1903 V. BOARD OF Channell J. seaman's wages on the ground of desertion must be determined KESLAKE by a Court of competent jurisdiction, and cannot be the subject of a private arrangement between the seaman and the owners. It is clear from the language of ss. 221 and 232 that forfeiture of wages is regarded as a penalty for the offence of desertion to be enforced by criminal proceedings. It is equally clear that the private arrangement which was come to in this case was in the nature of an arrangement with respect to the forfeiture of the seaman's wages. That being so, although, no doubt, the seaman signed the authority to the appellant to make the deduction with full knowledge of what he was doing, the arrangement was not one which it was the duty of the superintendent to recognise by being present when the wages were paid. I say nothing as to what would be the effect of a seaman agreeing to a deduction from his wages after desertion in consideration of the owner refraining from suing him for damages for breach of contract. That case is not now before the Court, and would be a very different one from the present case. Appeal dismissed. Solicitors for appellant: Botterell & Roche. F. O. R. [IN THE COURT OF APPEAL.] IN THE MATTER OF AN ARBITRATION BETWEEN STONE AND HASTIE. London-Buildings-Party Wall-Expense of Raising-Building Notice- The owners of a house in London made an addition to it which involved the raising of the party wall between it and the adjoining house. They afterwards let the house to the appellant for twenty-one years. Some time after the respondent, who was the owner of the adjoining house, pulled it down and rebuilt it, thereby using the party wall to a greater extent than before the alteration. The respondent having given notice to the appellant of his intention to do the work under s. 90 of the London Building Act, 1894, and the appellant not having consented thereto, a difference thereupon arose between the respondent, as building owner, and the appellant, as adjoining owner, within the meaning of s. 90 of the Act. Arbitrators having been appointed to settle that difference under s. 91 of the Act, they by their award (inter alia) directed payment by the respondent to the appellant of a sum of money in respect of the extended use by the respondent of the party wall: Held, that the appellant was not, as tenant of the first-mentioned house, entitled to any such payment, and that the arbitrators, in awarding such a payment, had acted beyond their jurisdiction, and consequently pro tanto their award was invalid. APPEAL from the order of Walton J. at chambers as after mentioned. The appellant Hastie was the lessee for a term of twenty-one years of a house known as No. 17, Queen Street, Mayfair. The respondent Stone was the assignee of the ground lease of the adjoining house, No. 16. Before the lease to the appellant, his lessors, who were trustees, had made some addition to the house No. 17, which involved the raising of the party wall between that house and No. 16. Some time after the lease to the appellant the respondent Stone pulled down the house No. 16, and rebuilt it, thereby using the party wall to a greater extent than before the alteration. Before commencing the work, he served upon the appellant a notice of his intention C. A. 1903 July 29. C. A. 1903 STONE AND In re. to do the work under s. 90 of the London Building Act, 1894. The appellant did not within the time specified by the section consent to the work; and consequently by the terms of the section a difference thereupon arose between the respondent as building owner and the appellant as adjoining owner. The respondent and the appellant each appointed a surveyor, and the two surveyors appointed a third surveyor, for the purpose of settling the difference in pursuance of s. 91 of the London Building Act, 1894. The arbitrators subsequently made an award in the matter by which, after reciting that, the works in connection with the party wall having been carried out by the building owner, certain claims were made upon him by the adjoining owner for compensation for damage done to his premises during the building operations, and for a moiety of the value of the wall in excess of that portion which was formerly used as a party wall of the buildings occupying the site of No. 16 removed that was now made use of in the erection of the new buildings of the building owner, they awarded that the sum of 187. should be paid by the building owner to the adjoining owner in full discharge of all damage caused to the premises of the adjoining owner by reason of the works in connection with the new buildings (1), and that the sum of 381. 10s. 6d. should be paid by the building owner to the adjoining owner in payment for the extra use made of the said wall as a party wall for the new building in excess of the portion previously used as a party wall for the old buildings formerly occupying the site of No. 16, Queen Street. They also gave certain directions as to the costs of the award. The respondent did not appeal to the county court against the award. The appellant applied to a master at chambers for leave to enforce the award under s. 12 of the Arbitration Act, 1889. The master granted the application. On appeal against his order Walton J. allowed the appeal, holding the award to be invalid as to the above-mentioned sum of 381. 10s. 6d. (2) (1) No question was raised as to the validity of the award as regards this sum of 181. (2) The learned judge considered the case and wrote a judgment, in which, after stating the facts, he proceeded as follows: "I am invited by both parties to decide the question Hansell, for the appellant. C. A. 1903 July 28. First, there not having been any appeal to the county court against the award in this case, by virtue of s. 91, sub-s. 2, of the London Building STONE AND Act, 1894, it is conclusive, and the respondent cannot now question its validity. Secondly, the respondent having through his arbitrator gone into the question as to the payment for extended use of the party wall, and his own arbitrator having joined in making the award, the respondent cannot now dispute the jurisdiction of the arbitrators in relation to it. Thirdly, it was competent to the arbitrators to award HASTIE, In re. whether or not the award is as to the 381. 10s. 6d. ultra vires and void. For this purpose it is necessary to consider whether the claim in question was a matter in difference between Mr. Hastie and Mr. Stone, arising with reference to the work to which the notice of January 18, 1902, related. It was urged on behalf of Mr. Stone that the party wall was raised at the expense of the trustees and not of Mr. Hastie, that he became tenant of No. 17 under a lease which was granted after the party wall had been raised, and the expense incurred by the trustees, and that the payment by Mr. Stone of a proportion of such expense was a matter between Mr. Stone and the trustees, and not a matter in difference between Mr. Hastie and Mr. Stone arising with reference to the work to which the notice related. There was no evidence, and indeed no suggestion, that the trustees had assigned to Mr. Hastie their right to recover from the owner of No. 16 a proportion of the expense incurred by the trustees in raising the party wall. It certainly does not necessarily follow from the fact that the trustees granted a lease of No. 17 to Mr. Hastie that he had become entitled to any of their rights in respect of such con- C. A. 1903 STONE AND payment of a sum to the appellant in respect of the extended use by the respondent of the party wall. Sect. 95, sub-s. 2, of the London Building Act, 1894, provides that, where a building owner raises a party structure, he shall in the first instance bear the expense of raising it, but that, if at any time the adjoining owner makes use of the party structure so raised, beyond the use of it made by him before the alteration, he shall bear a due proportion of the expenses of raising the structure, having regard to the use made of it by him. The appellant's lessors were the building owners in respect of the raising of the party wall, and the respondent, as an adjoining owner who has since made use of the new part of the wall, is liable now to pay for the use of it. The question is to whom such payment is due. The appellant, as occupying tenant of No. 17 for a term of years, comes within the definition of "owner" given by s. 5, sub-s. 29, of the London Building Act, 1894, and it is submitted that he is the person entitled as against the respondent to payment in respect of the extended use of the party wall under s. 95, sub-s. 2, of the Act. A greater burden is thereby thrown upon the premises of which he is in occupation as lessee. The Act clearly appears to contemplate that the matter shall be one between the persons who are adjoining owners at the time when the payment in respect of the extended user becomes due. Sect. 91, sub-s. 1, of the Act empowers the arbitrators to determine "any other matter arising out of or incidental to such difference." Those words clearly cover the matter of the right to payment for the extended use by the respondent of the wall. Clavell Salter, for the respondent. Sect. 91, sub-s. 2, of the London Building Act, 1894, only applies to an award made by the arbitrators within the jurisdiction given to them by the Act. It cannot apply to their award so far as it deals with a matter entirely outside that jurisdiction. It is not a question here of a voluntary submission to arbitration. The arbitration is compulsory under the statute, and the jurisdiction of the arbitrators depends on, and is confined within the limits of, the statute. The arbitrators had no jurisdiction to award any sum to the appellant in respect of the expense of originally |