(3.) Except by the permission of the said comissioners or trustees, the traffic of any of the said roads shall not at one time be stopped or in any way hindered · along more than half of its width, nor, if the half left open is of less than the clear width of fourteen feet, along more than one hundred yards in length; and no alteration shall be made in the inclination of any of the said roads of more than one foot in sixty feet:

(4.) All works shall be done under the superintendence of the general surveyor;

And all such precautions as he may direct for the protection and convenience of the public shall be taken by and at the expense of the party doing the works, and in default the said surveyor shall cause to be done in that behalf what he may think proper; and the party doing the works shall in all cases of damage occurring by reason of such works, and whether such precautions are or not taken, be answerable to the person suffering such damage, the said commissioners or trustees being hereby absolved from all liability in respect of the consequences of such works;

(5.) The party doing the works shall, as regards every road opened or disturbed, restore the same to its original state as to surface and material, and, in order to meet the expenses consequent upon the subsidence of materials newly filled in, shall repay to the said commissioners or trustees, on demand, such sum as they have expended in restoration of the road, not exceeding one shilling for every superficial square yard, and so far as the works affect the same, shall make good all drainage, paving of water channels, curbs of footpaths, and other matters and things connected with the maintenance of the said roads;

And on default the said surveyor may cause to be done in that behalf what he may think fit;

Certain provisions of

And the said surveyor may recover the expense so incurred by him in a summary manner (a).

INCORPORATED POWERS.

XLIV. The provisions of "The Towns Police Clauses

10 & 11 Vict. Act, 1847," (b)

c. 89, incor

porated with (1.) With respect (c) to obstructions and nuisances in the

this Act.

Certain pro

visions of

streets,

(2.) With respect to fires (d),

(3.) With respect to places of public resort (e),

(4.) With respect to hackney carriages,

(5.) With respect to bathing,

shall be incorporated with this Act.

XLV. The provisions of "The Towns Improvement

10 & 11 Vict. Clauses Act, 1847," with respect to the following matters,

c. 84, incor

porated with that is to say (ƒ),

this Act.

Byelaws for

licensing horses and asses, and as to their

(a) Quære, how and from whom?

(b) See the provisions of these Acts here referred to in the Appendix. With respect to the incorporation of parts of Acts by reference to the headings, see Ferrer v. The Commissioners of Sewers of London, L. R. 4 Exc. 227.

(c) By 10 & 11 Vict. c. 89, s. 5, it is provided that by the use of this language the clauses of that Act, applicable to the particular subjects shall be incorporated, but the incorporated clauses require attention to be paid to other clauses in the Act, and consequently such as appear to be requisite are printed in addition to the clauses actually incorporated. It will be found that No. (1) includes ss. 21-29, No. (2) ss. 30—33, No. (3) ss. 34-36, No. (4) ss. 37-68, and No. (5) s. 69.

It will be remembered that by sect. 7 of this Act, ante, the local board are substituted for the commissioners and undertakers mentioned in the Act in this and the following sections, and it is provided that the penalties prescribed by the incorporated Acts shall be recoverable, according to the provisions of 11 & 12 Vict. c. 63.

(d) See also, with reference to fires, 10 & 11 Vict. c. 34, ss. 109, 124, in the Appendix, which is incorporated by the next section, and section 34 of this Act, ante.

(e) Here it may be noticed that the 24 & 25 Vict. c. 61, s. 25, contains the following provision:-"The local board may make byelaws for licensing and regulating horses, ponies, mules, or asses standing for hire in the district, and for prescribing and regulating the stands, and fixing the rates of hire, and ordering the conduct of the drivers or attendants drivers and thereof, and also for licensing, regulating, and fixing the rates of hire of pleasure boats or vessels, and the persons in charge of the same." (f) No. (1) includes ss. 64, 65, No. (2) ss. 66-74, No. (3) ss. 75-78,

fares.

(1.) With respect to naming the streets and numbering the

houses,

(2.) With respect to improving the line of the streets and removing obstructions,

(3.) With respect to ruinous or dangerous buildings, (4.) With respect to precautions during the construction and repair of the sewers, streets, and houses,

(5.) With respect to the supply of water, except the proviso thereto,

(6.) With respect to the prevention of smoke,

(7.) With respect to slaughter-houses (g),

(8.) With respect to clocks,

shall be incorporated with this Act, subject to this qualification, that the above-mentioned provisions with respect to the prevention of smoke shall not extend to compel the consumption of all smoke in the case of all or any of the processes following;

That is to say, to the coking of coal, the calcining of ironstone or limestone, the making or burning of bricks, earthenware, quarries (h), tiles, or pipes, the raising of any mines or minerals, the smelting of iron ores, the refining, puddling, shingling, and rolling of iron or other metals, or to the melting and casting of iron into castings, or to the manufacture of glass, in any district where the provisions of the said (i) Act

No. (4) ss. 79-83, No. (5) ss. 121-124, No. (6) includes s. 108, No. (7) includes ss. 125-131, No. (8) includes s. 143. See the clauses printed in the Appendix.

In regard to some of these subjects special provisions will be found in 11 & 12 Vict. c. 63, or in this Act, and it will be important to ascertain whether the provisions in the Acts published in this work in any respect conflict with those in the incorporated Act. Where that may be the case the present statutes should be the rule to guide as containing the latest legislation on this particular subject.

(g) See further as to slaughter-houses, 11 & 12 Vict. c. 63, s. 62, ante, and post, sect. 50.

(h) Quere, whether this is the word intended? It is not customary to say that quarries are made or burnt. There are fires in lime quarries, but the calcining of limestone is already provided for.

(i) This refers to 10 & 11 Vict. c. 34, s. 108, which clause applies to cases where a special Act is to be passed, that is to say, where, in this

for the prevention of smoke are not now in force, in which the local board shall resolve that any one or more of such processes should be exempted from penalties (f) for not consuming all smoke, for any time specified in such resolution, not exceeding ten years, which may be annually renewed for a similar or any shorter period, if the board shall think fit;

And any justice or justices, before whom any person shall be summoned may remit the penalty in any case within such district in which he or they shall be of opinion that such person has adopted the best known means for preventing any nuisance from smoke, and has carefully attended to the same, so as to consume, as far as possible, the smoke arising from any process so exempted during such time as any such resolution shall extend to (g)

Unless an order (h) shall be issued by one of Her Majesty's principal secretaries of state directing that such exemption shall no longer be continued in such district to such processes or any of them after a time specified in such order (i).

instance, a district is hereafter to be formed. The text applies to something existing at the date of the Act. Probably the local Acts which contain special provision on this point, or which incorporated the 10 & 11 Vict. c. 34, and 16 & 17 Vict. c. 128, were intended to be referred to; so that where the consumption of smoke was required by the Act the local board could not exempt, but when there was no such requisition, they could. See further as to smoke which is not burnt properly, 29 & 30 Vict. c. 90, s. 19, in the Appendix.

(f) Which penalties are prescribed by 10 & 11 Vict. c. 34, s. 108. (g) This is similar to the provision in the Nuisances Removal Act, 18 & 19 Vict. c. 121 s. 27.

A local Act incorporated the Smoke Provisions of the 10 & 11 Vict. c. 34, but contained a similar power to that in the text of remission of the penalties. Where a magistrate found that the only mode by which the emission of smoke complained of could be diminished would render it impossible for the defendant to carry on his business with the furnace he used, the Court of Exchequer held that he had consumed the smoke as far as possible, and was entitled to a remission. These words are not to be construed absolutely, but as signifying, "as far as possible, consistent with the carrying on of the trade for which the furnace is used." Cooper v. Woolley, 36 L. J. M. C. 27; L. R. 2 Ex. 88. (h) As to this order see sect. 81, post.

(i) This clause, so far as it relates to the consumption of smoke, is singularly perplexing to the reader. The effect of it appears to be as

Watching

Will. 4, c. 90)

seded by

XLVI. In any district (k) where the Public Health Act, and lighting 1848, is in force, or where this Act is adopted, and in which Act (3 & 4 the Act passed in the third and fourth years of the reign of to be superKing William the Fourth, intituled "An Act to repeal an this Act Act of the Eleventh Year of His late Majesty King George the Fourth, for the lighting and watching of Parishes in England and Wales, and to make other provisions in lieu thereof," has been adopted, the said last-mentioned Act shall be superseded by this Act (7), and all lamps, lamp posts, gas pipes, fire engines, hose, and other property vested in the inspectors for the time being under the said Act, shall, in all existing districts under the Public Health Act, 1848, and

follows. The 10 & 11 Vict. c. 34, s. 108, requires that the smoke of the furnaces of certain works shall be consumed, but an exception may be made in respect of certain trades in districts, where at the date of this statute the provisions of the Act prohibiting the continuance of smoke are not in force, if the local board resolve that the penalty should not be incurred in respect of certain works for a term which may be annually renewed. Again, a justice may remit the penalty incurred, if satisfied that the best means have been resorted to for the consumption of the smoke during the time mentioned in the resolution. But all these exemptions and remissions will be unavailing if the secretary of state by his order prohibit the continuance of the exemption.

It seems therefore, that, after the resolution of the local board, a party may be summoned before the justice, who will have power to enforce the penalty or to remit it, unless the secretary of state has interfered and prohibited the exemption.

(k) This clause it is to be presumed will only take effect in districts co-extensive with the place where the 3 & 4 Will. 4, c. 90, has been adopted.

(i) The 3 & 4 Will. 4, c. 90, provides for the watching and lighting of parishes. The Public Health Act, 1848, amended by 12 & 13 Vict. c. 94, ante, provides for the lighting of the district, but there is no provision for the watching. Nevertheless as the whole of the first Act is superseded, it might seem to follow that no provision for watching the districts which are not boroughs, or places governed by some local Act containing powers to watch, would be available after the passing of this Act, so that the county police must act in such places exclusively. But the Act is not repealed, a new word, superseded, is used, which appears to signify that something else is substituted for what has gone before. No provision is made in these Acts for watching the district, and as there is nothing substituted for the provisions previously existing, it seems most reasonable to construe the clause as not affecting this part of the 3 & 4 Will. 4, c. 90.