parties, that dispute must be determined by the justices before payment of the rate can be enforced by action. That is the effect of s. 68 of the Waterworks Clauses Act, 1817. See how the thing works out. The 85th section of that Act (which is incorporated with the New River Company's Act, 1852), enacts that "if the waterworks shall be in England, the clauses of the Railways Clauses Act, 1845, with respect to the recovery of damages not specially provided for, and of penalties, and to the determination of any other matter referred to justices, shall be incorporated with this and the special Act, and such clauses shall 1875 COMPANY v. MATHER. apply to the waterworks and to the undertakings respectively, and NEW RIVER shall be construed as if the word 'undertakers' had been inserted therein instead of the word 'company. "Sect. 142 of the Railways Clauses Consolidation Act, 1845, gives a mode of procedure: it enacts that, "where in this or the special Act any question of compensation, expenses, charges, or damages, or other matter, is referred to the determination of any one justice or more, it shall be lawful for any justice, upon the application of either party, to summon the other party to appear before one justice, or before two justices, as the case may require, at a time and place to be named in such summons; and, upon the appearance of such parties, or, in the absence of any of them, upon proof of due service of the summons, it shall be lawful for such one justice, or such two justices, as the case may be, to hear and determine such question, and for that purpose to examine such parties, or any of them, and their witnesses on oath; and the cost of every such inquiry shall be in the discretion of such justices, and they shall determine the amount thereof." Here the company are seeking to enforce payment of a rate. A dispute arises as to the annual value upon which the rate is to be calculated. Before they can proceed, they must get the matter so in dispute settled in the way pointed out by the Waterworks Clauses Act, 1847, and the Railways Clauses Consolidation Act, 1845; and, having done that, they may proceed to enforce payment, according to the value, by action in a superior Court or in the county court, whichever is the proper tribunal. It is not a question of exclusive jurisdiction of justices, in one sense. They cannot issue any order upon the summons before them; they are merely to determine the question of annual value. That seems to me to be reasonable and convenient, and at all events it is so enacted. We must therefore give judgment for the defendant. BRETT, J. The matter is one of considerable difficulty: but, in the result, I concur so far as the present case is concerned that our judgment should be for the defendant. The facts are as follows:The company had supplied water to a house of the defendant whose annual rent was 207. After having supplied it for some time, they put the annual value of the house at 227., and claim to 1875 COMPANY v. MATHER. be paid a rate at 4 per cent. upon that amount. The defendant, the tenant, disputed the propriety of the charge, on the ground NEW RIVER that the company had calculated the rate improperly. The company brought their action in the county court to recover the amount they claimed, and the defendant tendered and paid into court the sum which he considered to be due: and he gave notice to the county court judge that the question in dispute was what was the true basis for determining the "annual value" of the premises. The county court judge proceeded to hear and determine the question, and he did determine the annual value of the tenement; and that is the only question which he really did decide. That raises the question whether, where there is a bonâ fide dispute as to the annual value, and that is brought to the notice of the county court judge, it is competent to him to entertain it. These waterworks companies do not assess the annual value of premises in the same way as assessments for the poor-rates are made. They do not give notice of the assessment, so as to give the parties assessed an opportunity to appeal. They are incorporated with certain powers and obligations, and are entitled to charge for the goods (water) which they supply, sometimes by special agreement and sometimes by a percentage on the annual value. They do not make their charge until the water has been supplied. If they have rightly assessed the value, the money is due. The only question is, how the money is to be recovered, or, if disputes arise, before what tribunal they are to be determined. If the only thing to be inquired into is, whether the water has been supplied, and what amount is due, that may very well be decided by the county court; but the question is whether, where the matter in dispute is the basis of the valuation, the county court and the superior court are not both excluded from entertaining the matter. It is said, and properly said, that, by reason of the special Act having incorporated with it the Waterworks Clauses Act, 1847, it is to be construed as if s. 68 of that Act was part of it; and that section enacts that the water-rate shall be payable according to the annual value of the tenement supplied with water, and that, "if any dispute arise as to such value, the same shall be determined by two justices." The question we have to determine is, where a dispute as to the annual value has arisen before any VOL. X. 2 L 2 1875 proceeding taken to enforce the rate, can the company take the NEW RIVER decision of that dispute from the magistrates, and call upon the COMPANY v. MATHER. county court or the superior court to determine it? Consistently with the cases cited, I come to the conclusion that the only tribunal which can under such circumstances determine the matter is the tribnnal pointed out by s. 68. We have been referred to s. 85. That section, as to the form of procedure, incorporates s. 142 of the Railways Clauses Consolidation Act, 1845; and it seems to me that, if a dispute arises before action, one of the parties to the dispute must take out a summons before two magistrates, under s. 142, stating that there is a dispute as to the annual value, and claiming a decision on that point. All the magistrates can do is to give their decision. After such decision, the company may enforce their rights according to circumstances. They may cut off the supply, under s. 74 of the Waterworks Clauses Act, 1847, or may sue in the county court, or in the superior Court, under s. 46 of their special Act, according to the amount. Now, let us consider what would be the state of things if the dispute arose after action brought. Must the Court in that case at once hold its hand? I decline to go so far. I entertain grave doubts whether the jurisdiction of the Court can be ousted, where the issue was properly raised before them at the time. I confine my judgment to the case before us, of a bonâ fide dispute arising before the commencement of the proceeding; and I am of opinion that, where notice is given in the county court, or in the superior Court by plea (I do not say it must necessarily be by plea, though I am inclined to think it must), that such a dispute has arisen, the Court cannot decide the question of annual value, but that that can only be decided by two justices. I therefore think the county court judge here decided that which was in the exclusive jurisdiction of another tribunal, and that therefore his decision must be reversed. DENMAN, J. I am of the same opinion. I found my judgment upon the point which has been argued before us, viz. that, upon the facts of this case, it appears that a dispute as to the annual value of the tenement had so arisen as to make it incumbent on the company, before suing for the rate, to get the decision of two |