The rule with respect to relief by injunction as applied to cases of nuisance is thus laid down by Lord Brougham, C., in the case of the Earl of Ripon v. Hobart, 3 M. & K. 179,—“ If the thing sought to be prohibited is in itself a nuisance the Court will interfere to stay irreparable mischief without waiting for the result of a trial; and will, according to the circumstances, direct an issue or allow an action, and if need be expedite the proceedings, the injunction being in the meantime continued. But where the thing sought to be restrained is not unavoidably and in itself noxious, but only something which may, according to circumstances, prove so, the Court will refuse to interfere until the matter has been tried at law, generally by an action, though in particular cases an issue may be directed for the satisfaction of the Court where an action could not be found so as to meet the question."

A mandamus will lie to compel a Local Board of Health to levy a rate to satisfy damages sustained by the personal representative of a deceased owner by reason of a sewer or drain having been made by the Local Board. Rowell v. Hartlepool, 34 L. T. 232.

Where a Local Board in the construction of a sewer diverted and diminished the supply of water to a mill belonging to the riparian proprietor of the river on which it was situated, on a mandamus to compel compensation for injuries done in the exercise of the powers of the Board under 11 & 12 Vict. c. 63, s. 45, it was held, that the acts complained of constituted an injuriously affecting of the river which the prosecutor would have been entitled by law to prevent, or to be relieved against-that the injuries might still have been the ground of an action at law, and that, therefore, the injury did not form the subject of compensation under 11 & 12 Vict. c. 63, s. 144, and the mandamus was wrong. Reg. v. Darlington, 10 L. T. (N.S.) 603; 5 B. & S. 515; 33 L. J. Q. B. 305; 10 Jur. (N.s.) 1196; 6 B. & S. 562. Affirmed in error, 29 J. P. 419; 35 L. J. Exch. Ch. 45.

It was held that the 144th section of the Public Health Act, 1848, and the 68th section of the Lands Clauses Act, 8 Vict. c. 18, refer to the same injuries, and must be construed together. Hall v. Bristol, 15 L. T. (N.s.) 572; 36 L. J. C. P. 110; L. R. 2 C. P. 322. 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. Reg. v. Metropolitan Board of Works, 38 L. J. Q. B. 201. 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. Under the Public Health Act, 11 & 12 Vict. c. 63, ss. 69, 144, compensation was payable for damage caused to the owners or occupiers of premises by works which the Local Board, upon the default of such owners or occupiers, are empowered to execute. Per Hannen, J., although the owner of the house may be bound under sect. 69 to pay his proportion of the cost (having regard to the frontage of the house) of altering to level, he may still be entitled to compensation out of the general district rate for the special damage which he has sustained in order that his neighbours and the district generally should be benefited. Reg. v. The Wallasey Local Board, 38 L. J. Q. B. 217; L. R. 4 Q. B. 351. 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. Peters v. Clarson, 7 M. & G. 548. In a case where a Local Board of Health did not deny 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 arbitrators, if of opinion that there was no damage, might in such case award that the amount of compensation was nothing. Brady v. Southampton, 4 E. & B. 1014; 24 L. J. Q. B. 239.

So where the declaration charged that the Local Board of Southampton so constructed a sewer that quantities of filth and sewage matter were

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A.D. 1875. 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, 12 Cl. & Fin. 507, and Duncan v. Findlater 6 Cl. & Fin. 894, apply to a case of this sort. Looking to the Local Board 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, 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 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." Southampton and Itchin Floating Bridge Company v. Southampton, 4 Jur. (N.s.) 1299.

In The Mersey Docks and Harbour Board Trustees v. Gibbs and Others, in error in the House of Lords, 14 L. T. (N.s.) 677; 12 Jur. (N.S.) 571; 35 L. J. Exch. 225; L. R. 1 H. L. 93, 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 intrusted by statute to perform certain works, and to receive tolls for the use of those works, although those tolls, unlike the tolls received by the private 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, 11 A. & E. 223, which was the case of an ordinary company, approved of, and the principle of liability for negligence there established applied to a corporate body intrusted 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. Coe v. Wise, 5

B. & S. 440; 10 L. T. (N.8.) 666. 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. Coe v. Wise, 14 L. T. (N.s.) 891; L. R. 1 Q. B. 711; 7 B. & S. 831; 371 L. J. Q. B. 262.

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. Reg. v. Metropolitan Commissioners of Sewers, 1 E. & B. 694. In another case the Court granted a mandamus commanding a Local Board of Health to make compensation for damage sustained by reason of their sinking shafts near to and making sewers under certain houses within their district. Reg. v. Burslem, 22 J. P. 400. 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 201., 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 201. whereby the defendants were unable to know whether proceedings were to be taken before an arbitrator or before justices, as provided by the Act. Reg. v. Burslem, 23 J. P. 84. A rule nisi was afterwards obtained to enter the verdict for the defendants on the trial of the issues raised upon the mandamus (Reg. v. Burslem, 33 L. T. 184), but was discharged by the Court, 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. Reg. v Burslem, 33 L. T. 201. 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 allegations in the return (beyond the traverse of the denial of liability which had been found for the prosecutor) were immaterial. Reg. on the prosecution of Hans Kingland v. Burslem, 28 L. J. Q. B. 345; 5 Jur. (N.s.) 1394. Affirmed by the Court of Exchequer Chamber in error from the Queen's Bench, 29 L. J. Q. B. 242; 6 Jur. (N.S.) 696: 2 L. T. (N.S.) 667.

Lord Campbell, C. J., in Reg. v. Halifax, 20 J. P. 51, 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, and 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 enacted 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 Court in making the rule absolute said that the duty to make compensation is clear, unless the prima facie case be answered, and that it must be complied with. It is the duty, the Court said, of the Local Board to administer the funds intrusted to them with a careful regard to the interests of the ratepayers, and it would be much to be deplored if the Local Board were in this case to persist in trying by the process of a mandamus a question which might be more cheaply determined. The

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counsel for such a body ought not to be here in such a case without authority to consent to such a course as the Court might recommend. Members of a Local Board are not personally liable to compensate a person for damage occasioned to him by their carelessness or want of due regard in the performance of their duty under the Act; but they are liable in this respect as a public body, and are entitled to reimburse themselves out of the funds over which they have control. Where, however, a member of the Board does something not within the scope of his authority as a member, it would seem that the Board as a body are not liable, but that personal liability would attach to the particular member in respect of the act done. Ruck v. Williams, 3 H. & N. 308. On this point see also Hall v. Taylor, 23 J. P. 20; ante, p. 177.

A Local Board being under 11 & 12 Vict. c. 63, s. 117, surveyors of highways, were held liable to an action at the suit of a person who when passing along the highway is injured by reason of the servants of the Board negligently leaving a heap of stones upon the highway. Foreman v. Canterbury, 40 L. J. Q. B. 138.

But nevertheless a Local Board of Health are in the same position with respect to actions for non-repair of a highway as the inhabitants of the parish or surveyor of highways, and therefore an action against them will not lie for damage occasioned by the non-repair of a highway. Gibson v. Preston (Mayor, &c., of), 22 L. Ť. (N.S.) 293; L. R. 5 Q. B. 218; 39 L. J. Q. B. 132; 34 J. P. 342. Though where an iron grid, through which water ran from the road into a sewer of the Local Board, was left broken for six months, whereby the plaintiff's horse was injured, the Local Board were held liable as the sewer authority. White v. Hindley Local Board, 32 L. T (N.S.) 460.

By statute 18 & 19 Vict. c. 120, s. 6, vestries and district boards in the Metropolis are required to execute the office of surveyors of highways within their parishes and districts; and if they duly execute the same, not personally interfering, they are not liable to a passenger for an injury caused to him by a heap of paving stones having been negligently left on the road by the workmen employed by the acting surveyor. Holliday v. St. Leonard, Shoreditch, 11 C. B. (N.s.) 192; 8 Jur. (N.S.) 79.

The common law liability of a parish to repair its highway is not transferred by 18 & 19 Vict. c. 120, to the vestries constituted under that Act, and therefore no action lies against the vestry at the suit of an individual who has sustained damage in consequence of a neglect to repair the common highway within the parish. Parsons v. St. Matthew, Bethnal Green, 37 L. J. C. P. 62; L. R. 3 C. P. 56.

Where the owner of a house in the metropolis employed a contractor to make a drain from his house to the main sewer under the powers given by the 18 & 19 Vict. c. 120, ss, 77, 110, and the contractor made the drain, but filled up the ground so negligently where it crossed a public footway that it subsided and left a hole, into which a person fell and was injured, it was held by the Court of Exchequer Chamber, reversing the judgment of the Court of Queen's Bench (Gray v. Pullen, 8 L. T. (N.S.) 201; 32 L. J. Q. B. 169), that the owner was liable for the injury; as he was bound to do the work properly, and was not excused by reason of his having employed to perform the work a contractor who omitted to do his duty. Gray v. Pullen, 34 L. J. Q. B. 265. But where an owner had demised the premises subject to a covenant to repair, he was held not liable for injuries caused by a defective grating. Gwinnell v. Eamer, 32 L. T. (N.S.) 835. Under the same Act it has been held that the mere temporary obstruction of access to premises, though it may cost some inconvenience and loss of business to the occupier, is not a "damage" in respect of which he is entitled to claim compensation under sects. 135, 225. Herring, app., v. The Metropolitan Board of Works, resps., 19 C. B. (N.S.) 510; 34 L. J. C. P. 372.

The following further illustrates the liability of public functionaries to compensate for damage caused by the execution of their statutory powers. Commissioners acting under the Towns Improvement Clauses Acts, 1847, are liable to an action, in their corporate capacity, at the suit of

a person who has suffered damage from a highway, within the limits of the Commissioners' Special Act, being allowed by them to remain in a dangerous condition. Per Blackburn J.: The Act casts on the Commissioners the duty of repairing the highway, and renders them indictable if they do not (sect. 49). In such an action it is not necessary to aver in the declaration that the Commissioners had funds. Hartnell v. Ryde Commissioners, 33 L. J. Q. B. 3.); 8 L. T. (N.s.) 574.

If the Metropolitan Board of Works, in the exercise of the statutory powers given them, do an act without exercising due care and skill, which causes injury, they will be liable to an action, although compensation is given by way of proceeding before justices by sects. 135 and 225 of the 18 & 19 Vict. c. 120, for damage done by acts done with due care, within the powers of the Act. Clothier v. Webster, 12 C. B. (N.s.) 790; 9 Jur. (N.S.) 231; 31 L. J. C. P. 316; 6 L. T. (N.s.) 461.

A private injury arising from a public nuisance is the subject-matter of an action for damages. The true test of liability in such a case is whether an excavation, whereby the nuisance was caused, be substantially adjoining the public way, over which the public have a right to go, and this principle applies to an action brought under the 9 & 10 Vict. c. 93. The occupier of land is bound to fence off any hole or area, which adjoins, or is so close to a public way that it may be dangerous to passers-by if left unguarded, and he is prima facie liable for any damage that may arise by neglecting to fence. Barnes v. Ward, 2 C. & K. 661.

Where under an Act the amount of any damage, costs, or expenses is directed to be ascertained or recovered in a summary manner, or the amount of damages, costs, or expenses directed to be paid, and the method of ascertaining the amount or enforcing the payment is not provided for, it shall, in case of dispute, be ascertained and determined before two justices, and that remedy is exclusive, and therefore an action will not lie against an owner for the amount of the expenses. St. Pancras Vestry v. Batterbury, 2 C. B. N.s.) 477; 26 L. J. C. P. 243; 3 Jur. (N.s.) 1106. See also ante, p. 281.

A contractor under the Metropolitan Board of Works having completed a sewer beneath a public highway and filled up the excavation in a reasonably proper manner, was held not liable for damage in consequence of a subsidence of the road which took place two or three months afterwards, causing a hole into which a horse and cart ran in the night and suffered damage. Hyams v. Webster, 16 L. T. (N.s.) 118; 36 L. J. Q. B. 166. Affirmed in error; 38 L. J. Q. B. 21; 9 B. & S. 1016.

18.

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309. If any officer of any trustees commissioners or Compensation other body of persons intrusted with the execution of any in certain cases Local Act, whether acting exclusively under the Local to officers. P.H. 1872, s. Act, or partly under the Local Act and partly under the 33. Local Government Acts, or any officer of any sanitary P.H. 1874, s. authority under the Sanitary Acts by this Act repealed, or of any local authority under this Act, is, by or in pursuance of the Public Health Act, 1872, or of this Act, or of any provisional order made in pursuance of either of those Acts, removed from his office, or deprived of the whole or part of the emoluments of his office, and does not afterwards receive remuneration to an equal amount in respect of some office or employment under or by the authority of any district under this Act, the Local Government Board may by order award to such officer such compensation as the said Board may think just; and such compensation may be by way of annuity or other