• Form of

last past, by great force of arms and unlawfully enter upon the said
and did by great force of arms and unlawfully break down, remove, and notice of
destroy the railings, hedges, gates, stiles, and other fences bounding the action.
said
and did thereupon with horses, carts, barrows, spades, and
other implements, cart, carry and lay down upon the said
quantity of gravel, stones, rubbish, and other matters and things, and did
spread the same over the said
to the great injury and damage of

me the said

Further, take notice that

of

in the county of

is the name of my attorney in the cause of action aforesaid. Dated

a large

Limitation

Upon the trial of any action so brought, the plaintiff is not Evidence. permitted to go into evidence of any cause of action which is 11 & 12 Vict. not stated in the notice; and unless such notice be proved the 63, s. 139. jury shall find for the defendant; and every action must be of actions. brought or commenced within six months next after the accrual Ib. of the cause of action, and not afterwards, and must be laid and tried in the county or place where the cause of action occurred.

This latter must be read as subject to the power of the Court Venue. to change the venue, for the common law power of the Court or 11 & 12 Vict. c. 63, s. 139. a judge to change the venue in an action is not taken away. The meaning of the provision that the action shall be laid and tried in the county or place where the cause of action occurred is, that the plaintiff in the usual course of proceeding shall not be at liberty to lay the venue elsewhere than where the cause of action arose, unless the Court shall otherwise order. (1) In a later case it was held that the venue in action against Local Boards of Health is local and not transitory. (2)

Ib.

The defendant is at liberty to plead the general issue, and to General issue. give the Public Health and Local Government Acts and all Ib. special matter in evidence thereunder; but any person to whom notice of action is given may tender amends to the plaintiff, his attorney or agent, at any time within one month after service of the notice, and in case it be not accepted may plead such tender in bar, and (by leave of the Court) with the general issue or Tender of other plea or pleas. If upon issue joined upon any plea pleaded amends, etc. to the whole action the jury find generally for the defendant, or if the plaintiff be nonsuited or discontinue, or if judgment be given for the defendant, then the defendant is entitled to full costs, and to have judgment accordingly; in case, however, amends be not tendered, or in case the amends tendered be Money may be insufficient, the defendant may, by leave of the Court, at any paid into time before trial, pay into Court, under plea, such sum of money Ib. as he may think proper, and (by the like leave) may plead the general issue or other plea or pleas.

Court.

Where a Local Board enter into a contract ultrà vires, and Individual therefore cannot pay the contractor out of the rates which they liability of

(1) Itchin Bridge Company v. Southampton, 8 E. & B. 801; 27 L. J.

Q. B. 128; 3 Jur. (N. S.) 1261.

(2) Pryor v. West Ham, 15 L. T. (N. S.) 250.

members of Local Board.

Notice of action.

5 & 6 Vict.

c. 97, s. 4.

Ib. s. 5.

Liability for acts of

contractor.

are authorized to levy, individual members of the Board are not personally liable for the debt. (1)

It is enacted by the 5 & 6 Vict. c. 97, s. 4, that in all cases where notice of action is required, such notice shall be given one calendar month at least before any action shall be commenced.

By sect. 5 it is also enacted that the period within which any action may be brought for anything done under the authority or in pursuance of any public, local and personal, or local and personal Acts shall be two years, and in case of continuing damage, then within one year after such damage shall have ceased. So much of any clause in any such Act, whereby any party or parties are entitled or permitted to plead the general issue only, and to give any special matter in evidence without specially pleading the same, was repealed by 5 & 6 Vict. C. 97, S. 3.

In order to entitle a person to notice of action for a thing done "in pursuance" or "in the execution" of an Act of Parliament, it is not necessary that he should at the time of doing the act be cognizant of the existence of the statute giving him such protection, or that he should be acting strictly in the execution of it. (2).

With regard to proceedings against justices for acts done by them in the execution of their office, see the third edition of Glen's Jervis's Act.

The notice of action above specified has reference to a tort or quasi tort committed in the bona fide exercise of the powers conferred by the Act; and it has been held not to be applicable to a contract for the execution of works. (3) The contract must, however, be in respect of the work to be done, for though a person employing a contractor to do a thing which is lawful in itself, is not responsible for the negligence or miscon duct of the contractor or his servants in executing the matter of the contract, yet if the thing itself is wrongful, the employer is responsible for the wrong so done by the contractor or his servants, and is liable to third persons who sustain damage from the doing of that wrong. Therefore if a person employ another to break up a street or to do a certain work, having no authority to cause the street to be broken up, or the work to be done, and damage thereby accrue, the employer is liable, and is not exempted from his liability merely because there was a contract between him and the person immediately causing the work to be done. (4)

Further, a municipal corporation authorized by statute to carry on gas-works to light the town, and employing workmen to lay down gas-pipes in the borough, are bound to make com

(1) Bailey v. Cuckson, 32 L. T.

124.

(2) Read v. Coker, 13 C. B. 850.
(3) Davies v. Swansea, 8 Exch.

Rep. 808; 22 L. J. Exch. 267.

(4) Ellis v. Sheffield Gas Consu mers' Company, 2 E. & B. 767.

pensation for an injury arising from the negligence of their Liability for servants employed in laying down the gas-pipes. (1)

It has also been held that a person who had contracted with a Local Board of Health for the digging of wells for the better supply of water, the work to be done to the satisfaction of the Local Board or their surveyor, and the digging to be entirely under the direction of their surveyor, was a person "acting under the direction of the Local Board," within the meaning of the above provision; and in an action for an injury caused by the works being left without sufficient light, that the action was in respect of something "done or intended to be done, under the provisions of the Act," and therefore that the defendant was entitled to notice of action under sect. 139 of the Public Health Act, 1848. (2)

So where, in reconstructing a sewer, the contractor who was employed by the Metropolitan Board of Works, was obliged to dam up a branch sewer in order to carry the water by a wooden trough along a higher level, and the stream being swollen by heavy rains the drain from the plaintiff's house was filled and his premises were flooded, it was held in an action against the contractor for negligence that he was entitled to notice of action under 25 & 26 Vict. c. 102, s. 106. (3)

Under the 18 & 19 Vict. c. 120, s. 88, a district Board in the metropolis may provide urinals, etc., in situations where they may deem such accommodation to be required; and sect. 106 requires a notice of action to be given for anything done or intended to be done under the powers of the Board. Plaintiff and defendant were occupiers of adjoining houses, which were separated by a covered passage. The house of the defendant was a public-house, and the public were accustomed to commit nuisances against the wall of the plaintiff's house. The district Board, therefore, directed their inspector of nuisances to cause a urinal to be put up against the plaintiff's wall, and the inspector gave authority to the defendant to erect it, which he accordingly did, the district Board paying a portion of the expense. The plaintiff thereupon brought an action against the defendant, and at the trial, in consequence of an objection taken that no notice of action had been given, the judge directed a verdict to be entered for the defendant. A rule nisi having been obtained to set aside the verdict and for a new trial on the ground of misdirection, it was held that the defendant was entitled to notice of action under the Act, and that the verdict was therefore right. (4)

The justices before whom any person is convicted of any offence against the provisions of the Acts may cause the con

(1) Scott v. Manchester 1 H. & N. 59. Affirmed in Exch. Chamb. 2 H. & N. 204; 26 L. J. Exch. 406. (2) Newton v. Ellis, 5 E. & B. 115; 24 L. J. Q. B. 337; I Jur.

(N. s.) 850.

(3) Poulsum v. Thirst, 16 L. T. (N. S.) 324.

(4) Chambers v. Reid, 13 L. T. (N. S.) 703.

acts of contractor.

Form of conviction.

11 & 12 Vict.

c. 63, s. 130.

viction to be drawn up according to the form and directions in the schedule (E) or to the like effect, and any conviction so drawn up is to be valid and effectual to all intents and purposes.

The following is the form of conviction referred to :—

County of

Be it remembered, that on the

in the year of our Lord

day of

A.B. is

[or Borough, etc.]
to wit.
convicted before me [or us] one [or two] of Her
Majesty's justices of the peace in and for the county [or borough] of
[here describe the offence generally, and the time and place when and where
committed in the words of this Act, or as near thereunto as may be contrary
to the Public Health Act, 1848; and I [or we] do adjudge that the said
A. B. hath forfeited for his said offence the sum of [amount of penalty ad
judged, and that he do pay to C. D. the further sum of

for his costs in this behalf.

as and

481

CHAPTER VIII.

BYE-LAWS.

force till

C.

ALL bye-laws made by Local Boards are to be in writing and Bye-laws of under their seal, and the signature of any five or more of their Local Board number, or (in the case of a corporate district) under the com- not to be in mon seal. By such bye-laws penalties may be imposed upon confirmed by offenders against the Act not exceeding £5 for each offence, Local Governand in the case of a continuing offence a further penalty not ment Board. exceeding 40s. for each day after written notice of the offence 11 & 12 Vict. from the Local Board. The bye-laws so made may be altered c. 63, s. 115. or repealed by any subsequent bye-laws made in like manner; but all bye-laws imposing any penalty shall be so framed as to allow of the recovery of any sum less than the full amount of the penalty; and they must not be repugnant to the laws of England or to the provisions of the Act, and are not to be of any force or effect unless they are confirmed by the Local Government Board, who are required to allow or disallow the same as they may think proper. No bye-laws shall be so confirmed unless notice of intention to apply for confirmation of the same shall have been given in one or more of the public newspapers usually circulated within the district to which they relate one month at least before the making of such application. For one month at least before any such application, a copy of the proposed bye-laws shall be kept at the office of the Local Board, and be open during office hours thereat, for the inspection of the ratepayers of the district. The clerk shall furnish every such ratepayer who shall apply for the same with a copy thereof, or of any part thereof, on payment of sixpence for every one hundred words contained in such copy.

After confirmation the bye-laws are to be printed and hung Bye-laws to up in the office of the Local Board; and copies of them are to be printed. be delivered upon application to any ratepayer of the district Ib. s. 116. to which they relate.

Local Boards have no general power to make bye-laws for Removing carrying out the purposes of the Act, but only such as are snow, etc. authorized by the Act; therefore a bye-law that "all occupiers of any premises within the district shall properly clean and remove all snow, or other obstructions, from the footpath and channel opposite their respective premises, before nine of the clock in the forenoon of each day," is not a bye-law warranted by the statute. The Board can make bye-laws to carry out