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Limitation of actions.

Venue.

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, and the name and place of abode of the intended plaintiff, and of his attorney or agent in the cause (c) ;

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 commenced within six months next after the accrual of the cause of action (d), and not afterwards, and shall be laid and tried in the county or place where the cause of action occurred, and not elsewhere (e) ;

See further, Hardwick v. Moss, 7 H. & N. 127; Mason v. Birkenhead Gas Company, 6 H. & N. 72; Whatman v. Pearson, Law Rep. 3 C. P. 422.

(c) The party need not, when he is doing the act, be cognizant of this provision, nor is he prevented from claiming the benefit of it by departing slightly from it. Read v. Coker, 13 C. B. 850.

(d) Where the cause of action is the doing of the act itself, this limitation of time runs from the act; where it is the resulting damage, it runs from the time when the damage results; and when the injurious act is continuing and causes continuous damage, the right of action also continues. Whitehouse v. Fellowes, 10 C. B. (N. s.) 765; Bonomi v. Backhouse, E. B. & E. 622; 28 L. J. Q. B. 378; 34 L. J. Q. B. 181. This limitation of time does not apply to a claim for compensation in respect of property taken or injuriously affected by the works of the local board. Delany v. The Metropolitan Board of Works, 37 L. J. C. P. 59. ; 3 L. R. C. P. 111. Still less to an action on an award made by an arbitrator under the Lands Clauses Act, in the case of such an injury. Ib.

(e) This does not deprive the court of their cominon law power to change the venue where in their judgment the ends of justice require that they should do so. The Itchin Bridge Company v. The Southampton Local Board of Health, 27 L. R. Q. B. 128; 8 E. & B. 803; 3 Jur. (N. s.) 1261.

When an action is brought and judgment is recovered against a local board of health, that board are not prevented from satisfying the judgment, though six months have elapsed from the accrual of the debt on which the judgment shall be founded, notwithstanding sect. 89. Nor

issue.

And the defendant shall be at liberty to plead the general Genera issue (ƒ), and give this Act and all special matter in evidence thereunder;

amends, &c.

And any person to whom any such notice of action is given Tender of as aforesaid may tender amends to the 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 (g);

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, Money may "be paid into or in case the amends tendered be insufficient, the defendant court. may, by leave of 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.

CXL. And be it enacted, that no matter or thing done (h), or contract entered into by the local board of health, nor

are the board prevented from obtaining a postponement of the satisfaction of the judgment for a period exceeding six months. Reg. v. Rotherham Local Board of Health, 22 Jur. 261; 8 E. & B. 906; 27 L. J. Q. B. 156. See, however, Waddington v. City of London Union, 28 L. J. M. C. 113; E. B. & E. 370.

(f) See Beaver v. The Corporation of Manchester, 8 E. & B. 44, when a special plea justifying under a local Act similar to this statute was held good.

(g) See 8 & 9 Vict. c. 18, s. 135.

(h) But the local board, notwithstanding the language of this clause, are liable to be sued in respect of damages arising out of their negligence in omitting to cause proper precautions to be taken in the execution of works which they order to be done. In such a case the action was held to be properly brought against the clerk of the board, as the damages will be payable out of the rates. Ruck v. Williams, 27 L. J. R. Exc. 357; 3 H. & N. 308; but under the 29 & 30 Vict. c. 90, s. 46, the local board must be now sued in their corporate name.

Persons act

ing in execunot to be

tion of Act

personally liable.

any matter or thing done by any superintending inspector, or any member of the said local board, or by the officer of

It may be well to state, that in the case just cited, the local board had ordered a new sewer to be constructed in their district under a contract and plans which did not provide for a "penstock or flap," which was requisite to prevent the plaintiff's premises from being flooded by the influx of a river into them through the sewer, and in consequence of such omission they were flooded and greatly damaged. This was held to be negligence on the part of the local board, for which they were liable.

In Southampton and Itchin Bridge Company v. Southampton Local Board of Health, 8 E. & B. 801; 4 Jur. (N. s.) 1298; 28 L. J. Q. B. 41, the local board was held to be liable to an action for so negligently and improperly constructing a sewer as to have caused a nuisance by its discharge, and an injury to the plaintiffs. There the local board, being a corporation, were sued in that character.

Where a corporation provided an improper machine in a washhouse, they were held liable for a damage caused thereby. Cowley v. Mayor

of Sunderland, 6 H. & N. 365; 30 L. J. Ex. 127, 177.

Where negligence is proved on the part of those employed or contracted with by any public body to execute works, and that negligence is shown in the manner of executing those works, the body is not liable for injury which results from it. Steel v. The South Eastern Railway Company, 16 C. B. 550; Butler v. Hunter, 7 H. & N. 826; Bayley v. The Wolverhampton Waterworks Company, 6 H. & N. 241. But if the damage arises out of the works themselves, or if the public body are really the parties executing the works, they are liable. Scott v. Corporation of Manchester, 1 H. & N. 59; Holl v. The Sittingbourne Railway Company, 6 H. & N. 488; 30 L. J. Ex. 81; Blake v. Thirst, 2 H. & C. 20; 32 L. J. Ex. 188. Where a duty is incumbent upon a public body, they are not excused forthe omission or imperfect or improper performance of the duty by reason of having engaged a contractor to do it. Pickard v. Smith, 10 C. B. (N. s.) 470. Gray v. Pullen, 5 B. & S. 970; 32 L. J. Q. B. 169. Of course a public board is not answerable for damage which results from the negligence of the party injured, or of some other person independent of the public body, or acting contrary to or beyond their directions. See Holden v. The Liverpool New Gas and Coke Company, 3 C. B. 1. Neither is such a board responsible for accidents arising out of extraordinary causes, where all reasonable care has been taken to prevent such as would arise from ordinary causes. Thus a waterworks company were held not liable for damages arising out of a frost of unusual severity. Blyth v. Birmingham Waterworks Company, 2 Jur. (N. 8.) 333; 11 Exc. 781. Where a public board let a navigation and omitted to give notice to the lessee to repair, and in consequence of the want of repair a barge-owner sustained loss, the commissioners were held not to be liable to him on the ground of their omission, the loss not necessarily resulting therefrom. Walker v. Goe, 3 H. & N. 395; 27 L. J. Exc. 427, confirmed, 28 L. J. Exc. 184; 4 H. & N. 350.

Where a corporation were empowered to improve the navigation of a

health, clerk (ƒ), surveyor, inspector of nuisances, or other officer or person (g) whomsoever acting under the direction.

river, and for this purpose erected staunches, which being accompanied with the accumulation of filth and the growth of weeds caused the river to overflow and damage the lands adjoining the banks, it was held that the riparian owner had no ground of action against the corporation, though he might have a claim for compensation. Cracknell v. Mayor

and Corporation of Thetford, Law Rep. 4 C. P. 629; 38 L. J. C. P. 353. It has been noticed above that as actions are not maintainable against the surveyor of the highways for accident arising out of the nonrepair of the highways, so the local board are not answerable on any such account. But town commissioners in whom the management of the highways was vested with a special liability to indictment for nonrepair, were held to be responsible for accidents arising out of the nonrepair of the highways within their district. Hartwell v. Ryde Commissioners, 10 Jur. (N. s.) 257; 33 L. J. Q. B. 39; 4 B. & S. 361; 8 L. T. 574. But see Wilson v. The Corporation of Halifax, 17 L. T. (N. 8.) 660; L. R. 3 Ex. 114.

It is now decided by the judgment of the House of Lords, where all the previous cases were fully examined, that trustees aud commissioners having charge of public works, from which they derive no private benefit, are liable for injuries arising out of the management of those works, caused by negligence of which they have knowledge, or, but for their own culpable negligence, may have knowledge. This liability is not personal, but creates a charge upon the income derived from the undertaking, although that income may have been appropriated to special objects by the legislature. The Mersey Docks and Harbour Board Trustees v. Gibbs and others, Law Rep. 1 Eng. & Ir. App. 93.

If the legislature by express enactment or necessary intendment enact that no such liability shall be incurred, it must be otherwise.

Where public commissioners are guilty of negligence in the management of their works, and certain persons, to avert or remove damage which would result from such negligence to themselves, do an act which damages a third person, he has a right of action against the commissioners, whose negligence was the primary cause of the damage. Collins v. Middle Level Commissioners, 38 L. J. C. P. 236; L. Rep. 4 C. P. 279, and see also Harrison v. Great Northern Railway Company, 3 H. & C. 231.

(f) The clerk was necessarily liable to an action according to sect. 138, though the clause extended to prevent his actual and personal responsibility, but now it is otherwise since 29 & 30 Vict. c. 90, s. 46.

(9) These words will exempt from personal liability every one who has bona fide contracted with the local board to do some act under their directions, though he may thereby cause a damage to another person which the act itself does not justify or excuse. Ward v. Lee and another, 7 E. & B. 426; 26 L. J. R., Q. B. 142. The remedy in such a case according to the judgment of the court, would be against the local board, who would be reimbursed out of the district rate. In Le Feuvre v. Miller, 8 E. & B. 321, a question was raised and argued whether a

of the said local board, shall, if the matter or thing were done or the contract were entered into bonâ fide for the purpose of executing this Act, subject them or any of them personally to any action, liability, claim, or demand, whatsoever (z);

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.

bailiff who executed a warrant of distress to enforce payment of a rate alleged to be illegal was within this section, but it became unnecessary to decide it.

Notwithstanding these general words of reimbursement, it will be a question to be determined hereafter whether the individual members of a local board who may knowingly by their acts involve such board in expenses in consequence of their illegal proceedings, cannot be held personally responsible. See the audit clause in 21 & 22 Vict. c. 98, s. 60, post.

It may be noticed that a person who contracts for works under a local board is not liable for an injury which arises out of those works long-after they are completed. Hyams v. Welster, Law Rep. 2 Q. B. 264.

(z) But the local board of health will be liable to the contractor in an action on the contract if broken, and he will not be compelled to proceed in equity, or by mandamus, in the first place, or in an action on the case for the recovery of his damages. Nowell v. The Mayor, &c. of Worcester, 9 Exc. Rep. 457; Payne v. Mayor of Brecon, 3 H. & N. 572; 27 L. J. Exc. 495. The judgment, if given against a municipal corporation, will not, however, operate as a charge upon the real estate belonging to it, unless the lords of the treasury, upon a special memorial enable this to be done. Arnold v. Mayor, &c. of Gravesend, 25 L. J. R., Ch. 777. Nor, as it seems, upon the other property of the corporation. Pallister v. Mayor of Gravesend; 9 C. B. 774; Arnold v. Ridge, 13 C. B. 745. As already noticed it may, however, be enforced by a mandamus. But upon that application it will be open to the board to show that the contract entered into was void by reason of some provision in this Act, or because it was ultra vires. In the note on section 138, the enforcing of judgments against the property of local boards is discussed.

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