A.D. 1875. Order of pro of house unfit for human habitation. N.R. 1855, s. order both requiring abatement and prohibiting the recurrence of the nuisance. The court may by their order impose a penalty not exceeding five pounds on the person on whom the order is made, and shall also give directions as to the payment of all costs incurred up to the time of the hearing or making the order for abatement or prohibition of the nuisance. A form for the order is given in sch. IV., Form A, post, p. 330. Works to which the order may extend.—The order of justices may extend to the execution of such works as are necessary to abate the nuisances mentioned in sections 12, 13, and 14 of the 18 & 19 Vict. c. 121, which corresponded to sects. 95-98 of this Act; per Erle, J., in Reg. v. Middleton, 5 Jur. (N. s.) 624; and those works are not necessarily structural works within the meaning of sect. 16 of the Act. The corporation of Liverpool built a gaol outside the limits of the borough, in the township of Walton, the drainage from which was carried off by open drains passing through land not belonging to the corporation, in the township of Bootle-cumLinacre; and the Nuisance Removal Committee of this latter township, under sect. 12 of the 18 & 19 Vict. c. 121, summoned the corporation for this nuisance, which could only be removed by the construction of a covered drain through the land. The justices accordingly made an order upon the corporation "within three months to abate and discontinue the nuisance, and to do such works and acts as are necessary to abate the same." Upon a motion on behalf of the corporation for a certiorari to bring up the two orders which were made in the case, and for a mandamus to the Court of Quarter Sessions to hear an appeal against the first order, it was held that the order was proper and properly made on the corporation, that it was an order to abate a nuisance merely, and not an order for structural works to be executed within sect. 16, and that consequently there was no appeal to quarter sessions. Ex parte Liverpool (Mayor, &c.), 27 L. J. M. C. 89; 4 Jur. (N. s.) 333; 8 E. & B. 537. The limitation in 11 & 12 Vict. c. 43, s. 11, does not apply to such a case as a continuing nuisance. Higgin, app., Northwich, resp., 34 J. P. 452, S06; 22 L. T. (N. s.) 752, ante, p. 71. As to the last clause of the section, see ante, pp. lv, lxxvii. 97. Where the nuisance proved to exist is such as to hibition in case render a house or building, in the judgment of the court, unfit for human habitation, the court may prohibit the using thereof for that purpose until, in its judgment, the house or building is rendered fit for that purpose; and on the court being satisfied that it has been rendered fit for that purpose the court may determine its previous order by another, declaring the house or building habitable, and from the date thereof such house or building may be let or inhabited. 13. Penalty for of order of 98. Any person not obeying an order to comply with the contravention requisitions of the local authority or otherwise to abate the nuisance, shall, if he fails to satisfy the court that he has used all due diligence to carry out such order, be liable to a penalty not exceeding ten shillings per day during his default; and any person knowingly and wilfully acting contrary to an order of prohibition shall be liable to a penalty not exceeding twenty shillings per day during such contrary action; moreover, the local authority may enter the premises to which any order relates, and abate the nuisance, and do whatever may be necessary in execution of such order, and recover in a summary manner the expenses incurred by them from the person on whom the order is made. Contravention of order.- Where, however, a Local Board have ordered works to be done to abate a nuisance, and the person upon whom the order is made does works, but not to the extent or in the manner ordered, the justices, on an application of the Board to enforce the order, have no power to dismiss the complaint if they are of opinion that all that was really necessary to be done has been done, but are bound to enforce execution of the order of the Board. Hargreaves v. Taylor, 38 L. T. 241; 3 B. & S. 613; 32 L. J. M. C. 111. Where an order to abate a nuisance by removing offensive privies, etc., was directed to "the owner or to the Nuisances Removal Committee," the owner being directed to remove the same within seven days, and if such order were not complied with, the committee were authorized and required to enter and remove the nuisance complained of, and the seven days elapsed without the owner or the committee having removed the nuisance, it was held that the justices had power to fine the owner, under 18 & 19 Vict. c. 121, s. 14, which was similar to the above section, for disobedience to the order, although it was directed to the committee as well as to him. Tomlins v. Great Stanmore, 12 L. T. (N. s.) 118; 29 J. P. 117. The 18 & 19 Vict. c. 121, s. 14, which imposed a penalty on persons on whom an order of justices had been made under the Act for disobedience to the order, and authorized the local authority to enter on the premises to which the order related, and abate the nuisance, was merely permissive in the latter respect; and a mandamus would not be granted to compel the local authority to enforce the order on the default of the person upon whom it was made. In re Ham, Surrey, 26 L. J. M. C. 64; S. C. Ex parte Bassett, 7 E. & B. 280; 3 Jur. (N. s.) 136. Previous summons to offender.-Penalties imposed by the 14th section of the 18 & 19 Vict. c. 121, for disobeying an order to abate a nuisance under section 13, could not be enforced without previously summoning the offender under section 20 of the Act. Reg. v. Jenkins, 9 Jur. (N.s.) 570; 32 L. J. M. C. 1; 7 L. T. (n. s.) 272; 3 B. & S. 116. It may be observed here that long before the first Nuisances Removal Act, it was held by the Court of Exchequer that an entry on the land of another in order to remove a nuisance of filth, by a person injured thereby, is justifiable without previous notice, where the owner of the land is himself the original wrongdoer by placing it there. So possibly also where the nuisance arises from a default in the performance of some obligation on him. But where the nuisance is created by another, and the owner succeeds to the locus in quo, he is entitled to notice before an injured person can enter to remove it. The case of an abatement of a nuisance dangerous to life may, however, be an exception. Jones v. Williams, 11 M. & W. 176; 12 L. J. Exch. 249. A.D. 1875. ss. 15, 16. 99. Where any person appeals against an order to the Appeal against court of quarter sessions in manner provided by this Act, order. N. R. 1855, no liability to penalty shall arise, nor shall any proceedings be taken or work be done under such order until after the determination of such appeal, unless such appeal ceases to be prosecuted. As to appeals to Quarter Sessions, see sect. 269, post. 100. Whenever it appears to the satisfaction of the court In certain cases of summary jurisdiction that the person by whose act or order may be A.D. 1875. default the nuisance arises, or the owner or occupier of the premises is not known or cannot be found, then the order local authority. of the court may be addressed to and executed by the N.R. 1855, s. local authority. addressed to 17. Power to sell manure, &c. N.R. 1855, s. 18. Power of entry rity. A form for such order is given in sch. IV., Form D, post, p. 331. 101. Any matter or thing removed by the local authority in abating any nuisance under this Act may be sold by public auction: and the money arising from the sale may be retained by the local authority, and applied in payment of the expenses incurred by them with reference to such nuisance, and the surplus (if any) shall be paid, on demand, to the owner of such matter or thing. 102. The local authority, or any of their officers, shall of local autho- be admitted into any premises for the purpose of examining as to the existence of any nuisance thereon, or of enforcing the provisions of any Act in force within the district requiring fireplaces and furnaces to consume their own. smoke, at any time between the hours of nine in the forenoon and six in the afternoon, or in the case of a nuisance arising in respect of any business, then at any hour when such business is in progress or is usually carried on. San., 1866, ss 20 and 31. Where under this Act a nuisance has been ascertained to exist, or an order of abatement or prohibition has been made, the local authority or any of their officers shall be admitted from time to time into the premises between the hours aforesaid, until the nuisance is abated, or the works ordered to be done are completed, as the case may be. Where an order of abatement or prohibition has not been complied with, or has been infringed, the local authority, or any of their officers, shall be admitted from time to time at all reasonable hours, or at all hours during which business is in progress or is usually carried on, into the premises where the nuisance exists, in order to abate the same. If admission to premises for any of the purposes of this section is refused, any justice on complaint thereof on oath by any officer of the local authority (made after reasonable notice in writing of the intention to make the same has been given to the person having custody of the premises), may, by order under his hand, require the person having custody of the premises to admit the local authority, or their officer, into the premises during the hours aforesaid, and if no person having custody of the premises can be found, the justice shall, on oath made before him of that fact, by order under his hand authorise the local authority or any of their officers to enter such premises during the hours aforesaid. Any order made by a justice for admission of the local authority or any of their officers on premises shall continue in force until the nuisance has been abated, or the work for which the entry was necessary has been done. See the forms of orders E and F in sch. IV., post, pp. 331, 332. Inspection of premises.-Having obtained admission to the premises, the inspection of the alleged nuisance should be so conducted as to enable the local authority to determine whether it exists, or whether it existed at the time the notice was given, and whether, although it has since been removed or discontinued, it is likely to recur or to be repeated; and in all cases it will be the most expedient course to reduce to writing the result of the inspection. When the inspection is made by an officer of the local authority, it will also be expedient for that authority, on receiving the report of their officer, formally, and in writing, to record the conclusions to which they have come after considering his report, in order to ground further proceedings. Execution of works. It should be borne in mind that the Act gives no power to the local authority to enter upon any premises to execute works, such as are contemplated by this section, except in the event of disobedience of an order of justices; and that, if they make such an entry, they may be restrained by a Court of Equity; for if a tribunal having a limited jurisdiction goes beyond that jurisdiction, it is unnecessary to resort to the appeal clause of the Act, as the Court of Chancery interferes for the purpose of restraining the exercise of powers beyond the jurisdiction of the bodies exercising them; per Lord Justice Turner, in Tinkler v. Wandsworth, 22 J. P. 221. And further, with reference to the excess of jurisdiction which had been exercised by the local authority in that case, he said, it may be as well to caution the defendants, intrusted as they are by the Act (i.e. the Metropolis Local Management Act, 18 & 19 Vict. c. 120) with very extensive powers, that it is their bounden duty to look well that they keep strictly within their powers, and not to be guided by any fancied opinions of their own as to the "spirit" of the Act by which they are governed. This caution, it seems scarcely necessary to add, is equally applicable to local authorities acting under the Public Health Act, 1875. The above case of Tinkler v. Wandsworth first came before ViceChancellor Stuart on a motion for an injunction to restrain the defendants, the Board of Works for the Wandsworth district, from pulling down or converting the privies attached to thirty-nine cottages belonging to the plaintiff, situate at Ford's Buildings, in the parish of Battersea, into water-closets. On the 27th January, 1857, the defendants caused a notice to be served on the plaintiff's agent, requiring the plaintiff to commence, within fourteen days from the date thereof, the conversion of the privies in question into water-closets. The plaintiff in consequence informed the defendants that the occupiers of the cottages were satisfied with the accommodation which was attached to their dwellings, and that the proposed water-closets would be found inconvenient, and be perpetually getting out of order. The defendants replied, that it was their intention to do away with all privies in their district where there was available drainage for water-closets. A sewer having been in the meantime constructed by the defendants for carrying off the sewage matter from the water-closets proposed by them to be constructed on the plaintiff's premises, they on the 8th June, 1857, served the plaintiff's agent with a notice, entitled, "In the Metropolis Local Management Act, 18 & 19 Vict. c. 120, and in the Nuisances Removal and Diseases Prevention Act, 18 & 19 Vict. c. 121," to the effect that as the plaintiff had not constructed the works required by them to be constructed by their former notice, the workmen of their contractor would forthwith execute such works on or after the expiration of seven days from the service of the notice of the 8th of June, and that the defendants would adopt the course provided by the law for enforcing the payment of the expenses thereby incurred. Afterwards, on A.D. 1875. A.D. 1875. the 7th November, the defendants' workmen entered on the plaintiff's premises and commenced the works. Vice-Chancellor Stuart, in delivering the judgment of the Court, said, that the Legislature, by the 12th section of the 18 & 19 Vict. c. 121, had provided the proper tribunal for trying questions of this kind. Before justices of the peace such questions might, according to the provisions of the Act, be speedily and cheaply tried and decided. After hearing all that was urged by the counsel for the defendants, there appears, he said, nothing to satisfy the mind of any reasonable man that the Local Board are justified in refusing to proceed so as to have the question between them and the plaintiff tried before the justices of the peace according to the Act of Parliament. Assuming that there was such a nuisance as required the intervention of the Board, it is not satisfactorily shown that they have proceeded with a proper degree of moderation; they did not proceed so as to give that right of appeal to the justices, or even that intervention in the first instance of a justice, which is authorized by the Act. The proceedings of the defendants sought to be restrained are wholly arbitrary, and have been so conducted by them as to exclude the intervention of any other opinion than their own, and that of their own officers, to guide them in the exercise of those enormous statutory powers which are inconsistent with the ordinary common law right of every Englishman. And again, he said, it is not reasonable that the defendants should be allowed to proceed in such a manner as to deprive the plaintiff of the means of having his legal rights adjudicated upon by a proper legal tribunal. Without entering more minutely into the evidence on both sides, it is sufficient to say, that, upon the whole, there seems enough proved on the part of the plaintiff to show that he has a right to the intervention of a proper legal tribunal to adjudicate upon the question between himself and the defendants as to the legality of their proceedings, and the nature of the works which must be done. It is not consistent with the doctrine of the Court of Chancery that, when questions of that kind are to be determined, the defendants should be allowed to decide the question in their own favour, and put in force violently those powers conferred by the Act, till that which seems the proper legal tribunal shall have decided that the case is one to justify the exercise of those extraordinary powers. The order, therefore, went for an injunction according to the prayer of the bill filed by the plaintiff until answer or further order; the plaintiff undertaking to proceed without delay to construct at his own expense proper and sufficient works and conveniences on the premises, so as not to be objectionable as a nuisance or liable to removal under any proceedings before justices, under the 12th, 13th, and 14th sections of the 18 & 19 Vict. c. 121, with liberty to either party to apply as they might be advised. This order having been appealed against, it was confirmed by the Lords Justices of Appeal (Knight Bruce and Turner) with costs; their Lordships holding, that, assuming that a district Board had jurisdiction under the 18 & 19 Vict. c. 121, to order water-closets to be provided instead of privies in particular cases where such an alteration may be required, yet the Board was bound to exercise its discretion in each particular instance, and was not competent to lay down any general rule requiring that in all cases water-closets shall be provided in the place of privies: and that the jurisdiction of the Court of Chancery to interfere by injunction was not ousted by the 211th section of the 18 & 19 Vict. c. 120, giving an appeal to the Metropolitan Board of Works. The order, therefore, was illegal and bad. Tinkler v. Wandsworth, 27 L. J. Ch. 342; 2 De G. & J. 261; 4 Jur. (N. s.) 293; 21 J. P. 757; 22 J. P. 224. The question as to the extent in this respect of the powers of the local authority in the metropolis is now, however, settled by a more recent decision. The Metropolis Local Management Act, s. 81, enacts, "that if it appear to the vestry or district Board that any house is without a sufficient water-closet or privy and ashpit, they may require the owner or occupier to provide a sufficient water-closet or privy and ashpit, or either of them, as the case may require;" and the Court of Queen's Bench have held that the section authorizes the vestry or district Board to require a water-closet to be provided for premises in lieu of a privy already existing |