A.D. 1875.

Name of local authority need not be proved.

Demands below

covered in

county courts.

of the Act. If a right of suit exists against the Board, the Act gives an easy mode of proceeding to enforce it, but not a right of action where there is not liability independent of the Act. When a judgment is recovered against the clerk as a public officer of the Board, it is not liable to the usual incidents of a judgment, and enforceable by writ of execution, but only by mandamus or by bill in equity to compel the parties to satisfy the judgment when it appears that they have the means of doing so, that is, by having recourse to the rates to be levied under the Act. Moreover, when a former Local Board of a non-corporate district has incurred a liability, an action may be maintained against the Local Board for the time being in the name of their clerk. Kendall v. King, 25 L. J. C. P. 132; Hall v. Taylor, 27 L. J. Q. B. 311.

Goods, &c., of Board liable in execution.— An action of ejectment having been brought on a writ of elegit. against the public officer of the Local Board of Tranmere, the plaintiffs claiming under such writ on a judgment obtained by them against the defendant in a former action, and a verdict being entered for the plaintiff with leave to move to enter it for the defendant on the grounds, first, that property held by a Local Board of Health for purposes of the Public Health Act cannot be taken under an elegit; and, secondly, that the writ directed the delivery to the plaintiffs of the lands, &c., of the defendant as clerk to the Local Board, whilst the lands in question were vested in the Local Board and not in the defendant as their clerk, the Court of Common Pleas held that lands held for public purposes were still liable to be taken under an elegit, and that a judg ment against the defendant as clerk was in truth a judgment against the Local Board of Health. The rule to set aside the verdict was therefore discharged. Worral Waterworks Company v. Lloyd, L. R. 1 C. P. 719. See also Saunders v. Slack, 11 L. T. (N. S.) 484, as to levying execution against goods of public companies by a judgment creditor.

260. In any proceeding instituted by or against a local authority under this Act it shall not be necessary for the plaintiff to prove the corporate name of the local authority or the constitution or limits of their district: Provided that this section shall not abridge or prejudice the right of any defendant to take or avail himself of any objection which he might have taken or availed himself of if this Act had not been passed.

See the Introduction, ante, pp. lxiv, lxxxii.

261. Proceedings for the recovery of demands below 507. may be re- fifty pounds, which local authorities are empowered to recover in a summary manner, may, at the option of the L.G. Am., s. 24. local authority, be taken in the county court as if such demands were debts within the cognizance of such courts. The limit was formerly 201., see ante, pp. lxiv, lxxxii.

262. No rate order conviction or thing made or done or relating to the execution of this Act shall be vacated quashed or set aside for want of form, or (unless otherwise expressly provided by this Act) be removed or removable by certiorari or any other writ or process whatsoever into any of the superior courts: Provided that nothing in this section shall prevent the removal of any case stated for the opinion of a superior Court or of any rate order conviction or thing to which such special case relates.

Certiorari.-But, nevertheless, the Court quashed a conviction on certiorari in a case where a justice had acted without jurisdiction in convicting under an illegal bye-law made by a Local Board of Health. Reg. v. Wood. 5 E. & B. 49. S. C. nom. Reg. v. Rose, 24 L. J. M. C. 130; 1 Jur. (N. s.) 802. See also Reg. v. Gosse, 30 L. J. M. C. 41; 6 Jur. (N. s.) 1369. Though the writ of certiorari be taken away by statute, the Court of Queen's Bench may grant the writ under certain circumstances, as in Reg. v. Dickenson, 7 El. & Bl. 831; 26 L. J. M. C. 204; 3 Jur. (N. s.) 1076. By sect. 90 of the 5 & 6 Wm. IV. c. 76 (the Municipal Corporations Act), Councils of corporate Boroughs are empowered to make bye-laws; and by sect. 91, offences against bye-laws so made may be punished by summary conviction. By sect. 132, the writ of certiorari is taken away. In the above case the Recorder of Newcastle-upon-Tyne, upon an appeal against a summary conviction for an offence against a bye-law, with the consent of the parties, stated a case, and referred, as the only question for the Court to determine, the question whether the facts amounted to an offence within the bye-law; and the Court having granted a writ of certiorari to bring up the case, it was held that, by virtue of the consent of the parties, the Court might receive the case, and determine the question, although the writ of certiorari was taken away by the Act. But in Reg. v. Gloucester, 33 L. T. 145, the Court held that the 21 & 22 Vict. c. 98, s. 60, did not apply to the removal by certiorari of a resolution and order for payment of a sum of money which was made by the Local Board, acting under the Public Health Act, 1848.

With regard to the last clause of the section, see ante, pp. lxiv, lxxxii, and as to special cases for the opinion of a superior court on points of law, see post, p. 256.

A.D. 1875.

263. Any person who on any examination on oath, False evidence under any of the provisions of this Act, wilfully and cor- punishable as ruptly gives false evidence shall be liable to the penalties P.H., S. 147. inflicted on persons guilty of wilful and corrupt perjury.

perjury.

264. A writ or process shall not be sued out against or Notice of action served on any local authority, or any member thereof, or against local authority, &c. any officer of a local authority, or person acting in his aid, P.H., s. 139. for anything done or intended to be done or omitted to be done under the provisions of this Act, until the expiration of one month after notice in writing has been served on such local authority member officer or person, clearly stating the cause of action, and the name and place of abode of the intended plaintiff, and of his attorney or agent in the cause; and on the trial of any such action the plaintiff shall not be permitted to go into evidence of any cause of action which is not stated in the notice so served; and unless such notice is proved the jury shall find for the defendant.

Every such action shall be commenced within six months next after the accruing of the cause of action, and not afterwards, and shall be tried in the county or place. where the cause of action occurred, and not elsewhere.

Any person to whom any such notice of action is given as aforesaid may tender amends to the plaintiff his attorney or agent, at any time within one month after service of such notice, and, in case the same be not accepted, may

A.D. 1875. plead such tender in bar; and in case amends have not been tendered as aforesaid, or in case the amends tendered are insufficient, the defendant may, by leave of the court, at any time before trial, pay into court under plea such sum of money as he may think proper; and if upon issue joined, or upon any plea pleaded for the whole action, the jury find generally for the defendant, or if the plaintiff be nonsuited or judgment be given for the defendant, then the defendant shall be entitled to full costs of suit, and have judgment accordingly.

Venue. The latter part of the above section must be read as subject to the power of the Court to change the venue, for the common law power of the Court or 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. Itchin Bridge Company v. Southampton, 8 E. & B. 801; 27 L. J. Q. B. 128; 3 Jur. (N. s.) 1261. In a later case it was held that the venue in action against Local Boards of Health is local and not transitory. Pryor v. West Ham, 15 L. T. (N. s) 250.

But now by Order xxxvi., Rule 1, in the first schedule of the Supreme Court of Judicature Act, 1875 (38 & 39 Vict. c. 77), there shall be no local venue for the trial of any action, but when the plaintiff proposes to have the action tried elsewhere than in Middlesex, he shall in his statement of claim name the county or place in which he proposes that the action shall be tried, and the action shall, unless a judge otherwise orders, be tried in the county or place so named. Where no place of trial is named in the statement of claim, the place of trial shall, unless a judge otherwise orders, be the county of Middlesex. Any order of a judge, as to such place of trial, may be discharged or varied by a divisional court of the High Court.

Notice of action.-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 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.

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. Read v. Coker, 13 C. B. 850.

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 Acts.

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. Davies v. Swansea, 8 Exch. Rep. 808; 22 L. J. Exch. 267. 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 misconduct 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. Ellis v. Sheffield Gas Consumers' Company, 2 E. & B. 767.

Further, a municipal corporation authorized by statute to carry on gasworks to light the town, and employing workmen to lay down gas-pipes in the borough, are bound to make compensation for any injury arising from the negligence of their servants employed in laying down gas-pipes. Scott v. Manchester, 1 H. & N. 59. Affirmed in Exch. Chamb. 2 H. & N. 204; 26 L. J. Exch. 406.

It has also been held that a person who had contracted with a Local Board 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 provisión; 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. Newton v. Ellis, 5 E. & B. 115; 24 L. J. Q. B. 337; 1 Jur. (N. s.) 850.

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. 105, which requires a notice of action to be given for anything done or intended to be done under the powers of the Board. Poulsum v. Thirst, 16 L. T. (N. s.) 324; L. R. 2 C. P. 449; 36 L. J. C. P. 225.

But where proceedings in Chancery were instituted to restrain the pollution of a water-course, it was held that the notice under 25 & 26 Vict. c. 102, s. 106, applied only to actions at law and was not required. Attorney-General v. Hackney Local Board, 33 L. T. (N. s.) 244.

Under the 18 & 19 Vict. c. 120, s. 88, a district Board in the metropolis may provide urinals, in situations where they may deem such accommodation to be required. 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 s. 106 of the Act, and that the verdict was therefore right. Chambers v. Reid, 13 L. T. (N. s.) 703.

A letter of the plaintiff's attorney claiming compensation, and stating that he is instructed to commence proceedings, if no satisfactory arrangement can be come to, would not be a sufficient notice of action. Mason v. Birkenhead, 29 L. J. Exch. 407; 6 H. & N. 72.

As regards a notice of action in respect of a claim for compensation for injuries affecting premises by the construction of works according to the powers of the Act, see Delany v. Metropolitan Board of Works, 37 L. J. C. P. 59; L. R. 3 C. P. 111; 17 L. T. (N. s.) 262, which was upon the construction of the Metropolitan Act, 25 & 26 Viet c. 102, s. 106.

It is settled (Davis v. Curling, 8 Q. B. 286; 15 L. J. Q. B. 56; Poulsum

A. D. 1875.

A.D. 1875.

Protection of

local authority

and their officers from

personal liabi

lity.
P.H., s. 140

N.R. 1855, s.
42.

v. Thirst, supra), that an omission to do what ought to be done in order to the complete performance of a duty imposed upon a public body under an Act of Parliament, or continuing to leave any duty unperformed, amounts to an act "done or intended to be done" within the meaning of the clauses requiring notice of action for the protection of public bodies under Acts of Parliament imposing public duties. Wilson v. Halifax, 17 L. T. (N. 8.) 660; 37 L. J. Exch. 44; L. R. 3 Exch. 114. So where an improvement Act was to be executed by a Local Board under 11 & 12 Vict. c. 63, and they were guilty of negligence, they were held entitled to notice of action under sect. 139 of that Act, which was similar to the above section. Jolliffe v. Wallasay, 38 J. P. 40.

Liability of individual members.-Where a Local Board enter into a contract ultra vires, and therefore cannot pay the contractor out of the rates which they are authorized to levy, individual members of the Board are not personally liable for the debt. Bailey v. Cuckson, 32 L. T. 124.

265. No matter or thing done, and no contract entered into by any local authority or joint board or port sanitary authority, and no matter or thing done by any member of any such authority or by any officer of such authority or other person whomsoever acting under the direction of such authority, shall, if the matter or thing were done or the contract were entered into bonâ fide for the purpose P.H. 1872, s. of executing this Act, subject them or any of them personally to any action liability claim or demand whatsoever; and any expense incurred by any such authority member officer or other person acting as last aforesaid shall be borne and repaid out of the fund or rate applicable by such authority to the general purposes of this Act.

28.

Notices, &c.

or written.

L.G., s. 61.

Provided that nothing in this section shall exempt any member of any such authority from liability to be surcharged with the amount of any payment which may be disallowed by the auditor in the accounts of such authority, and which such member authorised or joined in authorising.

A similar provision was contained in the Metropolitan Commissioners of Sewers Act, 11 & 12 Vict. c. 112, s. 128; and it was held that the effect of it was to absolve from personal liability to an action persons who bond fide do some act under the direction of the Commissioners, which, but for that clause, would subject them to an action. Ward v. Lee, 26 L. J. Q. B. 142. Acting in an office is proof of being an officer, and the Court will assume that persons who are shown to have done an act within the scope of a public duty, were exercising that duty, without proof that they were or had been discharging it at the very time: if it be within a reasonable time it is sufficient. Doe d. Peter Hopley v. Young, 8 A. & E. 63; 15 L. J. Q. B. 9.

Notices.

266. Notices orders and other such documents under may be printed this Act may be in writing or print, or partly in writing and partly in print; and if the same require authentication by the local authority the signature thereof by the clerk to the local authority or their surveyor or inspector of nuisances shall be sufficient authentication.