CT. OF APP.]

of tramways. The tramways are worked by electric energy.

Prior to the year 1918 the energy required for working the tramways in Birkdale was supplied to the tramway company by the plaintiff company. From 1918 to Nov. 1921 it was supplied by the company to the corporation under the terms of an agreement of Oct. 1918. That agreement was duly determined by notice in Nov. 1921, and since that date the energy required for working the entire system of tramways, including those within the old Urban District of Birkdale, has been provided from the corporation's generating station situate outside that district, and within the limits of the former Borough of Southport. The plaintiffsthe Attorney-General on the relation of the company, and the company-dispute the right of the corporation to provide the electrical energy for working so much of the tramways as is within the former Urban District of Birkdale, being the company's area of supply. They say the corporation are prohibited from so doing either by sect. 23 of the Electric Lighting Act 1909 or by an agreement made between the urban district council and the company on the transfer of the undertaking to the company, or by both. The question turns on the construction of the Act and the agreement respectively.

The section relied on by the plaintiffs is in the following terms: [His Lordship read the settlement.] The agreement relied on is clause 8 of an agreement dated the 31st Dec. 1901, made between the Birkdale Urban District Council of the one part and the company of the other part, and, so far as it is material, is in the following terms: "The council shall not, so long as the powers, duties, liabilities, and works authorised by the order ". that is to say the Birkdale Electric Lighting Order 1898-" are vested in the company, apply for any Act, provisional order, or licence under the Electric Lighting Acts, or consent to the grant of an Act, provisional order, or licence under such Acts to any person or persons, company or companies, in respect of the area of supply mentioned in the order, or to the supply of electrical energy by any company, corporation, body, or person within such area of supply."

Eve, J. has decided, contrary, as I gather, to his own opinion, but, following the opinion expressed by North, J. in West Surrey Water Company v. Guardians of Chertsey Union (71 L. T. Rep. 368; (1894) 3 Ch. 513), that both in the Act and in the agreement the word

supply "does not extend to the provision by the corporation of energy for the working of its own tramways, whether within the company's area of supply or not, and accordingly that the corporation are not doing that which is prohibited by the Act of Parliament, or committing any breach of the agreement, and that the action therefore fails.

I propose to deal first with the construction of the Act of 1909. It is provided by sect. 27 that this Act, and the Electric Lighting Acts, are to be construed together as one Act and to be cited

66

66

[CT. OF APP.

as the Electric Lighting Acts 1882 to 1909. There are some material provisions in the Act of 1882 to which reference should be made. Sect. 3 provides that the Board of Trade may licence a local authority, company, or person, to supply electricity for any public or private purpose subject to the provisions of the Act. "Public purposes are to include the lighting of streets and (speaking generally) public buildings, but not any other purpose to which electricity may be applied. "Private purposes are to include any purposes whatever to which electricity may for the time being be applicable not being public purposes. To supply energy for working tramways is, therefore, to supply it for a private purpose, whether the tramways belong to a public body or not: (see sect. 3, sub-sects. 3 and 4). Sect. 4 provides that the Board of Trade may by provisional order authorise any local authority, company, or persons to supply electricity for any public or private purpose within any area. Now in this section it is clear that in the case of a local authority the word supply" includes the provision of electricity for lighting streets and so forth, although they may belong to, or be under, the control of the local authority, and is not confined to the transmission of electricity by the local authority to some other person. Bearing this in mind, I turn to sect. 23 of the Act of 1909. The defendants contend that in this section, at all events, supply" means, and means only, the transmission of electricity by the authority, company, or person referred to to some other authority, company, or person, and that as the corporation are using their own electricity for a purpose of their own, they are not supplying it within the meaning of the section. I cannot adopt this construction. If, as I think is the case, "supply" in sect. 4 of the Electric Lighting Act 1882, includes, as it clearly does, the provision of energy for street lamps, public buildings, and so forth, owned and controlled by the supplying authority, I can see no reason for giving it a different meaning in sect. 23 of the Act of 1909. Moreover, taking the section by itself, I should be of the same opinion, namely, that by what they are doing the corporation are supplying electricity within the meaning of the section. In my judgment, a local authority, acting under a provisional order as the corporation is acting, is making the supply of electricity a part of its business as such authority, and is as much "supplying " itself in its capacity of tramway owner as it is supplying those persons who take and pay for the electricity in the ordinary way. But it is said that the proviso seems to recognise the right of companies or persons to supply electricity for their own use, and even to supply it to others under the circumstances there mentioned. I think it does, but this in no way affects the view I have expressed above, which is that a body acting as the undertakers, under Parliamentary authority, is supplying electricity within the meaning of the Act none the less that the business for which it is used is under its own control. But it is contended, further,

that the supply is authorised by Act of Parliament, and in support of this contention reliance is placed on certain sections of the Southport Extension and Tramways Act 1900. The first of these is sect. 42. I need not read it, as it has just been read by the Master of the Rolls. This section is one which is intended to confer on the corporation, as the local authority of Southport, the power of working tramways without as well as within the borough. It says nothing in terms about the supply of energy, and though it may well be that it is within their powers as a corporation to work tramways outside the borough with energy provided by themselves, it does not follow that they are authorised to supply that energy in another area of supply within the meaning of the Act of 1909. I think the words there point to an express authority, or one arising by necessary implication, to supply or distribute within the particular area. The other sections mentioned are sects. 63 and 64. Sect. 63 gives power to supply electrical energy in bulk to other local authorities, and has no bearing on the question. Sect. 64 authorises the corporation to make agreements for the supply of energy to tramway and light railway companies. This does not confer any such authority as is required in the present case. It, however, contains a proviso that the corporation shall not supply electrical energy in any district without the borough, which did not then include the plaintiff company's area, except with the consent of any local authority, company, or person who shall be supplying electrical energy in such district under statutory authority. This seems to me to confirm my view that sect. 42 cannot be regarded as authorising the disputed supply within the meaning of the Act of 1909.

On the construction of the Act of Parliament, therefore, I am of opinion that the plaintiffs are entitled to succeed, and it becomes unnecessary to consider whether the corporation are, under the agreement, also debarred from doing what they claim the right to do. As to this, I will only say that as at present advised, I am not satisfied that supplying electricity themselves is within the terms of the agreement whereby their predecessors (to whose obligations the corporation succeed) bound themselves not to consent to the supply by other people.

As to the dictum-for it is no more than that -of North, J. above referred to, it, in my opinion, affords no guidance in the present case. It was uttered in reference to different statutory provisions, and in reference to totally different circumstances; I feel some difficulty in understanding why Eve, J. felt himself bound by it.

In my opinion, the appeal ought to be allowed and judgment given for the appellants for a declaration substantially in accordance with the claim of the amended statement of claim, but the exact terms require some consideration. Probably, seeing the position of the defendants, an injunction would not be necessary, but there should be liberty to apply.

[Div.

The appellants must have the costs here and below.

YOUNGER, L.J.-I have had the privilege of reading the judgments just delivered by my Lord and the Lord Justice, and I concur very respectfully in the conclusion which they have reached. For myself, I think perhaps more of the appellants' case under the agreement than does my Lord; but, being in entire agreement on their rights under the statute, it is unnecessary for me further to discuss that question. I think, with the other members of the court, that this appeal should be allowed.

Appeal allowed. Solicitors, Sydney Morse; Sharpe, Pritchard, and Co., for J. Ernest Jarratt, Southport.

HIGH COURT OF JUSTICE.

PROBATE, DIVORCE, AND ADMIRALTY

DIVISION.

DIVORCE BUSINESS.

March 19.

(Before HILL, J.)

SMITH V. SMITH. (a)

Divorce-Practice-Act on petition-Security for costs of wife petitioner by respondent husband -Divorce Rule 158.

The court has jurisdiction to order a respondent husband, who by act on petition has challenged the court's jurisdiction to hear the petition, nevertheless to pay the costs of the petitioning wife up to the setting down of the act on petition, and to give security for her costs of the hearing thereof.

THIS was a wife's petition for dissolution of marriage on the ground of desertion for two years or upwards and adultery, and was filed on the 12th Oct. 1922, and served on the 4th Nov. at Edinburgh. The husband entered an appearance under protest, and on the 21st Nov. filed an act on petition, claiming that he was domiciled in Scotland, and that the English court therefore had no jurisdiction. The petitioner's solicitors on the 28th Nov. filed on her behalf an answer to the act on petition, and on the 6th Dec. 1922 the respondent delivered a reply joining issue. Affidavit evidence was filed, and the respondent's solicitors gave notice that they had set down the act on petition for hearing in the defended list. The petitioner's solicitors thereupon submitted a bill of costs for taxation, and on the 21st Feb. 1923 it came before the registrar for taxation. The respondent's solicitors contended that the registrar had in the circumstances no jurisdiction to tax costs. The registrar, however, taxed the costs, and ordered the respondent to give security for 177. as the wife's costs of the hearing of the act on petition, but directed that the order should not be drawn up for (a) Reported by J. A. C. SKINNER, Esq., Barrister-at-Law.

fourteen days to allow an opportunity of appeal to the judge.

The respondent appealed by summons, argued in chambers by Frampton for the husband, and D. Cotes-Preedy for the wife, and adjourned into court for judgment.

HILL, J., after stating the facts said :-The husband's contention is that, as he has appeared under protest he cannot be ordered to pay or secure costs until the question of the court's jurisdiction to entertain the suit has been decided against him. I am informed that the practice has been to order security to be given for a wife's costs in the circumstances in question, and I am reminded that I assumed jurisdiction to do so in the recent unreported case of Gran v. Gran (The Times Newspaper of the 15th Feb., and the 1st and 19th March, 1921) in which, indeed, I made an order of attachment against the respondent for having failed to comply with an order for security, and Horridge, J. in Graham v. Graham (128 L. T. Rep. 639; (1923) P. 31, at p. 38) gave the wife her costs up to the amount of the security, though he had allowed the act on petition, and dismissed the petition.

These authorities satisfy me that the court has jurisdiction as to costs, though the husband is raising a controversy as to its jurisdiction to hear the suit.

An act on petition is a stage of the cause. The husband's summons appealing against the order of the registrar must be dismissed with costs.

Solicitors for the petitioner, Kimber, Bull, Holland, Clappé, and Co.

Solicitors for the respondent, W. L. Dell and

Co.

PRIZE COURT.

Feb. 1 and 26.

(Before Sir HENRY DUKE, P.)

THE WILHELMINA (α).

Prize Court-Limitation of actions-Alleged illegal seizure of trawler-Confiscation of the cargo-Detention-Claim for declaration of illegality of seizure and detention-Claim against Procurator-General as representative of captors-Claim lodged more than six months after the cause of action arose-Public Authorities Protection Act 1893 (56 & 57 Vict. c. 61). The Public Authorities Protection Act 1893, by which no action will lie against any person for any act done in pursuance or execution or intended execution of any public duty or authority, has no application to proceedings in the Prize Court. In an action against the Procurator-General alleging illegal seizure and detention of a certain trawler and her cargo, brought more than six months after the cause of action in respect thereof arose,

(a) Reported by GEOFFREY HUTCHINSON, Esq., Barrister

at-Law.

[PRIZE CT.

Held, that the claim was not statute barred by reason of the Public Authorities Protection Act 1893.

THE claimants were the owners and crew of the Dutch trawler Wilhelmina and her cargo, which were seized by British cruisers on the 26th June 1916 at a point some twenty-nine miles south of the Icelandic fishing grounds, when the vessels were returning to Ymuiden, Holland, on the conclusion of a fishing voyage. The Wilhelmina was taken to Peterhead, where she was required to discharge her cargo of fish, the proceeds of which were in court, and subsequently to Dundee, where she was released and permitted to return to Holland.

On the 10th Feb. 1922 the writ in the present action was issued against the ProcuratorGeneral, representing the captors, claiming a declaration that the seizure and detention of the Wilhelmina was illegal and that her owners were entitled to damages in respect thereof, and for consequential relief. The ProcuratorGeneral by his answer raised, amongst other defences, the defence that the action was barred by sect. 1 of the Public Authorities Protection Act 1893.

By sect. 1 of the Public Authorities Protection Act 1893, it is provided :

Where after the commencement of this Act any action, prosecution or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament or of any public duty or authority or in respect of any alleged neglect or default in the execution of any act, duty or authority, the following provisions shall have effect: (a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of

The question of the application of the statute was tried as a preliminary issue.

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Bateson, K.C., J. H. Harris, and G. St. C. Pilcher for the claimants.-The Public Authorities Protection Act does not apply for the following reasons :-(i.) These proceedings are not an action or other proceeding" within the meaning of the Act. (ii.) The claim is against the captor. The Procurator-General, representing the captor, is not a public authority. (iii.) Assuming the act of the captor to be wholly illegal, it could not therefore have been done in the execution or purported execution of a public duty. An "action" is defined by sect. 100 of the Judicature Act as a civil proceeding. Prize proceedings are not civil proceedings, and therefore statutes of limitation do not apply to them:

Story's Principles and Practice of Prize
Courts (Pratt's edition, at p. 40);
The Mentor, 1799, 1 c. Rob. 179;
The Huldah, 1801, 3 c. Rob. 235.

The Act is strictly construed and has been held not to apply to a number of different classes of actions, e.g., a prerogative writ of mandamus (see Rex v. Port of London Authority, 120 L. T. Rep. 177; (1919) 1 K. B. 176),

a writ of certiorari (see Roberts v. Metropolitan Borough of Battersea, 110 L. T. Rep. 566), claims for compensation under the Lands Clauses Acts (see Delany v. Metropolitan Board of Works, 16 L. T. Rep. 386; L. Rep. 2 C. P. 532; affirmed 17 L. T. Rep. 262; L. Rep. 3 C. P. 111), an action in rem (see The Burns, 96 L. T. Rep. 684; (1907) P. 137; 10 Asp. Mar. Law Cas. 424; The Longford, 60 L. T. Rep. 373; 14 Prob. Div. 34; 6 Asp. Mar. Law Cas. 371), an arbitration (see Glasgow Corporation v. Smithfield Argentine Meat Company, 1912, S. C. 364, 373). There was formerly a limitation period of six months provided by sect. 51 of the Naval Prize Act 1864, but that section did not apply to proceedings like the present proceedings. Sect. 51 is admittedly repealed with parts of other Acts by sect. 2 of the Public Authorities Protection Act. The claim is against the captor, and the Procurator-General stands in the same position as the captor for all purposes:

The Oscar II., 123 L. T. Rep. 474; (1920) A. C. 748; 15 Asp. Mar. Law Cas. 14. The detention was wholly illegal, and the act of the captor is not, therefore, an act in execution or intended execution of any public duty.

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Sir Douglas Hogg (A.-G.), Sir Thomas Inskip (S.-G.), and Lilley for the Procurator-General.— As to the first point, "action" in sect. 100 of the Judicature Act means civil" as opposed to criminal proceedings. An action" means an action for damages: (see Bankes, L.J., in Rex v. Port of London Authority, sup.). The other cases cited are distinguishable on the ground that there was no action against any person." It has been held that the Act applies

to officers of the Crown :

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The Danube II., 125 L. T. Rep. 156; (1921) P. 183; 15 Asp. Mar. Law Cas. 187.

This action must, therefore, if it be against the captor, be against an officer of the Crown, who is a protected person; for otherwise it is an action against the Crown, against whom no action lies. The repeal of sect. 51 of the Naval Prize Act 1864 by sect. 2 of the Public Authorities Protection Act indicates an intention in the Legislature that proceedings in prize should be made subject to the Act. [Reference was made to The Zamora, 114 L. T. Rep. 626; (1916) 2 A. C. 77; 13 Asp. Mar. Law Cas. 330.]

Bateson, K.C. replied.

Sir HENRY DUKE, P.-On the 10th Feb. 1921 the plaintiffs, the owners and crew of the Dutch steam trawler Wilhelmina, instituted by a writ in prize, to which His Majesty's Procurator-General was made defendant, a cause in which they claimed declarations that a certain seizure and detention of the Wilhelmina were illegal and that they are entitled to damages in respect thereof, and for consequential relief. The writ was issued in pursuance of the Prize Court Rules of 1914, Orders II. and V. The Procurator-General appeared,

[PRIZE CT.

and the plaintiffs delivered a petition whereby they allege that in June 1916 the Wilhelmina, being a neutral vessel with no contraband on board, was taken as prize by one of His Majesty's ships on the high seas in a voyage from the Iceland fishing grounds to Ymuiden in Holland, was placed under a prize crew and brought into Lerwick, and from thence successively ordered to Kirkwall, Peterhead, and Dundee, and detained until Sept. 1916; that her perishable cargo of fish had to be jettisoned and that the remainder, consisting of salted fish and livers in barrels was sold and the proceeds paid into court. The petition concludes by praying the declarations set out in the writ, with an alternative claim for payment to the plaintiffs of the proceeds of the alleged sale.

The Procurator-General by his answers justifies the acts complained of in the petition on grounds which would appear primâ facie to warrant a seizure and detention in prize, and a sale under the Prize Rules, and pleads further as to the proceeds of sale his consent before writ to the release of such proceeds to the plaintiffs "subject to the proper deductions shown in the accounts of the Admiralty Marshal." The Procurator-General further pleads by par. 4 of his answer, as follows: "In answer to the claims made by the petition herein other than the claims to the said proceeds the defendants will rely upon the provisions of the statute 56 & 57 Vict. c. 61, s. 1." The statute so pleaded is the Public Authorities Protection Act 1893.

The question of law raised by the answer of the Procurator-General has been brought to hearing and is now to be disposed of.

The limitation of actions contained in the Public Authorities Protection Act 1893, and relied upon by the Procurator-General, is expressed so far as is material here, in the words following: "Where after the commencement of this Act any action prosecution or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament or of any public duty or authority or in respect of any alleged neglect or default in the execution of the any such act, duty or authority action prosecution or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of or in case of a continuance of injury or damage within six months next after the ceasing thereof."

No question was raised at the hearing as to the precise mode in which the claim of the plaintiffs has been framed in their writ and petition, the object in view on the part of the defendant being, as I understand, to determine whether the claims in prize of the plaintiffs are barred by the statute. The principal points discussed were these: Is this cause in prize an action or proceeding within the meaning of the statute? Is the Procurator-General within the protection of the statute? The plaintiffs alleging that the acts complained of were

wholly illegal, does the statute in any event apply?

By reason of the payment into court of the proceeds of the sales in question the jurisdiction in prize has undoubtedly attached. As is pointed out in the judgment of the Privy Council in The Zamora (114 L. T. Rep. 626; (1916) 2 A. C. 77, at p. 108; 13 Asp. Mar. Law Cas. 330): "The jurisdiction of the Prize Court attaches as soon as there is a seizure in prize. If captors in prize do not promptly bring in property seized for adjudication the court will at the instance of a party aggrieved compel them to do so, and from the moment of seizure the rights of all parties are governed by international law." Under the circumstances of the case if any question had arisen as to the form of the plaintiffs' claim I should no doubt have so dealt with it as to secure that the broad question raised by the plea of the statute could be determined.

In the course of the argument numerous decisions of English courts of municipal jurisdiction as to the construction and scope of the statute in question were cited on both sides. The Attorney-General relied in particular upon the judgment in The Danube II. (125 L. T. Rep. 156; (1921) P. 183; 15 Asp. Mar. Law Cas. 187), for the proposition that a commissioned naval officer in the service of the Crown acting in the course of his duty is a person acting in the execution of a public duty or authority and entitled to the protection of the statute.

Upon the question of construction reference was made also to the definition of "action in the Judicature Act 1873, s. 100, and in answer to an observation that statutes of limitation have not heretofore been deemed to apply to claims in prize the Attorney-General argued that the Public Authorities Protection Act 1893 falls outside of any presumption founded on the old practice in prize by reason that it deals expressly with a limitation of actions which was enacted with regard to certain matters in this jurisdiction by the Naval Prize Act 1864.

[PRIZE CT.

pone the question of possible liability of the Procurator-General in case a wilful excess should be proved against the captor, and of the limits within which, if at all, that liability may be enforceable.

The limitation of actions in the Naval Prize Act 1864 protects a person acting under the authority or in the execution or intended execution or in pursuance of the Act from liability to any action or proceeding for any alleged irregularity or trespass or other act or thing done or omitted by him under the Act, unless the action is commenced or the proceedings brought within six months. Among the provisions of the Act which are material for consideration in this case are sect. 16, which provides that every ship taken in prize and brought into port within the jurisdiction of the Prize Court shall forthwith be delivered to the Marshal; sect. 17, which, read together with sect. 31, imposes upon a captor of a ship or goods the duty with all practical speed to bring the ship's papers into the Registry and to make the proper affidavit; sect. 18, which provides that as soon as the affidavit as to ship's papers is filed, citations shall issue to show cause why ship (or goods) should not be condemned; sect. 23, which provides for the admission of claims of interest in ship or goods at any time before the decree in the cause; sect. 26-29, which deal with the sale and custody of proceeds of sale of ships and goods in prize; and sect. 32, which gives statutory effect to the old practice whereby a claimant is entitled to have a monition to proceed to adjudication in case a captor shall fail to institute or prosecute with effect proceedings for adjudication. Sect. 55 of the Act of 1864 is also material. It provides that nothing in the Act shall "take away abridge or control further or otherwise than is expressly provided by this Act the jurisdiction or authority of a Prize Court to take cognisance of and judicially proceed upon any capture seizure prize or refusal of any ship or goods and to hear or determine the same according to the course of Admiralty and the law of nations or any other jurisdiction or authority of or exerciseable by a Prize Court.” I pause here to say that no action has been taken in this court or as it appeared elsewhere-to raise directly the question whether the enactments in sect. 17 to 22 of the Naval Prize Act 1864 have been obeyed by the captors of the Wilhelmina, and that the limitation enacted in sect. 51 of the Act is now no doubt an effectual bar to any effective proceeding in that behalf. Considerations arise with respect to this matter which are relevant to the question I have to determine.

That any statute of limitations extended to any proceeding in Prize before the Naval Prize Act of 1864 was not contended. I think it could not be. Lord Stowell's judgments in cases like The Mentor (1 C. Rob. 179), The Huldah (3 C. Rob. 235), and The Susannah (6 C. Rob. 48), make it clear, on the one hand, that the right to prosecute a claim in