to the metro

politan board of works.

Power to boards and

any person on behalf of such commissioners, shall pay the same to the metropolitan board of works, or as they may direct; and all monies then due and owing by or recoverable from the said commissioners shall be paid by or recoverable from the metropolitan board of works; and all contracts, agreements, bonds, covenants, and securities (f) theretofore made or entered into with or in favour of or by the said commissioners, and all contracts, agreements, bonds, covenants, and securities made or entered with or in favour of or by any former or other commissioners, which under the said Act of the eleventh and twelfth years of Her Majesty were to take effect in favour of, against, and with reference to the said metropolitan commissioners of sewers, and are now in force, shall take effect and may be proceeded on and enforced, as near as circumstances admit, in favour of, by, against, and with reference to the metropolitan board of works, as the same would have taken effect and might have been proceeded on and enforced in favour of, by, against, and with reference to the said metropolitan commissioners of sewers if this Act had not been passed, and the powers of such commissioners had continued in full force; and any retiring pension or allowance granted under section twenty-seven of the said Act of the eleventh and twelfth years of Her Majesty shall continue payable on the like terms by the said metropolitan board of works (g).

Auxiliary Powers common to the Metropolitan Board of Works and to Vestries and District Boards. CXLIX. The metropolitan board of works, and every

(f) See special provision for payment of mortgages, &c. of metropolitan board, sect. 181, post.

(g) The provision referred to authorized the commissioners to order the payment of the pension or allowance on such terms and out of such funds under their disposal as they thought fit. See 213th section of the present Act, as to retiring pensions to officers of metropolitan commissioners not continued in office by metropolitan board, &c.

enter into

district board and vestry, may enter into all such con- vestries to tracts as they may think necessary for carrying this contracts Act into execution; and every such contract for works (h) for carrying

(2) Under the 85th section of the 11 & 12 Vict. c. 63, (Public Health Act,) in which the language is very similar to that used in the present provision, it was decided that the section was not merely directory but created a condition, and that a contract by a non-corporate district not under seal was void; Frend v. Dennett, 27 L. J. (N. S.) C. P. 314; 4 Jur. (N. S.) 897; and the local board were held to have no power to contract so as to bind the rates unless they contracted in the manner described. The general rule is that all contracts by a corporation must be under their common seal, subject to certain exceptions in the case of contracts of a comparatively unimportant character, such as hiring a cook or appointing a bailiff. Further exceptions to the rule have been introduced in the case of contracts by trading corporations for carrying on their trade, for works or services incidental and necessary to the purposes of the corporation, contracts which from their nature cannot be under seal, contracts of urgency, &c. It is however difficult to apply those rules with certainty, nor is it quite practicable to reconcile the decisions of the courts upon the subject. Most of the authorities were reviewed in the following cases:-. -Paine v. Strand Union, 8 Q. B. 326; Homersham v. Wolverhampton Waterworks Company, 6 Ex. 137; Kirk v. Bromley Union, 12 Jur. 85; Lamprell v. Guardians of Billericay, 18 L. J. (N. S.) Ex. 282. Those authorities show that by the absence of a seal a contract is invalidated. See also Ernest v. Nicholls, 6 H. L. Ca. 40. In the following cases the contracts were held binding notwithstanding they were not under seal; Sanders v. Guardians of St. Neot's Union, 8 Q. B. 810; Clarke v. Guardians of Cuckfield Union, 21 L. J. (N. S.) Q. B. 349; Haigh v. Guardians of North Brierley Union, 28 L. J. (N. S.) Q. B. 62; and see Cox v. Midland Counties Railway Company, 3 Ex. 270. In contracts by boards and vestries the seal must probably still be proved by the evidence of a witness who knows it, notwithstanding the 8 & 9 Vict. c. 113, s. 1, dispenses with such proof in certain cases. As to penalties for non-completion of contract within the stipulated time, see Duckworth v. Alison, 1 M. & W.412; Holme v. Guppy, 3 M. &. W. 387; M'Intosh v. Midland Counties Railway, 14 M. &. W. 548; and see Thornhill v. Neats, 2 L. T. (N. S.) 539, C. P. See a suit by a party to whom the contractor had assigned his contract, and who completed the works, Aspinall v. London and North Western Railway

Act into execution.

or materials whereof the value or amount exceeds 107. shall be in writing or print, or partly in writing and partly in print, sealed with the seal of the board or vestry; and every contract so entered into, and duly executed by the other parties thereto, shall be binding on the board or vestry and their successors, and upon all other parties thereto : Provided always, that it shall be for penalties lawful for any such board or vestry to compound with

Power to compound

Company, 11 Hare, 325; and see case where works finished by the administrator of the contractor after his death; Crosthwaite v. Gardner, 21 L. J. (N. S.) Q. B. 356. Where a contract empowered a company after notice to take possession of the plant, and they acted on the notice, no relief could be obtained in equity; Ranger v. The Great Western Railway Company, 5 H. L. Ca. 72; and as to the form of such a notice, see Pauling v. Mayor of Dover, 24 L. J. (N. S.) Ex. 128. See as to effect of bankruptcy of contractor on right of employer to take possession of the plant, Rouch v. Great Western Railway Company, 4 P. & D. 686; Hawthorn v. Newcastle Railway Company, 3 Q. B. 734, n. See Dimes v. Grand Junction Canal, 3 H. L. Ca. 759. As to the sufficiency of certificate, see Pashby v. Mayor of Birmingham, 18 C. B. 2. And where under a similar contract the engineer's certificate was withheld, but it was found not to be fraudulently withheld, relief in equity was refused; Scott v. Corporation of Liverpool, 28 L. J. (N. S.) Ch. 230; the judgment in which case contains an elaborate and lucid exposition of the principles affecting the relative liabilities of parties to contracts for the execution of works. See also Scott v. Avery, 25 L. J. (N. S.) Ex. 30; Livingston v. Ralli, 24 L. J. (N. S.) Q. B.; Blackburn v. Smaith, 2 Ex. 183. As to action against a surety where there have been deviations from the contract, see Ware v. Calvert, 7 A. & E. 143; and see General Steam Navigation Company v. Rolt, 6 C. B. (N. S.) 550; Woodcock v. Oxford and Worcester Railway Company, 1 Dr. 521. See implied covenant by vestry to employ a contractor during the time stipulated in contract; Hornsby v. Vestry of St. Luke's, Chelsea, 2 L. T. Rep. (N. S.) 176, Q. B. Where a party had tendered for works to an incorporated company, which tender was accepted by them but not under seal, and no further contract was executed, it was held that the company could not maintain an action against the party making the tender; London Dock Company v. Sinnott, 27 L. J. (N. S.) Q. B. 129.

breach of

any contractor or other person in respect of any penalty in respect of incurred by reason of the non-performance of any con- contracts. tract entered into as aforesaid, whether such penalty be mentioned in any such contract or in any bond or otherwise, for such sum of money or other recompense as to the board or vestry may seem proper.

boards and

lands, &c.,

Act.

CL. It shall be lawful for the metropolitan board of Power to works and every district board and vestry to purchase, vestries to or to take on lease for such term as they may think fit, purchase any land, or any right or easement in or over any land for the purwhich they may deem necessary or expedient for the poses of this formation or protection of any works which they are authorized to execute under this Act, also any offices and other buildings, yards, stations, or places for deposit of refuse, materials, and things, or any land for the erection and formation of such offices and other buildings, yards, stations, or places for deposit; and also to contract for the purchase, removal, or abatement of any milldam, pound, weir, bank, wall, lock, or other obstruction to the flow of water, whereby sewerage or drainage is interrupted or impeded, and for the purchase of any land, or any right or easement in or over any land, which it may be necessary or expedient to purchase to prevent the obstruction of sewerage or drainage; and also to purchase or take on lease as aforesaid the whole or any part of any streams or springs of water, or any rights therein, which it appears to them necessary to acquire and use for the purposes of cleansing sewers and drains, and the other purposes of this Act, or any land which is deemed by them advisable to purchase or take on lease for the purpose of drawing or obtaining water from springs, or by sinking of wells, and for making and providing reservoirs, tanks, aqueducts, watercourses, and other works, or for any other purpose connected with the works for obtaining such supply of water as aforesaid: Provided always, that nothing herein contained shall authorize the said metropolitan board, or any district board or vestry, to use or permit to be used any such works for the purpose

Certain provisions of

8 & 9 Vict. porated with

c. 18, incor

this Act.

Lands not to

be taken

of carrying water by supply pipes into any house or factory for domestic (a), manufacturing, or commercial purposes (b).

CLI. For the purpose of enabling the said metropolitan board, and every district board and vestry, to obtain any land, or any right or easement (c) in or over any land, which they respectively may require for the purposes of this Act, "The Lands Clauses Consolidation Act, 1845," except the provisions of that Act with respect to the recovery of forfeitures, penalties, and costs, shall, subject to the provisions herein contained, be incorporated with this Act; and the provisions of the said Act so incorporated with this Act which would be applicable in the case of a purchase of any land, shall be applicable in the case of the purchase of a right or easement in or over any land; and for the purposes of this Act the expression "the promoters of the undertaking," wherever used in the said Lands Clauses Consolidation Act, shall mean the metropolitan board, or the district board or vestry, acting under the provisions of the said Act and this Act, as the case may be.

CLII. Provided always, that the provisions of the said compulsorily Lands Clauses Consolidation Act, "with respect to the metropolitan purchase and taking of lands otherwise than by agreeboard with ment," (d) shall not be incorporated with this Act, save

except by

(a) As to what use of water is included in the expression "domestic use," see Busby v. Chesterfield Water and Gas Company, 27 L. J. (N. S.) 174, M.C.

(b) See 25 & 26 Vict. c. 102, s. 67, post, giving power to vestries to compel supply of water to houses where supply can be obtained at a certain rate.

(c) The word "land" in the Lands Clauses Act does not include an easement. Pinchin v. London and Blackwall Railway Company, 24 L. J. Ch. 417.

(d) But the powers for the compulsory purchase of land given by the 57 Geo. 3, c. 29, for the improvements mentioned in sect. 80 of that Act, seem to be vested in vestries and district boards. That Act is now, by sect. 73 of 25 & 26 Vict. c. 102, extended to all the parishes in the metropolis. See the clauses,