56 CHANCERY DIVISION. (VOL. XXXVIII. 0.4. — not by this waive his right to a deposit. Mr. Higgins undertook 1gss_ to pay it if required. If the liquidator is satisfied as to the hve Solvency of the Appellants, there is no need to act on the under- Wést Devos taking, if he is not, the Appellants’ solicitors must undertake to Gnear Co: sous Mve. pay the liquidator’s.costs to an amount not exceeding £20, Lirvvtey, L. Lentirely agree. Bowen, L.J.:— I am of the same opinion. As regards the deposit, the rule « genevalia specialibug non derogant” applies, and I remember it having been similarly applied by the Court of Appeal as to a special rule relating to costs in a County Court. Solicitors for the Appellants: Snell, Son, & Greenip. Solicitors for the Registrar: Coode, Kingdon, dt Cotton. Solicitors for the other Respondents: Kerly, Son, &. Verden. H.C. J. CAL COOKE v. NEW RIVER COMPANY. = [1ess C. 2392) ee New River Company—Supply by Meter— Dwelling-house.” ‘A person requiring a supply of water in a house for domestic purposes and also for purposes for which no rate is fixed by the New River Company's ‘Act, 1852, is not entitled, under sect. 41 of the Act, to require the company: to supply by meter the water for domestic purposes as well as the water for other purposes. Judgment of Kekewich, J., reversed. Semble, that any house in which water is required for domestic purposes is a “ dwelling-house” within the meaning of sect. 85 of the Act, though no person sleeps or takes meals there. THE Plaintiffs corried on business as carpet warehousemen at 12, Friday Street, in the city of London, on premises which they had occupied from 1870. By par. 1 of their statement of claim they alleged, “The saidhereditaments are in a street within theVOL. XXXVIIL] CHANCERY DIVISION. limits of the Defendants as defined by the New River Company’s Act, 1852, in which street aro laid pipes of the Defendants.” The property consisted of a warehouse of six storeys, all of which were used for storing carpets. Access from one to another was obtained by an internal staircase and a hydraulic lift. Each floor ran through the whole length and breadth of the building. ‘Phere were no internal partitions, except that a small space of each floor was partitioned off as a counting-house. About fifty persons were employed; no one took his meals in the building, and there was no provision for cooking or supplying food. No one was on the premises except during the hours of business from § at. to Sem. Until shortly before the commencement of this litigation the New River Company supplied water to the premises by two pipes. One pipe was for working the hydraulic lift, and the water was supplied by meter under an agreement of November, 1871, be- tween the Plaintiff and the company. ‘The other pipe supplied water for drinking purposes and for the purpose of being used in urinals, water-closets, and wash-hand basins, and for washing the house. There was no meter on this pipe, and the Plaintiffs were charged according to the rateable value of the premises. In the summer of 1886, the Plaintiffs gave notice to the com- pany to determine the agreement of November, 1871, and called upon the company to supply the premises with water for all purposes by meter. ‘This the company refused to do, and on the 23rd of June, 1886, this action was commenced. By their state- ment of claim the Plaintiffs claimed a declaration, “that they as consumers of water supplied by the Defendants under the New River Company's Act, 1852 (1) and the Acts incorporated there- (2) 15 & 16 Viet.c, elx.: Sect. 35. “'That the company shall, person a sufficient supply of water for domestic purposes at the rates herein- at the request of the owner or ocoupier of any house or part of a house in any street within their limits in which any pipe of the company shall be laid, or of any person who, under the provisions of this Act or any Act incorporated there- with, shall be entitled to demand a sup- ply of water for domestic purposes, fur- nish to such.owner or occupier or other after specified (that is to say): For water supplied to any dwelling-house : Where the annual value of the dwell- ing-houso shall not exceed £200 at a rate per centum per annum on such value not exceeding £4; Where such annual valueshall exceed £200, at a rato per centum per annum on such value not exceeding £8: If there be a water- 57 OA. 1888 Cooxe ve New River ‘Company.58 OA. 1888 Cooxe v. New Riven ‘Company. CHANCERY DIVISION. (VOL. XXXVIIL with, are entitled to have water supplied by meter by the Defen- dants to their warehouse, No. 12, Friday Street, in tho city of London, for the purpose of working a lift necessary for the carry- ing on of their business, and’also for all other purposes in connec- tion with the same hereditaments, at the charges provided by the 4st section of the New River Company's Act, 1852.” The company by the 4th paragraph of their defence said: “The defendants do not and never did contend that in respect of water used for the purposes of the hydraulic lift (being a machine or apparatus within sect. 38 of the New River Company's Act, 1852) or for any non-domestic purpose, payment must be made on the basis of annual value of the hereditaments, and they never by letter or otherwise refused to supply water by meter to the Plain- tiffs for any such purpose. Tho Defendants submit that the Plaintiffs are not entitled to such supply for non-domestic pur- poses at the rates mentioned in sect. 41 except by agreement, and they are ready and willing to enter into an agreement for the closot or water-closets, or fixed bath or baths, or any high service in such Awelling-house or place, then, in addi~ tion to the rates above specified, the following rates shall be payable (that is to say): Where the annual value of such house shall exceed £30 but shall not exceed £50 a rate not exceeding 4s, per annum for each single water- closet, fixed bath, or high service, and a further sum of 2s. for cach addi- tional water-closet, fixed bath, or high service.” The section went on to fix the extra rates for houses from £50 to £100, £100 to £200, £200 to £300, and £300 and upwards. Sect. 38, “That a supply of water for domestic purposes shall not include a supply of water for steam-engines or railway purposes, or for warming or ventilating purposes, or for work- ing any machine or apparatus, or for baths, horses, cattle, or for washing carriages, or for gardens, fountains, or ornamental purposes, or for flushing sowers or drains, or for any trade or manufacture or business requiring an extra supply of water.” Sect. 40. “That the company may supply any person or body within their limits with water, to be used within such limits for other than domestic purposes, at such rate and upon such terms and conditions as shall be agreed upon between the company and the person or body requiring such supply.” Sect, 41. “That the company shall, at the request of any consumer of water for purposes other than the purposes for or in respect of which the rates or charges are hereinbefore provided or limited, or at their own instance, afford a supply of water by means of a meter or other instrument or mode for mea~ suring and ascertaining the quantity of water so supplied, and may charge for such supply not exceeding the following rates per 1000 gallons (that is to say): When the quarterly con- sumption of water shall not exceed 50,000 gallons, 74d.” ..VOL. XXXVIIL) CHANCERY DIVISION. supply of water to the Plaintiffs by moter for their hydraulic lift, or for any other non-domestic purpose, and as to the rates to be charged for the same.” Mr. Justice Kekewich decided that the company were bound to supply water to the premises by meter for domestic purposes as well as for the lift (1). The company appealed, and the appeal was argued on the 10th of February, 1888. Sir B. B. Webster, A.G., Warmington, Q.C., and V. Hawkins, for the appeal :— We say that “dwelling-house” in sect. 35 is used in a wide sense, and is not to be confined to a house in which people live, but includes every building which is so far a dwelling-house as to require water for domestic purposes, ‘The Plaintiffs, then, are entitled to a supply for domestic purposes, but they are only en- titled according to the rates provided by that section, ic, they must pay for it according to the rateable value of the house. Sect. 41 only enables a consumer to require a supply by meter for purposes other than the purposes for which rates had been fixed in the earlier part of the Act. Metropolitan Board of Works v. New River Company (2) supports our construction of sect. 41, that it is not compulsory, for “ shall ” is connected not only with what the company do at the request of the consumer but with what they do of their own accord. Sir H. Davey, Q.C., Finlay, Q.C., and Dobbs, for the Plaintifis :— ‘We contend that sect. 85 provides only for a supply of water for domestic purposes to dwelling-houses, that this is not a dwell- ing-house, and that therefore no rate is fixed for its supply by that section, and that sect. 41 applies to every case where a sup- ply is required for which a rate is not fixed by the previous sec- tions. Our view makes the Act reasonable, for if the water required in City buildings is to be paid for according to their rateable value the payment will be out of all reasonable propor- tions to the quantity of water consumed. Now, as to sect. 35, the Appellants wish to make “ dwelling-houso” synonymous with « building,” but why should it not havo its proper sense? (A) 36 Ch. D. 641. (2) 87 L. T. (N.S.) 124; 8.C.in C. A. not reported, 59 OAL 1888 Cooxr % New River ‘Company,60. CHANCERY DIVISION. (VOL, XXXVIII. QA. [Corroy, L.J.:—The 85th section speaks both of“ house ” and 1888 dwelling-house.” Which is the governing word? Do you say Coax: that you are not within sect. 35 ?] : Newer That is what we contend for—that sect. 85 applies to nothing Company. =" but dwelling-houses—no charge is made except for a supply to Awelling-houses. ‘This building is in no sense a dwelling-house. Then sect. 41 requires the company to give a supply by meter in all cases where a rate has not been prescribed by the Act. “Con- sumer of water” must mean a person occupying a building for which he wants a water supply, otherwise the Act would make the actual consumption precede the obligation to supply the water. [Bowen, L.J.:—May not clause 41 be read: “The company shall—at the request of any consumer of water—for purposes ‘other than the purposes for or in respect of which the rates or charges are hereinbefore provided.” The words “at their own instance” will not fit in with that construction. [Bowen, L.J.:—How do you construe those words ?] As laying down that the company may at their option insist on supplying by meter. ' If “consumer of water” means a person actually consuming water—a person who does not want water for domestic purposes cannot get a supply for other purposes at all. Sir BE, Webster, A.G., in reply :— ‘We contend that the company is bound to supply water for domestic purposes to every building, whether it isin the ordinary sense of the word “a dwelling-house” or not, and that whoever -has such a supply is entitled to call upon the company for a supply by meter for any other purposes. 1888.. Feb. 18. Corroy, LJ. : ‘This is an appeal from a decision of Mr. Justice Kekewich that under sect. 41 of the New River Company’s special Act the Plain- tiffs were entitled to demand a supply of water by meter for domestic purposes at the rates therein mentioned. ‘The question turns upon the-proper construction of sect. 41 of the Act, thoughVOL. XXXVIILJ] CHANCERY DIVISION undoubtedly other sections, and also sections of the general Act, are to be looked to for the purpose of seeing what is the right interpretation of that section. ‘Under an agreement which subsisted for some years between the Plaintiffs and the New River Company, the Plaintiffs took and the company supplied water, but that agreement has come to an end, and the parties have not been able to come to terms as to renewing it. This house, belonging to the Plaintiffs, is very much of a warehouse, but in certain portions of it they require water for what the Act calls domestic purposes. They have a hydraulic lift there for which they xequire water, and the com- pony are perfectly ready to supply water for that purpose accord- ing to meter; but the Plaintiffs say: “This is not a dwelling- house, and you must, for domestic purposes as well as for the purposes of the lift, provide us with water by meter.” Mr. Justice Kekewich has decided that under sect. 41, which enacts that the company “shall, at the request of any consumer of water for purposes other than the purposes for or in respect of which the rates or charges are hereinbefore provided or limited, or at their own instance, afford a supply of water by means of a meter,” the company are bound to supply water by meter to the Plain- tiffs for domestic purposes in the building in question. It was contended on behalf of the company by the Attorney-General that the word “shall” in that section cannot be treated as com- pulsory, for, as he very truly said, that “shall” is coupled not only with what is to be done at the request of any consumer, but also with what may be done “at their own instance,” and that compulsion is out of the question as to what they are going to do at their own instance—that is, because they desire to do it. That is very true. The section is very badly framed, but I think that we ought to give “shall” a meaning of compulsion where it applies to what is to be done at the request of every consumer, although where it applies to what is to be done at the instance of the company, then of necessity “shall” cannot have the sense of compulsion. ‘The section, in fact, ought to be read, “they may, if they like, at their own instance, but they shall where they are required to do so by any consumer.” But who can compel them, and what he can compel them to do, is another question. 61 OA, 1888 Coome « New River ‘Company.62 OA. 1888 Cooxe . New River Company. ot CHANCERY DIVISION. (VOL. XXXVIIL. It has been contended on behalf of the Respondents that “any consumer of water” means any person who desires to consume water—who desires to have from the water company water that he may consume, Now I have read the special Act and I have read the general Act, for the purpose of seeing whether there is anything that can enable us or require us to give other than the natural construction to these words “any consumer,” and I can find nothing. That being s0, according to the legal rules of construction, which are, of course, proper rules, we must give the words their ordinary meaning ; and in my opinion “any consumer of water” must mean a person who is consuming water, or it may be a person who, by virtue of an agreement with the company, or under other sections of the Act, can compel them to supply him with water, and is desirous of exercising that right. Then for what purposes can he require water to be supplied to him by meter? It is “for purposes other than the purposes for or in respect of which the rates or charges are hereinbefore pro- vided or limited.” Now sect. 35 provides that water shall be supplied for domestic purposes and for some purposes which are not under the Act domestic purposes (for fixed baths aro by soct. 88 said not to be domestic purposes) at the rates thereinafter specified, and it goes on to provide a rate for domestic purposes, and for some purposes which according to sect. 38 aro not domestic purposes. But there is an expression in that section which has given rise to an argument as to the construction of sect. 41. For it was contended by Sir Horace Davey that “other than the purposes for or in respect of which the rates or charges are hereinbefore provided” must mean other than the purposes of use for domestic purposes in a dwelling-house, because he says no rate is fixed except a rate for a supply of water for domestic purposes in a dwelling-house. Now I do not think that under sect. 35 the rates are fixed only for what would be called a dwell- ing-house in ordinary parlance, or in legal parlance otherwise than for the purposes of this Act, for sect. 58 of the general Act contains a power to the occupier of overy dwelling-house, when he has done certain things, to require a sufficient-supply of water for his domestic purposes at the rate mentioned in the special Act. Sect. 34 gives a right to certain persons on certainVOL. XXXVI] CHANCERY DIVISION. conditions to require a supply of water where the mains have been already extended to the neighbourhood of the houses occupied by them. Then by sect, 85 “the company shall, at the request of OA. 1888 Coons 63 the owner or occupier of any house or part of a house in any a street within their limits in which any pipe of the company shall Corany. be laid” (« pipe” there undoubtedly means “main”) “or of any —cetim Lt. person who, under the provisions’of this Act or any Act incorpo- rated therewith, shall be 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 purposes,”—that would probably refer to those persons who, though not living in the street where there are already mains of the company, acquired the right under sect. 34 to compel the company on the condi- tions therein mentioned to extend their mains into their street, so as to enable them to get a supply of water. Then what right does the section give to the owner or occupier—“ shall be entitled to demand a supply of water for domestic purposes at the rates hereinafter specified.” ‘Then it goes on, “ that is to say, for water supplied to any dwelling-house.” Then it fixes the amount of rate to be paid according to the annual value of the house, Then it goes on in these terms: “If there be a water-closet or water- closets or fixed bath or baths or any high service in such dwell- ing-house or place, then, in addition to the rates above specified, the following rates shall be payable (that is to say).” Now, as I mentioned already, that is including within this section that which sect, 88 says is not adomestic purpose. It is true that the rate is fixed with reference to the annual value of the “ dwelling- house,” but I think (though we do not decide the point, as it is unnecessary to do so) that in this section “dwelling-house” is used for any house which is so far adapted for the purposes to which a dwelling-house is usually adapted as to require water for domestic purposes, though it may not be a dwelling-house within the meaning of other Acts of Parliament, It does not necessarily follow that the rate is to be fixed according to the value of the whole house, for the power is given “to the occupier of a house or part of a house,” and there may be circumstances under which water is demanded for part only of the house, and it may be that that part of the house is to be considered within the purposes of% New River Company, Cotton, L.J. CHANCERY DIVISION. (VOL. XXXVII. this section as a dwelling-house, and that then the annual value of that part would fix the amount of the annual rate to be paid to the water company. In my opinion, however, we have not to consider whether in the present case there is a right to charge aceording to the whole value of the house, because, in my opinion, purposes other than those for which rates or charges are herein before provided or limited” refers only to the purposes, and is not necessarily confined to use for those purposes in a dwelling- house. ‘Phen as to the meaning of “consumer of water.” My opinion is that it means a person who either under the previous section actually enjoys or is consuming water, or is entitled so to do and has intimated his intention so to do for domestic purposes. I think that under sect. 41 if he requires water for any other pur- pose he may claim to be supplied with such additional water by meter at the rate mentioned in this section, The occupier of a dwelling-house who has, at the rates prescribed by sect. 35, water for purposes strictly domestic, and for those other purposes mentioned in that section, which, according to sect. 38, are not domestic, may say, “I require water for purposes for which I am not entitled to use the water with which you supply me, and I demand for that a supply of water by meter.” On the other hand the company may say, “You are entitled to water for domestic purposes and for certain other defined purposes: now we strongly suspect that you are using the water not solely for those purposes, and therefore, unless you satisfy us that that is not so, you must take by meter the water which you require to water your conservatory: or for any other purposes not within sect. 35.” That will give, I think, a reasonable meaning to the words “at their own instance,” they were inserted in order to prevent any questions between the company and their customer as to whether he is applying the water supplied, only for the pur- poses mentioned in sect. 35, or for other purposes to which he is not entitled to apply the water. But in the present case, with- out deciding whether this is a dwelling-house or not within the meaning of sect. 85, the Plaintifis, in my opinion, have no right, to demand that water shall be supplied to them by meter for all the purposes for which they want water in their building.VOL. XXXVIIL.] CHANCERY DIVISION. It appeared at first sight as if the case of Metropolitan Board of Works v. New River Company (1), in which the shorthand writer's note of the judgment of the Court of Appeal was fur- nished to us, decided the present case, but in reality it did not. The only decision there was, thet the public purpose for which the Metropolitan Board of Works required the supply of water was provided for by sect. 87 of the general Act, and did not come under sect. 41 of the private Act, which latter section was to provide for purposes not of a public but of a private character. In my opinion, therefore, Mr. Justice Kekewich’s decision was erroneous, and must be reversed. Linotey, LJ. :— This question turns upon the construction of sect. 41 of the New River Company's Act, 1852, though in order to understand that section it is necessary to consider also other sections of the Act. The Act is not drawn in language which is altogether free from difficulty, but in order to dispose of the question before us it appears to me sufficient to look at sects. 35, 38, and 41, and at the Plaintiffs’ own statement of their case. The Plaintiffs say in their amended statement of claim that they carry on the business of carpet warehousemen upon the hereditaments known as 12, Friday Street, in the city of London, and that they are the occupiers of those premises ‘in the said street within the limits of the company as defined by the New River Company's Act, 1852, in which street are laid pipes of the Defendants. Let us then look at sect. 35, which begins thus: “That the company shall, at the request of the owner or occupier of any house or part of a house in any street within their limits in which any pipe of the company shall be laid,” it then proceeds, “or of any person who, under the provisions of this Act or any Act ineorporated therewith, shall be 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 purposes at the rates hereinafter specified.” Now, stopping there, I fail () 87 L. 'T. (WS) 124, Vou. XXXVIIT. r a 65 OA. 1888 Coonz ” New River, ‘Company, Cotton, LJ.66 OA. 1888 Coore, New River Comrany, Lindley, 1aJ- CHANCERY DIVISION. (VOL. XXXVIII. altogether to see why the Plaintiffs are not precisely within the first part of that section. There is not a word there about dwell- ing-houses. We shall presently see what is said about dwelling- houses ; but the Plaintiffs are on their own shewing occupiers of a house, or part of a house, in a street within the limits in which pipes of the company are laid. ‘Then wo come to the rates, and we find the language immediately varied, for the rates run in this way: “for water supplied to any dwelling-house.” Then there is a reference to the annual value of the “ dwelling-house,” nothing being said about part of a “house” or “place.” ‘Then the section says, “If there be a water-closet or water-closets, or fixed bath or baths, or any high service in such dwelling-house or place,” the language being again varied. No doubt the varia- tion in language here, and the use of the words “ dwelling-house,” may be referred to in argument for the purpose of shewing that the expression “house” in the early part of sect. 35 means Awelling-house as distinguished from any other house. I doubt very much whether that is the true construction. I am disposed to think that anything is a dwelling-house within the meaning of this section, which is a house, and in which water is required for domestic purposes, or for any other purposes for which rates are fixed. I do not think it necessary to decide that question, but my impression is very strong that the Plaintiffs are within the word- ing of this section, and are entitled under it to a supply of water for domestic purposes under the schedule of rates in the section. Now it is very curious, and it shews how carelessly these Acts are drawn, that the schedule includes fixed baths; and then we are told by sect. 38 that baths are not intended to be included under the expression “ domestic purposes.” This is a blunder in point of language, but I do not think that it really affects the construction, We then come to sect. 41, and of course if the Plaintiffs are entitled to water for domestic purposes under sect. 35 they are not within sect. 41 for the same water. Sect. 41 enacts, “ That the company shall, at the request of any consumer of water for purposes other than the purposes for or in respect of which the rates or charges are hereinbefore provided or limited, or at their own instance, afford a supply of water by means of 2 meter orVOL. XXXVIIL] CHANCERY DIVISION. other instrument or mode for measuring and ascertaining the quantity of water so supplied.” Now let us bear in mind what ‘the controversy here is. The Plaintiffs by their statement of claim, asked for a declaration, and the learned Judge has made a declaration, that they as con- sumers of water supplied by the Defendants under the New River Company's Act, 1852, and the Acts incorporated therewith, are entitled to have water supplied by meter by the Defendants to their warehouse No. 12, Friday Street, for the purpose of working a lift necessary for the carrying on of their business. Now, as I understand it, there is no controversy before us about that lift. But then they go on further and ask for a declaration that they are entitled to a supply by meter for all other purposes in con- nection with the said hereditaments, that is to say, they contend they are entitled under sect. 41 to have water supplied by meter to this warehouse for domestic purposes, and Mr. Justice Keke- wich has so held. Now, if I am right in the opinion that they are within sect. 35, then, of course, they are not within sect. 41, but even if they are not within sect. 35 it appears to me equally difficult for them to bring themselves within sect. 41. I do not propose to give any definition of the expression “ consumer of water.” It includes, of course, any person who is an actual con- sumer of water, and it would, I suppose, include a person who is entitled to claim a supply of water under the Act and has applied for it, although he has not actually been supplied. Whether any person who wanted water, and who had not come under any arrangements for getting it, would be a consumer, is a different question, which it is wholly unnecessary to decide on the present occasion, ‘The key to the section appears to me to lie in the words, “ For purposes other than the purposes for or in respect of which the rates or charges are hereinbefore provided or limited.” Now the Plaintiffs want this water by meter for the purposes enumerated in sect. 35, and they cannot, therefore, it appears to me, without forcing and straining the language of sect. 41, bring themselves within that section even if they are not within sect. 35, as I think they are. Sect. 41 is very strangely worded; it says: “‘That the company shall, at the request of any consumer of water for purposes other than the purposes for or in respect of which F2 1 67 OA. 1888 Coxe t New River Couraxy, ; Lindley, Ta,68 CAL 1888 Cooxe Company. Lindley, 1.3. CHANCERY DIVISION. (VOL. XXXVIII. the rates or charges are hereinbefore provided or limited, or at their own instance.” ‘That is very perplexing. ‘The first words, “The company shall at the request of any consumer” are intelligible enough ; they impose upon the company the obligation or duty of supplying water in the case provided for by the section if required by the consumer, but what is meant by saying “the com- pany shall at their own instance” ? It must mean that they shall be entitled to do it. It cannot mean that they shall be obliged at their own instance; there is no sense in that. “I must at my own instance” can only be understood as meaning “I may.” Therefore, as I understand the section, it imposes upon the com- pany the obligation of supplying water by meter at the request of the consumer when he is entitled to it under the section, and the section imposes upon the consumer the obligation of taking water by meter at the instance of the company in similar cases, that is to say, the obligation is imposed by the word “shall” in different ways—upon the company in the first part of the section, upon the consumer in the other. It appears to me, that whatever the true construction of sect. 35 may be, the Plaintiffs have com- pletely failed in bringing themselves within sect. 41 so far as regards water required by them for domestic purposes. Bowsn, L.. In my opinion the only section which it is necessary to con- strue here is sect. 41, and I have arrived at the conclusion that sect. 41, although not altogether aptly worded, becomes reason- ably clear when you consider it in connection with the previous sections of the Act and with reference to the subject-matter. Part of the difficulty of construing sect. 41 arises from an air of compulsion which seems to rest upon it in consequence of tho words with which it begins, “the company shall,” ond the further embarrassment which is caused by the fact that after using words of compulsion in the earlier part of the section with regard to the company, the Legislature passes on to use words of option, still retaining the word “shall” when it deals with the action to be taken by the company on its own initiative. So that the section is a curiously worded one. The fact is that it breaks into two parts, ‘The first deals with the action which is to be taken byVOL, XXXVIILJ CHANCERY DIVISION. the company upon the initiative of others, the second with the action which is to be taken by the company upon its own initia- tive. The first branch is “‘The company shall, at the request of any consumer of water for purposes other than the purposes for or in respect of which the rates or charges are hereinbefore pro- vided.” ‘Chey are to act upon that branch on the request of the consumer of water if the purposes are other than the purposes which have been previously defined. ‘Then comes the latter branch, which continues: “or at their own instance, afford a supply of water by meter.” It seems to me that the word “shall” is compulsory when it is dealing with the action of the company set in motion by the request of the consumer, but that when it passes to the act of the company upon its own initiative it takes a colour from the words “at their own instance” which give to the word “shall,” not altogether inappropriately, the meaning of “may.” After all the word “shall” is only the future tense and colourless, but it may receive, and it does receive, in ordi- nary language either » compulsory colour or an optional colour from the context, and I do not think there is anything very violent (although it is not altogether an apt way of using it) in giving the optional meaning to it where you find it coupled with the phrase “at their own instance,” just as you say that a person shall, if he chooses, go out for a walk, which means that he shall have the power of doing it. But what we have to consider really is the first branch of this section, what is the limit of compulsion within which the com- pany is obliged to act if there is a request by a consumer of water? First of all it seems to me that he must be a consumer of water. ‘That is what the section says, and I think it would be doing strange violence to its language if we were to give it the meaning attributed to it by the learned Judge below. A “con- sumer of water” does not denote a person who desires to consume water but is not consuming it, any more than “customer of a firm” includes a person who at some future time intends to buy from it. “Consumer” must, to fulfil the ordinary conditions of the English language, be a person who is actually consuming or who is entitled to consume under some agreement made with the company, or some previous right given him by the Act of 69. GA. 1888 ~~ Cooke ® New River PANY. Bowen, Lat.70 OA. 1888 Cooke e. New River ‘Company. Bowen, LJ. CHANCERY DIVISION. (VOL. XXXVIII. Parliament itself, for I do not think it necessary that he should be actually consuming the water if he is in such a position that the company cannot refuse to give it to him and if he wishes to insist upon his right. But then there is another limit upon the compulsion which is imposed on the company,—the request of the consumer is only to be imperative or obligatory if the purposes are other than the purposes for or in respect of which the rates are thereinbefore provided. Now rates are thereinbefore provided for domestic purposes, and for certain other purposes which it is not necessary for the present purpose to enumerate, because the consideration of them does not arise. Speaking broadly, the purposes for which the rates have been already fixed are domestic purposes. Then, coming back to the language of sect. 41, a consumer of water, if he wants to insist on supply by meter, can only do so for purposes other than those for which rates have been previously fixed. ‘The result is that the company, speaking broadly, subject. to the exceptions created by special sections in the Act, are not bound to supply water for general trade purposes except to their own consumers. Then come the words “or at their own instance.” One can easily conceive cases in which the company would be dissatisfied with the use which was being made of the water sup- plied for domestic purposes, or dissatisfied with constant contro- versies about it, and might choose to say “ We elect to supply you altogether on the meter system although you are a consumer and have a right to water for domestic purposes.” In the second branch of the sentence there is no limit as to the purposes for which the meter supply is to be used when the company put themselves in motion. When the consumer of water asks for a supply by meter he can only demand it for purposes outside domestic use, but the company may elect if they choose, for all purposes whatsoever, to impose a meter supply. That is no doubt in order to prevent disputes between customers and themselves. If that is the true view of this section, the construction of the previous sections becomes unnecessary for the purposes of the present case, and, like my Brothers who sit with me, I am ex- tremely reluctant to decide anything except what is necessaryVOL. XXXVIII] CHANCERY DIVISION. for the special case, because I believe by long experience that judgments come with far more weight and gravity when they come upon points which the Judges are bound to decide, and I believe that obiter dicta, like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the Judges who have uttered them, and are a great source of embarrassment in future cases. Therefore I abstain from putting 4 construction on more than it is necessary to do for this par- ticular case. Are the Plaintiffs consumers of water within the definition I have given? Are they persons who are entitled to consume already before you get to sect. 41? They occupy a house which is six storeys high, without any internal partitions, nobody sleeps in the house, nobody takes his meals in it, there are about twenty clerks and twenty porters employed there, and water is used for water-closets and lavatories, and for washing the house. I neglect the hydraulic lift. I by no means say that such persons are not occupying a house or part of a house which gives them a right under sect. 35 to water for domestic purposes. But it is not necessary to decide this point, for on sect. 41, as it seems to me, the Plaintiffs are in this dilemma. Are they already consumers of water within the meaning of the section for domestic purposes or not? If they are, what does the first branch of sect. 41 give them? Only a right to demand a meter supply for purposes other than domestic purposes, and this action is to demand it for domestic purposes, Therefore the section does not help them. If they are not, if this is not a dwelling-house, and they had no right to water under the section which prescribes the rates, they cannot demand water at all. It seems to me, therefore, that the argument of the Respondents must fail. Solicitors for Plaintiffs: Hollingsworth, Tyerman, & Andrewes. Solicitors for Defendants: Thompson & Debenhams. HO. J. val OA. 1888 Coors ® New Rives, Company. Bowes Ld.