such maintenance or repairs such part of the expense of alterations or improvements as may be equal to what would be incurred for such maintenance or repairs, and to throw on the parish, district, or persons aforesaid the residue of such expense, and to settle and adjust such proportions either by some general regulation or by order in each particular case, as they may think proper: Provided always, that nothing in this Act contained shall exempt from liability to do any works, or to pay the whole cost thereof, any person who, by prescription, by reason of tenure, or otherwise by law, is so liable.

proceeding on the presentment of the Marsh jury, and compelling the execution of the requisite works. The terms of the 61st sect. of the 3 & 4 Will. 4 excluded this commission and the other sewers' commissions in Middlesex from its operation; and the course of proceeding under it somewhat differed from that provided under the commissions south of the Thames, to which the Act applied; but obligations generally similar in character to those existing under the Greenwich commission were habitually enforced. There is some difficulty attending the mode of proving and enforcing liabilities of this nature under the present Act. The ordinary mode of establishing such a liability is by the inquisition of a jury. The present Act, however, contains no provision for summoning a jury. The 144th sect. of the 11 & 12 Vict. c. 112 (Metropolitan Sewers Act, 1848), provided that the Sewers Act, 3 & 4 Will. 4, c. 22, should not apply to any commission issued under it, but the 96th sect. expressly empowered the metropolitan commissioners of sewers, on the trial of appeals against sewers' rates, to try the question of the appeal by a jury in the same manner as a traverse of a presentment of rateability was triable according to the laws and usages of sewers, and on the trial of such appeals it is obvious that questions affecting liabilities of this nature must sometimes have incidentally arisen. The 59th sect. of the same Act empowered the metropolitan commissioners to do or direct any work to be done, and exercise all the powers of the Act in relation thereto, upon the information or presentment of their surveyor, without any other presentment in relation thereto; and though the 68th section of the present Act transfers to the vestry, &c. all the rights of their predecessors concerning or incident to sewers, those words do not seem to include the power of proceeding by presentment. The liability might probably be established by production of the inquisitions, decrees, &c. of the sewers' commissioners, and by proof that

Gully holes,

&c. to be

LXXI. Every district board and vestry shall, by protrapped (b). viding proper traps or other coverings, or by ventilation, or by such other ways and means as shall be practicable for that purpose, prevent the effluvia of sewers from exhaling through gully holes, gratings, or other openings of sewers in any of the streets or other places within their district or parish.

Vestries and district

boards to

to be

LXXII. Every vestry and district board shall cause the sewers vested in them to be constructed, covered, cause sewers and kept so as not to be a nuisance or injurious to health, and to be properly cleared, cleansed, and emptied, and for the purpose of clearing, cleansing, and emptying the same they may construct and place, either above or

cleansed, &c. (c).

they were obeyed, though there is authority to show that proof of obedience might be dispensed with. In R. v. Leigh, 2 P. & Dav. 357; S. C. 10 Ad. & E. 398, orders of courts of sewers commencing more than seventy years previously were admitted in evidence, though it was not shown that such orders had been complied with. The court in that case laid it down that such orders were good evidence as adjudications by a court of competent jurisdiction over the subject-matter, unless they were affected by proof of fraud or collusion, and that at so great a distance of time their execution might be presumed. If the works were executed by a vestry or district board the expenses incurred in carrying them out might, perhaps, be expenses recoverable under the 226th sect. An indictment at common law probably lies against a party liable ratione tenure to repair, &c. See R. v. Earl Cadogan, 5 B. & Al. 902, where on an indictment for not repairing a bank and wall next the Thames, whereby a highway in the parish of Chelsea was in danger of being flooded, the court refused to grant an inspection of the court rolls of the defendant's manor. In R. v. Gamble, 11 A. & E. 69, the court refused a mandamus to landowners liable ratione tenure to amend and heighten banks, but that was on the ground that the applicants, the conservators of the Bedford level, had the authority of commissioners of sewers, and might proceed by presentment. See R. v. Commissioners of Pagham, 1 B. & C. 255; R. v. Ouse Bank Commissioners, 3 A. & E. 344.

(b) See notice to metropolitan board, &c. required before trapping their sewers, 25 & 26 Vict. c. 102, s. 27, post.

(c) See action against a district board for neglect to keep a sewer clean, Meek v. Whitechapel Board of Works, 2 F. & F. 144; and as to right of landowners to apply for an injunc

under ground, such reservoirs, sluices, engines, or other works as may be necessary.

in certain

compel

construct

the common

LXXIII. If any house (d) or building, whether built Vestry or before or after the commencement of this Act, situate district board within any such parish or district, be found not to be cases may drained by a sufficient drain communicating with some owners, &c. sewer, and emptying itself into the same, to the satis- of houses to faction of the vestry or board of such parish or dis- drains into trict, and if a sewer of sufficient size be within one sewer. hundred feet of any part of such house or building, on a lower level than such house or building, it shall be lawful for the vestry or board, at their discretion, by notice in writing, to require the owner of such house or building forthwith, or within such reasonable time as may be appointed by the vestry or board, to construct and make from such house or building into any such sewer a covered drain, and such branches thereto, of such materials (e), of such size, at such level, and with such fall as shall be adequate for the drainage of such house or building, and its several floors or storeys, and also of its areas, waterclosets, privies, and offices, (if any,) and for conveying the soil, drainage, and wash therefrom into the said sewer, and to provide fit and proper paved or impermeable sloped surfaces for conveying surface water thereto, and fit and proper sinks, and fit and proper syphoned or otherwise trapped inlets and outlets for hindering stench therefrom, and fit and proper water supply (ƒ), and water supplying pipes,

tion to restrain drainage causing nuisance, Attorney-General v. Council of Borough of Birmingham, 4 Kay & Johns. 528.

(d) The word "house" under the Public Health Act, 11 & 12 Vict. c. 63, was held to apply to a toll-house on a turnpike road; Trustees of Tunstall Turnpike Roads v. Lowndes, 20 J. P. 374.

(e) See as to the discretion given to vestries to determine the material to be used, Austin v. St. Mary, Lambeth, cited in note (h) to sect. 76, post.

(f) See now sect. 67 of 25 & 26 Vict. c. 102, post, authorizing vestries to compel owners of houses to obtain supply of water, at a rate not exceeding 3d. per week, and as to proceedings in case of deficient supply.

Penalty on owner, &c. for neglect.

Provision for combined

cisterns, and apparatus for scouring the same, and for causing the same to convey away the soil, and fit and proper sand traps, expanding inlets, and other apparatus for hindering the entry of improper substances therein, and all other such fit and proper works and arrangements as may appear to the vestry or board, or to their officers, requisite to secure the safe and proper working of the said drain, and to prevent the same from obstructing or otherwise injuring or impeding the action of the sewer to which it leads; and it shall be lawful for the said vestry or board to cause the said work's to be inspected while in progress, and from time to time during their execution to order such reasonable alterations therein, additions thereto, and abandonment of part or parts thereof, as may to the vestry or board or their officers appear, on the fuller knowledge afforded by the opening of the ground, requisite to secure the complete and perfect working of such works; and if the owner of such house or building neglect or refuse, during twentyeight days after the said notice has been delivered to such owner, or left at such house or building, to begin to construct such drain and other works aforesaid, or any of them, or thereafter fail to carry them on and complete them with all reasonable despatch, it shall be lawful for the vestry or board to cause the same to be constructed and made (a), and to recover the expenses to be incurred thereby from such owner in the manner hereinafter provided (b).

LXXIV. If it appear to the vestry or board of any drainage of parish or district that a group or block of contiguous houses, or of adjacent detached or semi-detached houses, may be drained and improved more economically or ad

blocks of

houses (c).

(a) See sect. 64 of 25 & 26 Vict. c. 102, post, authorizing vestries under this and the 74th, 76th, 81st, 85th, and 86th sections, to execute the works or proceed for the penalties. (b) See ss. 225 and 226, post.

(c) By the 250th section, any drain for draining a group of houses by a combined operation under the orders of

vantageously in combination than separately, and a sewer of sufficient size already exist or be about to be constructed within one hundred feet of any part of such group or block of houses, whether contiguous, detached, or semi-detached, it shall be lawful for such board or vestry to order that such group or block of houses be drained and improved, as hereinbefore provided, by a combined operation.

be built

structed to

LXXV. It shall not be lawful to erect any house or No house to other building in any parish mentioned in schedule (A.) without to this Act, or in any district mentioned in schedule (B.) drains conto this Act, or to rebuild any house or building within the satisfacany such parish or district which has been pulled down tion of the to or below the floor commonly called the ground floor, district board (d). or to occupy any house or building so newly built or rebuilt, unless a drain and such branches thereto and other

vestries, falls within the definition of a drain as contradistinguished from a sewer. But as combined drainage was laid down before the passing of the Act under the direction of the Metropolitan Commissioners of Sewers, and claims were made on the vestries to maintain such drainage at the public cost, the meaning of the word "drain" has been extended by the 112th section of the 25th & 26th Vict. c. 102, so as to include drains of this nature laid down before the passing of the Act.

(d) This clause is founded on the 46th section of the Metropolitan Sewers Act, 1848, 11 & 12 Vict. c. 120, but it omits the provision which was contained in that enactment, authorizing the commissioners to compel the owner or occupier of the house to continue sewers situate within a certain distance of the premises to be drained. The intention of this Act seems to be to confine the obligations of private parties to the making of drains; and to throw the responsibility and cost of constructing sewers on public bodies. See Clarke v. Vestry of Paddington, cited in note (g) to s. 76. See now the provisions relating to the construction of sewers in new streets, in streets in which there had either been no sewers or only open sewers, 25 & 26 Vict. c. 102, s. 52, et seq. post, and s. 57, giving an appeal to the metropolitan board against orders of vestries, &c., as to the amount or apportionment of the expenses of constructing sewers wholly or partly at the cost of private parties.

D

and

vestry or