such order (a) with reference to the execution of the works, and the persons by whom the same shall be executed, and by whom and in what proportions the costs of such works shall be paid, and also as to the amount thereof, and the time and mode of payment, as to such justices shall seem reasonable;

And any sums ordered to be paid by any justices in pursuance of this section shall be a charge upon and be payable out of the poor rates of such adjoining parish or place, as if the same were legally incurred in the relief of the poor of such parish or place, and in default of payment may be levied upon the goods and chattels of such overseers by distress and sale thereof (b).

POWERS AS TO SCAVENGING AND CLEANSING.

local boards

cleansing.

XXXII. The fifty-fifth (c) and fifty-sixth sections of the power to Public Health Act, 1848, shall be repealed, excepting so to cleanse or much of the fifty-sixth section as relates to the providing contract for conveniences for the temporary deposit of dust, ashes, and rubbish, and also fit buildings and places for the deposit of sewerage and other mattors collected by the local board; And in lieu thereof be it enacted,

(1.) That local boards may themselves undertake or contract with any person (d) for

(a) This order shall not be vacated, or quashed, or set aside for want of form, nor be removable by certiorari or other process into the superior courts of law. See 11 & 12 Vict. c. 63, s. 137, ante. But it seems to be open to appeal to the quarter sessions, under sect. 135 of that Art, ante.

(b) There is an omission here, inasmuch as it is not stated by whom Distress on the distress is to be levied, nor under what authority. The order of the overseers. justices is preliminary, and provides for the works to be done and the expenses to be incurred. The only way of carrying out the provision in the text is by an application to the justices, alleging the order, its execution, and the default of payment by the overseers. The justices should summon the overseers, hear the case, and having made their adjudication, issue the warrant of distress. This is, doubtless, the course intended. It will be observed that the justices are to determine, among other things, by whom the costs are to be paid, consequently they may order some other fund than the poor rate to be so charged, and in such case it is presumed that this last provision will be held to be inapplicable. (c) See ante.

(d) This word includes a corporation. With reference to the power

The proper cleansing and watering of streets;
The removal of house refuse from premises;
The cleansing of privies, ashpits, and cesspools;
Either for the whole or any part of their district;

And all matters thus collected by the local board or contractor may be sold or otherwise disposed of, and any profits thus made by the local board shall be carried to the district fund account (a):

(2.) If any person, not being the occupier of a house (b) within the district, removes, or obstructs the local board or contractor in removing, any matters hereby authorized to be removed (c) by the local board, he shall

Provisions
of 31 & 32
Vict. c. 115,
B. 5.

hereby conferred upon the local board, see 10 & 11 Vict. c. 34, ss. 8798, which clauses, however, are not incorporated in this Act by sect. 45. There are no duties cast upon the local board in the text so as to render them liable to any action for neglect in scavenging or cleansing.

The statute 31 & 32 Vict. c. 115, s. 5, confers upon the sewer authority within their district "all the powers vested in the local board by the above section, as amended by any subsequent Act, so far as it relates to "(1) The removal of house refuse from premises;

"(2) The cleansing of privies, ashpits, and cesspools;

and the paragraphs numbered (1), (2), and (3), shall be construed in reference to the district of any sewer authority, as if the expression of sewer authority were inserted therein in the place of the expression "Local Board."

"Where the sewer authority and the nuisance authority in such district, are different bodies of men, the jurisdiction of the nuisance authority in such district shall cease in respect of all matters over which the sewer authority acquires powers by this section."

(a) See also the provision in the Nuisance Removal Act, 18 & 19 Vict. c. 121, s. 18; 20 & 21 Vict. c. 31, s. 12, and the Sanitary Act, 29 & 30 Vict. c. 90, s. 53, as to the removal and sale of manure and other matters.

(b) Here is, probably, an inadvertence on the part of the legislature. It was, doubtless, intended to provide for the occupiers of houses, who may deal with the rubbish collected in their own houses, but the language being indefinite the exception in the second paragraph takes effect in respect of any occupier of a house in the district, so that such occupier, though unconnected with the subject matter in any way, can only be convicted in the minor penalty. As to the meaning of the word house, see 11 & 12 Vict. c. 63, s. 2, ante.

(c) See 11 & 12 Vict. c. 63, s. 56, ante, which provided for these matters when collected by the local board, but which clause is now repealed.

for each offence incur a penalty not exceeding five
pounds (d);

And if any person, being the occupier of a house
within the district, removes, or obstructs the local board
or contractor in removing, any such matters (except in
cases where such matters are produced on. his own
premises (e), and are removed for sale, or for his own
use for manure, and are in the meantime kept so as
not to be a nuisance), he shall for each offence incur a
penalty not exceeding forty shillings (f):

(3.) In parts where the local board do not themselves undertake or contract with any person for

The cleansing of footways and pavements adjoining any premises,

The removal of refuse from any premises,

The cleansing of privies, ashpits, and cesspools,

They may make byelaws (g) imposing the duty of such cleansing or removal on the occupier of any such premises: (4.) The local board may make byelaws (g) for the prevention Power to of nuisances arising from snow, filth, dust, ashes, and rubbish within their district (h), or of the keeping

(d) As to the recovery of the penalty, see 11 & 12 Vict. c. 63, s. 129, ante. (e) It is not enough that the matters are produced upon the premises; they must be removed for sale, or for use for manure, and until removal they must be kept so as not to create a nuisance; so that if the matters create a nuisance, which word must here, it is presumed, signify a public nuisance, they may be removed by the local board or the contractor without obstruction. As to what are not refuse claimable by the local board, see Filbey v. Combe, 2 M. & W. 677; Law v. Dodd, 1 Exc. 845; and Lyndon v. Stanbridge, 2 H. & N. 45.

(f) See 11 & 12 Vict. c. 63, s. 129, as to the recovery of the penalty.

(g) See, as to such bye-laws, 11 & 12 Vict. c. 63, s. 115, ante, and the enforcing thereof, sect. 129, ante, and the forms of byelaws circulated by the secretary of state.

(h) See 11 & 12 Vict. c. 63, s. 55, ante, which is hereby extended to snow and animals, and in the Appendix, the provisions in 10 & 11 Vict. c. 89, s. 28, incorporated herewith, and those in the Nuisances Removal Act, 1855, which subject persons to proceedings who cause nuisances by these means.

N

local board to make byelaws as to nuisances.

recovery of

expenses of

removal of offensive accumulations under 11 & 12 Vict. c. 63.

of animals (y) so as to be injurious to the public health:

Provision for (5.) Whenever the local board have removed any noxious or offensive accumulation under the fifty-ninth (z) section of the Public Health Act, 1848, the expenses of removal, so far as the same are not covered by the sale of the said accumulation, shall be recoverable in a summary manner (a) from the occupier, or, where there is no occupier, from the owner of the premises on which such accumulation existed, or from the person causing such accumulation,

Amendment of sect. 54 of

c. 63, for

purposes herein

named.

Or may, by order of the board, be declared to be private improvement expenses (b).

XXXIII. Whenever the surveyor (c), in the course of any 11 & 12 Vict. examination made by him in pursuance of the fifty-fourth section of the Public Health Act, 1848, finds any such drain, watercloset, privy, cesspool, or ashpit, as therein mentioned, to be in bad order and condition, or to require alteration, it shall not be necessary for him to cause the ground to be closed before the necessary works are set about for amending such drain, watercloset, privy, cesspool, or ashpit. Provided that such necessary works are undertaken forthwith (d).

(y) In Everett v. Grapes, 3 L. T. (N. s.) 669, it was held under 5 & 6 Will. 4, c. 76, s. 90, that a byelaw aimed against keeping pigs in a borough generally instead of keeping them so as to be a nuisance, was bad.

(z) See ante.

(a) That is, under 11 & 12 Vict. c. 63, s. 129, ante.

(b) As to which see 11 & 12 Vict. c. 63, s. 90, ante, and see sect. 103, ante, for the recovery thereof.

The 26 & 27 Vict. c. 70, s. 12, which applied only to certain districts in Lancashire and Cheshire, conferred additional powers upon local authorities within those counties during a limited period for the execution of other powers, namely, the acquiring and laying out of recreation grounds, the constructing, enlarging, and improving reservoirs for water supply, and the cleansing and improving of rivers, streams, and brooks. The provisions are numerous and complicated, and as they are of limited and temporary application, they are not printed in this work. (c) See 11 & 12 Vict. c. 63, s. 2, ante.

(d) This seems to signify that if the works be not executed forthwith, i. e., with all convenient speed, the ground must be closed.

72 of 11 & 12

XXXIV. The fifty-third and seventy-second sections of Sects. 53 and the Public Health Act, 1848, shall be repealed; and in lieu Vict. c. 63, thereof be it enacted as follows:

as to new streets and

Every local board may make byelaws (e) with respect to houses, red the following matters; (that is to say,)

pealed, and the pro

visions

named to be

(1.) With respect to the level, width, and construction of herein new streets, and the provisions for the sewerage instead. thereof (f);

(2.) With respect to the structure of walls of new buildings (g) for securing stability and the prevention of fires (h);

(3.) With respect to the sufficiency of the space about buildings to secure a free circulation of air, and with respect to the ventilation of buildings (i);

(4.) With respect to the drainage of buildings (k), to

(e) See as to bye-laws and their confirmation by the secretary of state, 11 & 12 Vict. c. 63, s. 115, ante, and as to the enforcement thereof, sect. 129, ante, and the forms circulated by the secretary of state.

(f) See as to the making of new streets, 10 & 11 Vict. c. 34, ss. 57, 58, 63, and Metropolitan Board of Works v. Oliver, L. R. 3 C. P. 531; Taylor v. Metropolitan Board of Works, L. R. 2 Q. B. 213; Dodd v. Vestry of St. Pancras,34 J. P. 517; St. Giles, Camberwell v. Weller, 17 W. R. 973; L. R. 6 Q. B. 198; and Sawyer v. Vestry of Paddington, 40 L. J. M. C. 8; L. R. 6 Q. B. 164.

(g) See the conclusion of the clause for an explanation of what is to be deemed a new building.

(h) As to the provisions for the prevention of fire, see 10 & 11 Vict. c. 34, ss. 109, 124.

(i) As to the ventilation of buildings, see 10 & 11 Vict. c. 34, ss. 110 -115. A byelaw that wherever any open space had been left belonging to any building, it should never afterwards be built upon without consent of the council, and without having an open space belonging to such building of a specified size and dimensions, if applied to old buildings, was invalid. Tucker, app., Rees, resp., 7 Jur. 629.

Where a byelaw required a certain distance between every building and the opposite property at the rear or side; it was held that it was not satisfied in a case where the space required was left between two points of the opposite property. The byelaw required that at no point should there be less space. Anderton v. Rigby, 13 C. B. (N. s.) 603.

(k) See the provisions in 10 & 11 Vict. c. 34, ss. 35-46. A byelaw that no dwelling-house shall be erected without having at the rear or side a sufficient roadway for the purpose of affording efficient means of access to the privy or ashpit belonging to the house was held to be not legal. Waite, app., Garston Board of Health, resp, 17 L. T. (N. s.) 201; L. R. 3 Q. B. 5; 37 L. J. M. C. 19.