SECTION III.

REMEDIES BY ACTION AND BY INJUNCTION IN RESPECT OF INJURIES FROM

THE NEGLIGENT DOING OF THINGS AUTHORIZED TO BE DONE BY

STATUTE.

1071 Limitation of actions in respect of things done under local and personal statutes. By 5 & 6 Vict. c.97, s. 5, it is enacted, that the period within which any action may be brought for anything done under the authority or in pursuance of any local and personal Acts(p), shall be two years, or, in case of continuing damage, then the action must be brought within one year after such damage shall have ceased, and so much of any enactment as appoints any other period of limitation is repealed.

1072 Accrual of the cause of action and commencement of the period of limitation. Where the defendant, who was a surveyor of highways, dug into the plaintiff's soil, threw down fences, and erected a wall, and the Highway Act, 13 Geo. 3, c. 78, s. 81, required the action to be brought "within three months after the fact committed, and not afterwards ;" and no action was brought within the three months, and after that period had expired, the surveyor raised the wall and finished it, it was held that the raising of the wall was not a fresh fact committed within the meaning of the statute, and would not extend the period of limitation beyond the three months(q). But where the cause of injury was a digging in the soil of a street, and the excavation at first produced no injury to the plaintiff, but some months after it had been made, it weakened the foundations of the wall of the plaintiff's house, and caused it to fall, it was held that the falling of the wall of the house constituted the cause of action; that no action was maintainable for the digging in the street until injury to the plaintiff resulted therefrom, and, therefore, that the time of limitation ran from the falling of the wall, and not from the time of the making the excavation(). A continuing excavation of this sort has been said to be a continuing nuisance, constituting a continuing cause of action so long as it is per

(p) See Cock v. Gent, 13 Law J., Exch. 24, and ante, p. 711.

(q) Wordsworth v. Harley, 1 B. & Ad. 391.

(r) Roberts v. Read, 16 East, 217. Bonomi v. Backhouse, ante, pp. 75, 735; 34 Law J., Q. B. 181. Smith v. Thackerah, L. R., 1 C. P. 564.

mitted to exist(s); and so is a continuing obstruction to a watercourse and flow of water(t).

1073 of notice of action.-The words in clauses of Acts of Parliament requiring notice of action to be given "in respect of anything done in pursuance of the Act, or in execution of the powers thereof," apply to all cases where the parties are intending to act upon powers given by the statnte, and not merely using it as cloak for their own private purposes(u). Those words do not mean acts done in strict pursuance of the Act, because in such a case a person would be acting legally, and would not require protection. They mean, that a person, to be entitled to the protection, must bona fide and really believe himself to be authorized by the Act(x). Though he may erroneously exceed the powers the Act gives, or inadequately discharge the duties imposed upon him, yet if he acts bonâ fide, in order to execute such powers, or to discharge such duties, he is to be considered as acting in pursuance of the Act, and is entitled to the protection conferred upon persons so acting(y). Whenever, indeed, any action is brought against any one for anything done by the order, direction or authority of a person authorized to act in the matter, under the provisions of a public or a private Act of Parliament, it will generally be found necessary to give notice of action. It must be given in cases of nonfeasance, where the person, having undertaken to act in pursuance of some statute, has failed to do what he ought to have done; as well as in cases of misfeasance, where he has acted negligently or wrongfully in the execution of the Act(z). The notice must state positively that an action will be brought, and must in general state the cause of action(a).

Notice of action is required only where the action is brought for a tort or a quasi tort, and not for a breach of a specific contract(b). 1074 Notice of action to gas companies and trading corporations and their officers.-The right to notice of action has been extended by numerous Acts of Parliament to all sorts of trading corporations, joint-stock companies and associations called into existence by statute for a variety

(8) Holroyd, J., Howell . Young, 5 B. & C. 268. Gillon v. Buddington, Ry. & M. 164. (t) Whitehouse v. Fellows, 30 Law J., C. P. 305.

(*) Oakley v. Kensington Canal Co., 5 B. & Ad. 139. Beechey v. Sides, 9 B. & C. 809. (z) Hughes v. Buckland, 15 M. & W. 353. Gaby v. Wilts Canal Co., 3 M. & S. 589; ante, p. 712. (y) Smith v. Wiltshire, 2 B. & B. 620. Smith v. Shaw, 10 B. & C. 284. [Joule v. Taylor, 7 Exch. 58. See per Blackburn, J., L. R., 6 Q. B. 84. And see ante, p.

711 et seq.

(a) Mason v. Birkenhead Com., etc., 6 H. & N. 72; 29 Law J., Exch. 406.

(b) Wightman, J., Davis v. Curling, 8 Q. B. 293. Fletcher v. Greenwell, 4 Dowl. P. C. 166, Davis v. Mayor, etc., of Swansea, 22 Law J., Exch, 297.

AD. VOL. II,-58

of local and private purposes, and purposes of gain, so that whenever an action of tort is brought against a company or association which is incorporated or regulated by statute, or derives its powers from some special Act of Parliament, or against the officers of any such company or association, it will, in general, be necessary to give notice of action. This will be found to be the case in actions against many of the gas companies or their officers for things done by them under the powers or in pursuance of their several Acts of Incorporation, also against certain railway companies(c) when there has been an omission of some duty imposed upon the company by the Act, such as the non-repair of fences, or the charging or levying excessive tolls under the powers of their Act of Incorporation (d); but when the action is brought against them for a breach of their duty as common carriers, no notice of action is requisite(e).

Neither the Lands Clauses nor the Companies Clauses Consolidation Act, however, contain any section requiring notice of action to be given to companies in respect of things done by them under the authority of those statutes; but s. 141 of the Companies Clauses Act (8 & 9 Vict. c. 16), and s. 135 of the Lands Clauses Act (8 & 9 Vict. c. 18), entitle the company to a verdict, if before action they tender sufficient amends.

1075 Notice of action to toll and tax-collectors and revenue-officers.-Notice of action also is required to be given in respect of things done by toll-collectors on turnpike-roads acting in pursuance of the General Turnpike Act(f), or certain special Acts of Parliament authorizing the collection of toll(g), or by revenue-officers(h), tax-collectors(i), or commissioners and other persons acting in the execution of the several Acts relating to the landtax(). If the officer has reasonable grounds for thinking that his duty required him to do the injurious act complained of, he is entitled to notice of action(k). If a toll or tax, though not legally payable, is demanded bonâ fide by a collector, who intends to act right, and has fair and reasonable grounds for believing that he has a right to demand the money, the collector is entitled to the statutory protection, and

(c) Carpue v. Lond. and Brighton Rail. Co., 5 Q. B. 747.

(d) Kent v Gt. West. Rail. Co., 3 C. B. 725.

(e) Palmer v. Grand Junction Rail. Co., 4 M. & W. 766. Garton v. Gt. West. Rail. Co., E. B. & E. 837, 846.

(f) 3 Geo. 4, c. 126.

(g) Waterhouse v. Keen, 4 B. & C. 200.

(h) Greenway v. Hurd, 4 T. R. 553.

(i) 43 Geo. 3, c. 99, s. 70.

(j) 5 & 6 Wm. 4 c. 20, s. 19. Thomas v. Williams, 13 Law J., Exch. 87.

(k) Daniel v. Wilson, 5 T R. 1.

must have notice of action(). But if a revenue-officer, toll or tax-collector, improperly, and without color of right, extorts money by virtue of his office, and in plain and manifest abuse of the statute under which he acts, he will then lose the statutory protection, and will not be entitled to any notice of action. If he makes an improper seizure of goods, and then takes money as a bribe to deliver them up again, there is no statutory protection(m). If he makes a wholly unauthorized charge, and is guilty of manifest extortion under a threat of legal proceedings, or the pressure of a distress(n), he cannot shelter himself under the provisions of the statute.

1076 Notice of action against contractors, etc., under Local Boards of Health.-A contractor who contracts with a Local Board of Health for the digging of drains and wells and making excavations, is a person acting under the direction of the board within 11 & 12 Vict. c. 63, s. 139, and is entitled to notice of action for digging a hole in a public thoroughfare, and leaving it unguarded and without a light, although the board might not be liable for the contractor's act(o). So a contractor is entitled to notice of action, under the Metropolis, Local Management Amendment Act, 25 & 26 Vict. c. 102, who, in enlarging a sewer, under a contract with the Metropolitan Board of Works, has dammed it up, although he has been guilty of negligence in not pumping away the sewage water which had accumulated, and which in consequence flowed into the plaintiff's house(p). But where the injury is caused by the negligence of his servant, in leaving his cart unattended in the public streets, and the horse runs away and Nor is a person who

causes damage, he is not entitled to notice(g). receives notice to drain his house under the 106th section of the 25 & 26 Vict. c. 102, and who in so doing commits a trespass by laying the drain-pipe in the land of another, entitled to notice(r). 1077 Notice of action against surveyors and persons acting in execution of the Highway Acts.-The Highway Act, 5 & 6 Wm. 4, c. 50, s. 109, requires notice of action to be given for anything done in pursuance of the Act. Where, therefore, a surveyor of highways left an obstruction of gravel and sand in a highway, and had notice to remove it, and

(7) Waterhouse v. Keen, 4 B. & C. 211.

(m) Irving v. Wilson, 4 T. R. 486.

(a) Umphelby v. M'Lean, 1 B. & Ald. 42.

(0) Newton v. Ellis, 5 Ell. & Bl. 115; 24 Law J., Q. B. 337.

(p) Poulson v. Thirst, L. R., 2 C. P. 443. See Wilson v. Mayor of Halifax, L. R., 3 C. P. 114.

(q) Whatman v. Pearson, L. R., 3 C. P. 422,

(r) Doust v. Slater, 38 Law J., Q. B. 159.

failed so to do, it was held that he was entitled to notice of action(s). And where a highway board, with their surveyor, trespassed upon private grounds, and broke down a private gate in the assertion of a supposed right of way which had no existence, it was held that they were entitled to notice of action. "The defendants," observes Lord Denman, "might believe that they were acting in execution of the power to remove obstructions in public roads without coming to a very irrational conclusion. The argument against it is, indeed, founded on a specific clause, which prescribes a different course of proceeding to this end, but we are not prepared to hold that officers of this description are bound to argue on a comparison of clauses in a long Act, and to decide correctly"(t). Wherever, therefore, a surveyor is acting bonâ fide in his public capacity as surveyor, he is entitled to notice of action(u).

A person acting as surveyor under an appointment in fact, though an informal and illegal one, is, nevertheless, entitled to notice of action if he was acting in what he did in the bonâ fide belief that he had been properly appointed(v). And so where a surveyor received payment under a informal assessment, made apparently under a repealed Act, but bonâ fide intended to act according to the duties of his office, and in pursuance of the statute authorizing him in that behalf (w). 1078 Tender of amends before action.-The statutes requiring notice of action to be given further provide, as we have seen, that the action shall not be maintainable, and that the jury shall give a verdict for the defendant, if there has been a tender of sufficient amends before action (ante, pp. 593, 728). This is the case with the Lands Clauses Act (8 & 9 Vict. c. 18, s. 135); the Railway Clauses Act (8 & 9 Vict. c. 20, s. 139); the Waterworks Clauses Act (10 & 11 Vict. c. 17, s. 84); the Harbors, Docks, and Piers Clauses Act (10 & 11 Vict. c. 27, s. 91); the Towns Improvement Clauses Act (10 & 11 Vict. c. 34, s. 209); the Commissioners Clauses Act (10 & 11 Vict. c. 16, s. 103); the Markets and Fairs Clauses Act (10 & 11 Vict. c. 14, s. 51); the Town Police Clauses Act (10 & 11 Vict. c. 89, s. 72); the Cemeteries Clauses Act (10 & 11 Vict. c. 65, s. 61); the Contagious Diseases (Animals) Act, 1869 (32 & 33 Vict. c. 70, ss. 110-113); and the Ecclesiastical Dilapidations Act, 1871 (34 & 35 Vict. c. 43, s. 68).

(8) Davis v. Curling, 8 Q. B. 292.

(t) Smith v. Hopper, 9 Q. B. 1014.

(u) Hardwick v. Moss, 31 Law J., Exch. 207.

(v) Hughes v. Buckland, 15 M. & W. 355.

(w) Selmes v. Judge, L. R., 6 Q. B. 724.