Generally. nature and object of the corporation, the corporate body is expressly and impliedly prohibited from making; such a contract is said to be ultrà vires." On this point see also the London Dock Company v. Sinnott. (1) The requirements of the statute that estimates shall be made before commencing works, and also as to previous reports, are directory only as respects contracts entered into by the Board with third parties, and are merely for the guidance of the Board; (2) and therefore a contract under seal, entered into between the Board and a third party for the execution of certain works, was held to be valid, although no estimate or report of the surveyor had been previously obtained. The nonobservance of the proviso might however affect the right of the Board to levy a rate for the purposes of the contract. It was also held in the same case that an action lay upon the contract itself for non-payment, and that the plaintiff was not driven to seek his remedy by mandamus or bill in equity, or by any such collateral proceeding. The notice required by sect. 139 to be given before an action can be brought against the Local Board of Health does not apply to a contract for the execution of works. (3) As regards personal liability of members of Local Boards of Health and their officers, see sect. 140 of the Public Health Act. 1848. Before contracting for the execution of any works, the Local Board are required to obtain from their surveyor an estimate of the expense of executing the work, as well as of the expense of keeping it in repair; but this does not apply to a contract for work done to streets which are not highways under 11 & 12 Vict. c. 63, s. 69 (ante, p. 168), and therefore the Local Board may enforce payment of the expenses from the owners of such streets, notwithstanding the absence of the estimate and report of their surveyor. The estimate and report must be obtained where, under the provisions of the Act, the Local Board are required to execute the particular work, and afterwards keep it in repair, and are not necessary if the work, when complete, would not be repaired and maintained under the Act or out of the rates. (4) (1) 8 E. & B. 347; 4 Jur. (N. S.) 70. (2) Nowell v. Worcester, 9 Ex. Rep. 457; 23 L. J. Ex. 139. (3) Davis v. Swansea, 8 Exch. Rep. 808. (4) Cunningham v. Wolverhamp ton, 7 E. & B. 107; 26 L. J. M. C. 33. H 453 CHAPTER V. COMPENSATION FOR DAMAGE CAUSED BY LOCAL BOARDS. Full compensation shall be made, out of the general or For what special district rates, to all persons sustaining any damage by damage. reason of the exercise of any of the powers of the Public 11 & 12 Vict. c. 63, s. 144. Health Act; and in case of dispute the amount is to be settled by arbitration; or if the compensation claimed do not exceed the sum of £20, it may be ascertained by and recovered before justices in a summary manner. The 144th section of the Public Health Act, 1848, and the 69th section of the Lands Clauses Act, 8 Vict. c. 18, refer to the same injuries, and must be construed together. (1) The word. "damage" therefore does not include every inconvenience, but only such as would give a right of action had there been no Act of Parliament. The obstruction of a public right has been held not to be within the latter enactment. (2) Mr. Mandamus will lie to assess compensation for an injury inflicted upon an inhabitant, by reason of the act of Commissioners in paving the streets and so altering their level. Justice Hannen delivered judgment, to the effect that the claimant was entitled to compensation for an injury inflicted on him in the execution of works deemed to be for the benefit of his fellow-inhabitants. The case came within secs. 69 & 144 of the 11th and 12th Victoria, c. 63, the Public Health Act, 1848. (3) The right to compensation will not arise until the damage has been sustained, for the duty to pay does not arise until after the damage has been ascertained and settled according to the provisions of the Act. (4) In a case where a Local Board of Health did not deny that they had made a certain sewer, and were liable to make compensation if there were any damage, which they denied, it was held that this was a dispute as to the amount of damage and not as to the liability of the Local Board to make any compensation and therefore that it was the subject of a reference under the Act; and that the arbi (1) Hall v. Bristol, 15 L. T. (N. S.) 572; 36 L. J. C. P. 110; L. R. 2 C. P. 322. (2) Reg. v. Metropolitan Board of Works, 10 B. & S. 391. (3) In the matter of the Wallasey Local Board of Health, 11th May, 1869. (4) Peters v. Clarson, 7 M. & G. 548. For what damage. trators, if of opinion that there was no damage, might in such case award that the amount of compensation was nothing. (1) So where the declaration charged that the Local Board of Health of Southampton so constructed a sewer that quantities of filth and sewage matter were poured in, upon, and about the approaches and works connected with the bridge of a floating-bridge company, it was held, upon demurrer, that the declaration charged a wrong not within section 144 of the Public Health Act, 1848, and that therefore an action might be maintained against the Local Board of Health. Per Lord Campbell, C.J., the Local Board of Health are a very peculiar body, and are entirely the creature of an Act of Parliament, having extraordinary powers conferred on them, and being subjected to extraordinary liabilities; and it seems to me that the cases of the Feoffees of Heriot's Hospital (2) and Duncan v. Findlater (3) apply to a case of this sort. Looking to the Local Board of Health created by the 11 & 12 Vict. c. 63, it is supposed to be liable to actions for a wrong which they may commit. The declaration clearly charges a wrong within section 144; the clause giving compensation is not a remedy which the legislature have applied the remedy is by action. The question is, shall the action be brought against the Board of Health, or against the individuals from whose default the damage is supposed to have arisen? Looking to section 139, I think, if there is any case in which the Local Board of Health may be liable, that section meets such a case as this. There is a wrong, and if the defendants have any answer it must come by way of plea. Section 139 clearly supposes that there may be an action for a wrong, because it not only provides that there shall be notice of action, but also that the party to whom notice is given may tender amends, and pay money into Court. (4) In the Mersey Docks and Harbour Board Trustees v. Gibbs and others, in error in the House of Lords, (5) in which it was held that the trustees were liable for damage occasioned by the negligence of persons doing the business of the trust, Lord Westbury, however, took occasion to express his doubt whether Lord Cottenham had not, in the case of Duncan v. Findlater, carried too far the doctrine of non-liability of trust property for the acts of trustees constituting a public body. In the case referred to the House of Lords decided that the principle on which a private person, or a company, is liable for damages occasioned by the neglect of servants, applies to a corporation which has been entrusted by statute to perform (1) Brady v. Southampton, 4 E. and Itchin Floating Bridge Company v. Southampton, 4 Jur. (N. S.) 1299. (5) 14 L. T. (N. s.) 677; 12 Jur. (N. S.) 571; 35 L. J. Exch. 225; L. R. 1 H. L. 93. certain works, and to receive tolls for the use of those works, For what although those tolls, unlike the tolls received by the private damage. person, or the company, are not applicable to the use of the individual corporators or to that of the corporation, but are devoted to the maintenance of the works, and, in case of any surplus existing, the tolls themselves are to be proportionably diminished. Parnaby v. The Lancaster Canal Company, (1) which was the case of an ordinary company, approved of, and the principle of liability for negligence there established applied to a corporate body entrusted by statute with the performance of a public duty and receiving therefrom no profits or emoluments for itself. If knowledge of the existence of a cause of mischief makes persons responsible for the injury it occasions, they will be equally responsible when, by their culpable negligence, its existence is not known to them. Per Lord Westbury-Trustees may render the property of their beneficiaries liable to third persons for acts done in the exercise of the trust. The Middle Level Drainage Commissioners in Norfolk were empowered and directed by statute to make a cut, and make and maintain at or near its opening a sluice, to exclude the tidal waters. They were trustees for a public purpose, and acting without reward. The sluice was properly made, but owing to the absence of due care and skill in the persons employed by them to maintain it, the sluice burst, whereby the tidal waters came in, and flooded the neighbouring lands. There was no proof that the Commissioners had negligently or improperly employed unskilful or incompetent agents; and per Cockburn, C.J. and Mellor, J., dissentiente Blackburn, J., it was held that the Commissioners were not liable to an action at the suit of the owners of the neighbouring lands. (2) But on appeal to the Court of Exchequer Chamber, that Court, on the authority of the Mersey Docks Case, reversed the decision, for the reasons given in the judgment of Blackburn, J., in the Court below, namely, that as there was an absolute duty imposed on the Commissioners of maintaining the sluice, they were liable to the damage caused by the negligent performance of that duty by their servants. (3) Under sects. 69, 70, of the Metropolitan Sewers Act (11 & 12 Vict. c. 112), it was held that power was given to resort to arbitration only in those cases where the mere amount of compensation was disputed; not in cases where the liability to make any compensation at all was denied. (4) In another case the Court granted a mandamus commanding a Local Board of Health to make compensation for damage sustained (1) 11 A. & E. 223. (2) Coe v. Wise, 5 B. & S. 440; 10 L. T. (N. s.) 666. (3) Coe v. Wise, 14 L. T. (N. S.) 891; L. R. I Q. B. 711; 7 B. & S. (4) Reg. v. Metropolitan Commis- For what damage. by reason of their sinking shafts near to and making sewers under certain houses within their district. (1) And the return to the writ showing that the prosecutor had not taken any steps towards having the amount of damage determined or ascertained in the manner provided for by the Act, nor given nor delivered to the defendants any notice in writing or otherwise of the claim for compensation, or of the cause or amount thereof, nor informed them whether it exceeded the sum of £20, nor appointed an arbitrator, nor given notice of an intention on his part to do so; it was held to be a good return, inasmuch as it showed that the prosecutor had not specified the amount claimed, or whether it was under £20, whereby the defendants were unable to know whether proceedings were to be taken before an arbitrator, or before justices, as provided by the Act. (2) A rule nisi was afterwards obtained to enter the verdict for the defendants on the trial of the issues raised upon the mandamus, but was discharged by the Court, (3) as the matters alleged in the return to the writ were no answer to the writ, it not being distinctly stated that the amount of compensation only was in dispute. (4) Under the 144th section the mandamus was good, and the prosecutor was held entitled to a verdict on the whole return to a peremptory mandamus; for that as it did not appear on the return that there was any dispute as to the amount, the rest of the alle gations in the return (beyond the traverse of the denial of liability which had been found for the prosecutor) were immaterial. (5) Lord Campbell, C.J., in Reg. v. Halifax Local Board of Health, (6) said, that a public body having public duties to perform and public funds to administer ought to ascertain its liabilities cheaply, and to discharge them properly. In the above case the Corporation of Halifax as a Local Board of Health constructed a temporary drain, whereby they severed the connection of an existing drain and a private drain, whereby damage was occasioned to the premises of the owner of the private drain. Compensation for the damage not having been made, a rule nisi was applied for calling upon the Local Board of Health to show cause why a writ of mandamus should not issue, commanding them to appoint an arbitrator under the Public Health Act, 1848, and to make compensation. The first part of sect. 144 says that "full compensation shall be made out of the general (or special) district rates, to be levied under this Act, to all persons sustaining any damage by reason of the exercise of any of the powers of this Act;" and the (1) Reg. v. Burslem, 22 J. P. 400. Q. B. 345; 5 Jur. (N. S.) 1394- |