AVELINE SCOTT DITCHAM Vs. JAMES J MILLER

JUDGEMENT

(1.) This is an appeal from an order of the Full Bench of the Supreme Court of Newfoundland and it raises the broad question whether within the meaning of the St. John's Municipal Acts, 1921 and 1926, the respondent in relation to certain hereditaments in that city demised by a lease of 16 May 1848, had on the expiration of the term on 1 May 1929, become the "assign" of the original lessees so as to be entitled in terms of that a statutes to claim compensation for unexhausted improvements from the appellant, the reversioner and freeholder.

(2.) The hereditaments comprised in the lease lie admittedly within the local area of the statute of 1921 which by S. 94, provides that every "building lease" theretofore made shall, irrespective of its actual provisions be read as subject to a condition that "the lessee or his assigns" shall amongst other detailed privileges be entitled at the expiration of the lease: "to compensation for the unexhausted value of the improvements made by him or his assigns upon the said land during the term of the lease including in the case of business premises any goodwill which may have been created by him or his assigns during the currency of the lease."

(3.) The supplementary statute of 1926 requires that the amount to be paid, inter alia, in respect of such compensation shall in default of agreement be determined by three arbitrators, one appointed by each of the contestant parties, and the third by the Supreme Court or a Judge thereof. The order of the Supreme Court dated 5 March 1930, and now appealed from purported to appoint at the instance of the respondent claiming to be the "assign" of the lease, the third of these arbitrators. It has throughout been the appellant's contention that as between herself and the respondent there was nothing to arbitrate about. She has based that contention on several grounds, one of which has always been and it is the only ground she now puts forward - that the respondent was not a person entitled under the statute to claim compensation for that he never was within its meaning an assign of the lessees. The appellant accordingly, when applied to by the respondent refused to make an appointment of a second arbitrator. And just as she then refused to assist in constituting the arbitration tribunal so now she objects to the appointment to that end made by the Supreme Court. The respondent she says was no "assign" in the necessary sense and the Supreme Court had no power or authority at his instance to make any such appointment as it did by its order now challenged. And she is now content to stake everything upon her ability to obtain a negative answer to the question: "Was the respondent in relation to this lease an "assign" within the meaning of the statute?"