C. 63. 11 & 12 VICT. mitted: provided always, that if the said local board be the informer they shall be entitled to the whole of the penalty recovered; and all penalties or sums recovered on account of any penalty by them shall be paid over to the treasurer, and shall by him be placed to the district fund account mentioned in this act. Liability to penalty not to relieve from other liabilities. Appeal to quarter sessions. Power of sessions upon appeals against rates. No rate or CXXXIV. And be it declared and enacted, that, notwithstanding the liability of any person to any penalty under the provisions of this act, he shall not be relieved from any other liability to which he would have been subject if this act had not been passed. CXXXV. And be it enacted, that any person who shall think himself aggrieved by any rate made under the provisions of this act, or by any order, conviction, judgment, or determination of or by any matter or thing done by any justice or justices, in any case in which the penalty imposed or the sum adjudged shall exceed the sum of twenty shillings, may appeal to the court of general or quarter sessions (a) holden next after the making of the rate objected to, or accrual of the cause of complaint; but the appellant shall not be heard in support of the appeal unless within fourteen days after the making and publication of the rate appealed against, or accrual of the cause of complaint, he give to the local board of health or justice or justices by whose act he may think himself aggrieved notice in writing stating his intention to bring such appeal, together with a statement in writing of the grounds of appeal; and the said court, upon hearing and finally determining the matter of the appeal, shall and may, according to its discretion, award such costs to the party appealing or appealed against as they shall think proper, and its determination in or concerning the premises shall be conclusive and binding on all persons to all intents and purposes whatsoever: provided always, that if there be not time to give such notice and enter into such recognisance as aforesaid before the sessions holden as last aforesaid, then such appeal may be made to, and such notice, statement, and recognisance be given and entered into for, the next sessions at which the appeal can be heard provided also, that on the hearing of the appeal no grounds of appeal shall be gone into or entertained other than those set forth in such statement as aforesaid (b). CXXXVI. And be it enacted, that the said court of general or quarter sessions shall upon appeals under this act against any rate have the same power to amend or quash any rate or assessment, and to award costs between the parties to the appeal, as is or may by law be vested in any court of general or quarter sessions with respect to amending or quashing any rate or assessment, or awarding costs, upon appeals with respect to rates for the relief of the poor; and the costs awarded by the said court under this act may be recovered in the same manner in all respects as costs awarded upon the last-mentioned appeals: provided always, that, notwithstanding the quashing of any rate appealed against, all monies charged by such rate shall, if the court before whom the appeal is heard think fit so to order, be levied as if no appeal had been made, and such monies, when paid, shall be taken as payment on account of the next effective rate for the purposes in respect of which the quashed rate was made. CXXXVII. And be it enacted, that no rate, nor any proceeding to be proceeding had touching the conviction of any offender against this act, nor any order, to be quashed for want award, or other matter or thing whatsoever made, done or transacted of form, &c. in or relating to the execution of this act, shall be vacated, quashed, or set aside for want of form, or be removed or removable by certiorari or other writ or process whatsoever into any of the superior courts. (a) See 21 & 22 Vict. c. 98, s. 75, and 8 & 9 Vict. c. 18, s. 14. Ricardo v. Maidenhead L. B., 2 H. & N. 257. (b) See 21 & 22 Vict. c. 98, s. 54. C. 63. rate dis CXXXVIII. And be it enacted, that the local board of health of any 11 & 12 VICT. noncorporate district may sue and be sued in the name of the clerk for the time being for or concerning any contract, matter, or thing whatsoever Proceedings relating to any property, works or things vested or to become vested in in case of them by reason of the provisions of this act, or relating to any matter or noncorpothing whatsoever entered into or done, or intended to be entered into or tricts. done, by them, under the provisions of this act; and in any action of Actions, &c. ejectment brought or prosecuted by such local board it shall be sufficient in name of to lay the demise in the name of the said clerk; and in proceedings by or clerk. on the part of such local board against any person for stealing or wilfully Mode of injuring or otherwise improperly dealing with any property, works, or describing things belonging to them or under their management, it shall be sufficient property of local board. to state generally that the property or thing in respect of which the proceeding is instituted is the property of the said clerk, and all legal proceedings by, on the part of, or against such local board, under this act may be preferred, instituted, and carried on in his name; and no pro- Actions, &c., ceedings whatever shall abate or be discontinued by the death, resignation, not to abate. or removal of the clerk, or by reason of any change or vacancy in such local : board by death, resignation, or otherwise provided always, that the clerk Clerk to be in whose name any such action or suit, complaint, information, or proceed- reimbursed ing, may be brought, preferred, instituted, or defended as aforesaid, shall expenses. be fully reimbursed, out of the general district rates to be levied under this act, all such costs, charges, damages, and expenses as he shall or may be or become liable to pay, sustain, or be put unto by reason of his name being so used. action. CXXXIX. And be it enacted, that no writ or process shall be sued out Notice of against or served upon any superintending inspector, or any officer or person acting in his aid, or under the direction of the general board of health, nor against the local board of health, or any member thereof, or the officer of health, clerk, surveyor, inspector of nuisances, or other officer or person whomsoever acting under the direction of the said local board, for anything done or intended to be done under the provisions of this act, until the expiration of one month next after notice in writing shall have been delivered to him, or left at their or his office or usual place of abode, clearly and explicitly stating the cause of action (a), and the name and place of abode of the intended plaintiff, and of his attorney or agent in the cause; and upon the trial of any such action the plaintiff shall not be permitted to go into evidence of any cause of action which is not stated in the last-mentioned notice; and unless such notice be proved the jury shall find for the defendant; and every such action shall be brought or Limitation commenced within six months next after the accrual of the cause of of actions, action, and not afterwards, and shall be laid and tried in the county or Venue. place where the cause of action occurred, and not elsewhere (b); and the General defendant shall be at liberty to plead the general issue, and give this act issue. and all special matter in evidence thereunder; and any person to whom any Tender of such notice of action is given as aforesaid may tender amends to the amends, &c. plaintiff, his attorney or agent, at any time within one month after service of such notice, and in case the same be not accepted may plead such tender in bar, and (by leave of the court) with the general issue or other plea or pleas; and if upon issue joined upon any plea pleaded to the whole action the jury find generally for the defendant, or if the plaintiff be nonsuited or discontinue, or if judgment be given for the defendant, then the defendant shall be entitled to full costs of suit, and have judgment accordingly; and in case amends have not been tendered as aforesaid, or Money may in case the amends tendered be insufficient, the defendant may, by leave of be paid into (a) See Newton v. Ellis, 5 E. & B. 115, 24 L. J., Q. B. 337; Mason v. Birkenhead Commissioners, 4 H. & N. 72. (b) See, however, Itchin Co. v. Southampton, 27 L. J., Q. B. 128. court. C. 63. 11 & 12 VICT. the court, at any time before trial, pay into court, under plea, such sum of money as he may think proper, and (by the like leave) may plead the general issue or other plea or pleas, any rule of court or practice to the contrary notwithstanding. Persons act cution of act not to be liable. CXL. And be it enacted, that no matter or thing done or contract ing in exe entered into by the local board of health, nor any matter or thing done by any superintending inspector, or any member of the said local board, or personally by the officer of health, clerk, surveyor, inspector of nuisances, or other officer or person whomsoever acting under the direction of the said local board, shall, if the matter or thing were done or the contract were entered into bona fide for the purpose of executing this act, subject them or any of them personally to any action, liability, claim, or demand whatsoever; and any expense incurred by any such local board, member, officer of health, clerk, surveyor, inspector of nuisances, or other officer or person acting as last aforesaid, shall be borne and repaid out of the general district rates levied under the authority of this act. Miscellaneous. Orders in CXLI. And be it enacted, that her Majesty may from time to time alter or amend any order in council made under or in pursuance of the provisions of this act, by any subsequent order in council, in such manner as her Majesty, by and with the advice of her privy council, may think provisional proper; and if at any time it appear to the general board of health that any provisional order made by them under this act should be altered or and districts amended, or that the boundaries of any district should be altered or council and orders may be amended extended. Publication of orders in extended, they shall make a provisional order under their hands and seal of office accordingly: provided always, that no order in council or provisional order as last aforesaid shall be made until such proceedings have been taken in and with respect to the district and parts to be affected thereby as are hereinbefore required to be taken previously to the original constitution of a district under this act; and no such provisional order shall be of any force or effect without the previous authority of parliament, as hereinbefore prescribed with respect to provisional orders made under this act (a). CXLII. And be it enacted, that all orders in council under this act council, &c. shall take effect and be in full force and operation within the district to which they apply from and after a day which shall be specified in such orders for that purpose; and a copy of every such order shall be published in the London Gazette, and shall be laid before parliament in the month of January in every year if parliament be then sitting, or if parliament be not then sitting then within one week after the next meeting thereof; and whenever any provisional order of the general board of health is submitted to parliament for confirmation, the said general board shall present to both houses of parliament a copy of all reports of any superintending inspector with respect to the parts to which the provisional order relates, parliament. and of all memorials forwarded to the said general board with respect to such reports. Reports of superintending inspectors, &c., to be laid before Entry upon lands for the purposes of this act. CXLIII. And be it enacted, that in case it shall become necessary to enter, examine, or lay open any lands or premises for the purpose of making plans, surveying, measuring, taking levels, examining works, ascertaining the course of sewers or drains, or ascertaining or fixing boundaries, and the owner or occupier of such lands or premises shall refuse to permit the same to be entered upon, examined, or laid open for the purposes aforesaid or any of them, the local board of health may, upon notice to such owner or occupier, apply to two justices for an order authorising the members of such local board, and the superintending inspector, surveyor, and inspector of nuisances, or any of them, to enter, examine, and lay open the said lands and premises for the purposes aforesaid or any of them, and if no sufficient cause shall be shown against (a) See 21 & 22 Vict. c. 98, s. 77. C. 63. the same the said justices may make an order authorising the same 11 & 12 VICT. accordingly, and thereupon any superintending inspector, the local board of health, or any member thereof, the surveyor, and inspector of nuisances, and any person authorised by any such superintending inspector, local board, surveyor, or inspector of nuisances, may, at all reasonable times between the hours of ten in the forenoon and four in the afternoon, enter, examine, or lay open the lands or premises mentioned in such order, for such of the said purposes as shall be specified in the said order, without being subject to any action or molestation for so doing: provided always, that, except in case of emergency, no entry shall be made or works commenced under the powers of this enactment unless twenty-four hours at the least previously thereto notice of the intended entry, and of the object thereof, be given to the occupier of the premises intended to be entered. CXLIV. And be it enacted, that full compensation shall be made, out Compensaof the general or special district rates to be levied under this act, to all tion in case of damage persons sustaining any damage by reason of the exercise of any of the by local powers of this act; and in case of dispute as to amount the same shall board. be settled by arbitration in the manner provided by this act, or if the compensation claimed do not exceed the sum of twenty pounds, the same may be ascertained by and recovered before justices in a summary manner. not to be CXLV. And be it declared and enacted, that nothing in this act shall Sewers, &c., of commisbe construed to authorise the local board of health to use, injure, or sioners of interfere with any sluices, floodgates, sewers, groynes, sea defences, or sewers, priother works already or hereafter made under the authority of any com- vate watermissioners of sewers appointed by the crown, or any sewers or other courses, &c., works already or hereafter made and used for the purpose of draining, used without preserving, or improving land under any local or private act of parliament, consent. or for the purpose of irrigating lands, or to use, injure, or interfere with any watercourse, stream, river, dock, basin, wharf, quay, or towing path in which the owner or occupier of any lands, mills, mines, or machinery, or the proprietors or undertakers of any canal or navigation, shall or may be interested, without consent in writing first had and obtained; and that nothing herein contained shall prejudice or affect the rights, privileges, powers, or authorities given or reserved to any person under any local or private act of parliament for the drainage, preservation, or improvement of land, or for or in respect of any mills, mines, machinery, canal, or navigation as last aforesaid (a). owners CXLVI. And be it enacted, that in any case in which the local board Local board of health may have incurred expenses for the repayment whereof the may allow owner of the premises (b) for or in respect of which the same are incurred time for reis made liable by this act, the said local board may, if they think fit, payment of allow such owner time for repayment, and receive the same by such annual expenses. instalments, not being less than one thirtieth part of the entire sum, together with interest at the rate of five pounds in the hundred upon the sum from time to time remaining unpaid, as they, under the circumstances of each case, may consider to be just; but although time for repayment be allowed as last aforesaid, the sum due, or so much thereof as may be unpaid, shall from time to time, in case of default in payment at the times respectively appointed for payment, be recoverable in like manner in all respects as the entire sum might have been recovered if time for repayment had not been allowed. dence CXLVII. And be it enacted, that every person who upon any examina- False evition on oath under the provisions of this act shall wilfully and corruptly punishable give false evidence shall be liable to the penalties inflicted upon persons as perjury. guilty of wilful and corrupt perjury. 11 & 12 VICT. C. 63. defacing upon occupiers preventing execution of works. CXLVIII. And be it enacted, that whosoever wilfully obstructs any superintending inspector, or any member of the local board of health, or Penalty for any officer or person duly employed in the execution of this act, or obstructing destroys, pulls down, injures, or defaces any board upon which any byelaw, officers, notice, or other matter is inscribed, shall, if the same were put up by boards, &c.; authority of the local (a) or general board of health, be liable for every such offence to a penalty not exceeding five pounds; and if the occupier of any premises prevent the owner thereof from obeying or carrying into effect the provisions of this act, any justice to whom application is made in this behalf shall, by order in writing (which may be according to the form contained in the schedule (F.) to this act annexed, or to the like effect,) require such occupier to permit the execution of the works required to be executed, provided that the same appear to such justice to be such as are necessary for the purpose of obeying or carrying into effect the provisions of this act; and if within a reasonable time after the making of such order the occupier against whom it is made refuse to comply therewith, he shall be liable to a penalty not exceeding five pounds for every day afterwards during the continuance of such refusal; and if the occupier of any premises, when requested by or on behalf of the local board of health to state the name of the owner of the premises occupied by him, shall refuse or wilfully omit to disclose or wilfully mis-state the same, any justice may, on oath made before him of such request, and refusal, omission, or mis-statement, summon the party to appear before him or some other justice at a time and place to be appointed in such summons, and if after being so summoned he neglect or refuse to attend at the time and place so appointed, or if he do not show good cause for such refusal, or if such wilful omission or mis-statement be proved, the justice before whom the party is so summoned may impose upon the offender a penalty not exceeding five pounds. Occupiers to disclose owner's name. Consents of board of health and local board to be in writing. upon owners and Occupiers. CXLIX. And be it enacted, that whenever the consent, sanction, or approval or authority of the general board of health is required by the provisions of this act, the same shall be in writing under their seat and the hands of two or more members thereof; and whenever the consent, sanction, approval, or authority of the local board of health is so required the same shall (in the case of a noncorporate district) be in writing under their seal and the hands of five or more of them, or (in case of a corporate district) under their common seal. Service of CL. And be it enacted, that any summons, notice, writ, or proceeding notice upon of any kind whatsoever to be served upon the local board of health may be local board; so served by being left at or sent through any post office, directed to the local board of health, at their office, or by being delivered there to the clerk personally; and in all cases in which any notice is by this act required to be given to the owner or occupier of any premises it shall be sufficient to address the notice to them by the description of the "owner" or "occupier" (as the case may require) of the premises (naming them) in respect of which the notice is given, without further name or description; and the notice shall be served upon them or one of them, as the case may require, either personally or by delivering the same to some inmate of his or their place of abode, (b) or in the case of the occupier (and also in case of the owner, if his place of abode be unknown,) upon any inmate of the last-mentioned premises, or if such premises be unoccupied, then, in case the notice is required to be served upon the occupier, (and in case of the owner also, if his residence be unknown,) it shall be sufficient to fix the notice upon some conspicuous part of the premises : provided always, in the case of notices to the owner, that, although his place of abode be known to the local board of health, yet if it be not within the (a) See 21 & 22 Vict. c. 98, s. 66. (b) See note (e), p. 122. |