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PRESIDENT, ETC., OF SION COLLEGE

v.

MAYOR, ETC., OF THE CITY OF LONDON. Light and Coke Company (supra), Bayley, J., said, in the course of his judgment, "Besides, the house and window tax was a new one imposed after the exemption was given; and the exemption may be considered analogous to a covenant to pay taxes which applies to old taxes or others substituted for them, but not to taxes entirely new unless there are express words to give it such extensive operation." That being so, we have to deal with the question whether the exemption extends to the consolidated rate. It seems to me that when the numerous subject-matters of the consolidated rate, many of which were not known when the exemption was created in 1757, are looked at, the inference is that it is a new assessment, and not the less so because it includes some of the elements of the old tax. I think it is substantially a new tax, and that therefore it does not fall within the exemption. It is not necessary to decide whether the words of section 169 of the Act of 1848 take away the exemption created by the earlier Act.

ROMER, L.J.-I agree.

Having regard

to the decisions of long standing to which reference has been made it is clear that section 51 of 7 Geo. III. c. 37 has had an interpretation put upon it and does not extend to assessments not in existence at the time when the Act was passed. Is the consolidated rate a substantially new assessment? On the facts I cannot help coming to the conclusion that it is, although it includes some items which formed part of the old tax. It cannot be split up, and it includes so much that is new that in my opinion we are bound to hold it to be a new assessment. I think this appeal fails upon this ground, and I express no opinion upon the other point raised.

Appeal dismissed.

Solicitors for the appellants: Clarke, Rawlins and Company.

Solicitor for the respondent: Sir H. H. Crawford.

65 J. P. 326.

KING'S BENCH DIVISION.

February 9, 18.

LAMBERT v. MAYOR, ALDERMEN AND BURGESSES OF LOWESTOFT.

Highways-Nuisances-Sewer under highway-Defective condition of sewer-Hole under surface of road-InjuryLiability of sanitary authority apart from negligence-Public Health Act, 1875 (38 & 39 Vict. c. 55), ss. 13, 15, 19. Where an accident causing injury occurs in a highway owing to a latent defect in a sewer underneath the surface of the highway, the sanitary authority, as the authority responsible for the maintenance of the sewers, are not liable, apart from negligence, for the injury so caused. Consequently where there is a sewer underneath the highway and a hole has been caused under the surface of the highway by rats eating through the mortar joints connecting the sewer with a drain, and an excavation is thereby formed under the surface so that a horse passing along the road breaks through the surface and is injured, the sanitary authority, so long as there is no negligence on their part and nothing to warn them of the condition of the sewer, are not liable for the injury upon any alleged ground of having caused or permitted a nuisance on the highway.

Further consideration by Lord Alverstone, C.J., in an action tried before him with a jury at the winter assizes held at Norwich.

The plaintiff carried on business in Norwich as a tea dealer, and the defendants were under the Public Health Acts the urban sanitary authority for the borough of Lowestoft, in the county of Suffolk, and they were also the highway authority.

The plaintiff claimed 767. 38. 6d. as damages for injuries to his horse and for expenses. He alleged in his statement of claim that on the morning of the 11th of July, 1900, his horse was being driven by his servant along a highway in the borough of Lowestoft, known as Cambridge-road, when owing to the improper and defective condition of the highway the horse broke the surface of the road and was injured, and that the defective condition of

LAMBERT v. MAYOR, ALDERMEN AND

BURGESSES OF LOWESTOFT.

the highway was owing to the defendants having so negligently and improperly constructed a sewer therein that the soil of the highway was washed away and the highway undermined at the place where the horse broke through the surface; and in the alternative that the defendants so negligently and improperly constructed the highway where it had been excavated in order to construct or repair a sewer therein that the highway was insufficient to bear the weight of the horse; and, further, in the alternative, that the defendants, knowing that the sewer in the highway and the highway over the sewer were in a defective condition, neglected to repair the same and to reinstate the highway, and that owing to such neglect the highway was insufficient to bear the weight of the horse, and in consequence the horse broke through the surface of the road and was injured.

The defendants pleaded that there was no misfeasance on their part, and that they were not liable for their non-feasance (if any); and that the statement of claim disclosed no cause of action against them.

The facts as proved at the trial were shortly as follows:

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Underneath the highway in question was an old brick sewer, constructed about the year 1863. This sewer ran along the middle of the road and underneath the surface at a depth of some four or five feet. In 1886 the defendants, who were the highway authority as well as the sanitary authority, took over the road, when it was made up and man-holes placed at certain points communicating with the sewer. New gulley-pits were put in to replace the old gulley-pits, and these were connected with the then existing 6-inch drains which had been put in to take surface drainage when the sewer was constructed.

There was a 6-inch drain from the gulley pit to the sewer, and the length of this drain was eight or nine feet. The junction of this drain had been made in mortar and with mortar joints, and at some time rats had eaten through this mortar joint and had formed a hole or excavation under the surface of the road of some 2 feet in diameter.

On the morning of the day in question the plaintiff's horse was being driven along the road, and owing to the excavation

65 J. P. 326. underneath the surface the road gave way under the weight of the horse, and the horse's foot went through the surface into a hole and the horse was injured.

The plaintiff then brought the present action for the injuries to his horse.

The learned judge at the trial held that there was no evidence to go to the jury of any negligence on the part of the defendants, and he withdrew the case from the jury.

The question of the liability of the defendants apart from negligence was then reserved for further consideration.

Witt, K.C., and E. E. Wild, for the plaintiff. -The question now raised is whether the defendants, as the sanitary authority, are liable by reason of the sewer underneath the highway being in such a condition that the road was excavated, and that in consequence it subsided under the weight of the horse. We submit they are liable, and upon the ground that they have caused or are answerable for a nuisance on the highway, and the ground of liability may be stated in these three ways. First, the defendants combine two functions: they are the highway authority and they are the sanitary authority, and as the sanitary authority they are liable for the maintenance of the sewers, and they are liable for a nuisance existing on the highway and arising from the defective condition of the sewer, and they are so liable apart from negligence altogether. Secondly, it is immaterial whether the defendants made the sewer themselves or took it over; as in either case they would be liable under sections 13, 15, and 19 of the Public Health Act, 1875, to maintain and keep the sewers in order, and their obligation in this respect would by section 13 apply to all existing and future sewers. By section 13 all the sewers are vested in and placed under the control of the local authority, and they are bound to keep them in a proper state. (White v. Hindley Local Board, L. R. 10 Q. B. 219; 39 J. P. 533.) Thirdly, the defendants being in the same position as if they had made the sewer, they are liable for a nuisance arising from the sewer, even though there be no negligence on their part. Nuisance is distinct from negligence, though sometimes confounded with it; and in many cases the principle of liability, where it exists, is not negligence but nuisance. If we were dealing with the defendants merely as a highway authority the distinction between an act of

LAMBERT v. MAYOR, ALDERMEN AND

...

case

BURGESSES OF LOWESTOFT. omission and an act of commission might be important; but it is not so important when we are dealing with other authorities. The distinction between cases of misfeasance and non-feasance is clearly shown in the judgment of Lord Herschell, L.C., in Municipal Council of Sydney v. Bourke, [1895] A. C. 433 ; 59 J. P. 659; and the importance of the case rests on the explanation which the Lord Chancellor (Lord Herschell) gives of the judgment in Borough of Bathurst v. Macpher son, 4 App. Cas. 256; 43 J. P. 827. In the former case Lord Herschell, speaking of Borough of Bathurst v. Macpherson, says: (1895) A. C. at p. 441, “The ratio decidendi was that the defendants had caused a nuisance in the highway. . . . The was not treated as one of mere nonfeasance, and indeed it was not so. The defendants had created a nuisance. Having made the drain and failed to keep it in such a condition that the road would not fall into it, they were just as much liable as if they had made the excavation without constructing the drain, and the road had consequently subsided and become founderous." That is precisely applicable here where we say the injury was caused by the defendants having created a nuisance on the highway. Where drains have been merely neglected it may be necessary to prove negligence; but assuming that to be good law it does not affect the present case where it is an act of obstruction and not negligence which is the cause of action. It is the intentional doing, or permitting the doing of the thing which causes the nuisance, which is the ground of liability. The case also of Steel v. Dartford Local Board, 60 L. J. Q. B. 256, is strongly in favour of the plaintiff's contention that the defendants, having caused a nuisance on the highway, are liable. [Lord ALVERSTONE, C.J.-The point to my mind is whether there is a warranty. He referred to Blackmore v. Vestry of Mile-end Old-town, 9 Q. B. D. 451; 47 J. P. 52.]

A. H. Poyser and F. Low for the defendants. If the plaintiff's contention were well founded it would render unnecessary any reference to the many previous decisions on this subject, as it would simply make the local authority insurers. [Lord ALVERSTONE, C.J.-I find as a fact that the hole under the road was caused by a rat, and that the hole was enlarged either by a rat or by the water.]

65 J. P. 326. Dealing with the defendants in their capacity as sanitary authority they are in this position that they are acting under statutory powers, and, acting under their statutory powers, therefore they cannot be guilty of creating a nuisance. If there were negligence it would be a different question; but here there was no negligence, and we submit there can be no nuisance, as they were acting under an Act of Parliament. A public body are bound to carry out their statutory powers without negligence, and if they do so they cannot create a nuisance; for example, fire caused by sparks from a railway engine is not a nuisance. It was for some time thought, as in Municipal Council of Sydney v. Bourke (supra) that the case of Borough of Bathurst v. Macpherson (supra), was an authority for the proposition that nuisance, apart from misfeasance, might create a liability. The dictum of Lord Herschell, apparently to that effect, is wholly unsupported, and it is clear from the judgment of the Privy Council in Municipality of Pictou v. Geldert, [1893] A. C. 524, at p. 531, that that was not the true meaning of the judgment in the Bathurst case. Lord Hobhouse, in delivering judgment in Municipality of Pictou v. Geldert (supra), says: "It is clear to their lordships that the governing fact in the Bathurst case is that the conduct complained of was not in the view of the committee non-feasance, but misfeasance." That case, therefore, is no authority for the proposition that nuisance, apart from misfeasance or negligence, is a cause of action in a case like the present." The real test in all such cases is this: Has there been such a negligent omission by the authority in carrying out their statutory duties under the Act of Parliament as to constitute negligence; that is, negligence in the sense of there being some want of reasonable care. The sanitary authority are bound to take reasonable steps to keep their works in order; and if they do not do so they might be liable, but it would be on the ground of negligence and not on the ground of nuisance. (Thompson v. Mayor, &c., of Brighton; Oliver v. Horsham Local Board, [1894] 1 Q. B. 332; 58 J. P. 297; Fleming v. Corporation of Manchester, 45 J. P. 423, reversed on appeal, but only on the ground that there was no evidence of negligence. (See Times, the 27th of June, 1882; Stretton's Derby Brewery Company y. Mayor, &c., of Derby, [1894] 1 Ch. 431; Bateman v. Poplar District

LAMBERT v. MAYOR, ALDERMEN AND BUR

GESSES OF LOWESTOFT. Board of Works, 37 Ch. D. 272, at p. 279.) There is no case which supports the view that the defendants are liable for a nuisance apart from negligence, or that they, as the sanitary authority, are liable for whatever may happen in consequence of a sewer being under a road, except perhaps the dictum of Lord Herschell in Municipal Council of Sydney v. Bourke (supra).

Witt, K.C., in reply, referred to Bateman v. Poplar Board of Works (supra); Baron v. Portslade Urban District Council, [1900] 2 Q. B. 588; 64 J. P. 675; and to the judg ment of Blackburn, J., in White v. Hindley Local Board (supra).

Cur, adv. vult.

February 18.] Lord ALVERSTONE, C.J., read the following judgment :-In this case the plaintiff brought an action against the Mayor and Corporation of Lowestoft for injuries sustained by a horse while passing along Cambridge-road, Lowestoft, owing to the horse's foot going through the crust of the road into a hole underneath. Running along the middle of the road was an old brick sewer, constructed about the year 1863 by the Ipswich Building Society. The road was taken over by the defendants in the year 1886, when it was made up and manholes placed at certain points communicating with the sewer; the old gulley pits replaced by new and larger ones which were connected with the then existing 6-inch drains, which had been put in to take surface drainage when the sewer was originally constructed. The sewer was at a depth of some four or five feet, and the length of the 6-inch drain from the gulley pit to the sewer was between eight feet and nine feet. It was proved before me, and I find as a fact, that the junction of the 6-inch drain with the sewer had been made in mortar, and that at some time rats had eaten or worked through the mortar of the joint, and had subsequently made a hole of about two feet in diameter underneath the surface of the road. The crown of the road had given in under the weight of the horse, thereby causing the injury. After the accident the road was repaired by the defendants and the joint made good in cement. It was proved before me, and I find as a fact, that it was the common practice in the year 1863, and for some years afterwards, for sewers to be made in the way in which this sewer

65 J. P. 326.

was constructed, namely, with mortar and with mortar joints for the connecting drains. Nothing had occurred to give the defendants warning that there was anything wrong with the sewer and drains or with the road. A previous subsidence in the road, which was suggested as having been brought to the notice of the defendants some years before the accident, was proved at the trial to be in no way connected with, and I find that it was not connected with, either the sewer or the connecting drains. I held at the trial, and still hold, that there was no evidence to go to the jury of any negligence on the part of the defendants which caused or contributed to the accident. I therefore discharged the jury, the counsel on both sides agreeing that the court, or if necessary the Court of Appeal, should have the power to draw any inference of fact necessary to decide the case. Upon further consideration before me counsel for the plaintiff did not rely upon negligence, nor was any argument addressed to me to show that I was wrong in holding that there was no evidence of negligence to go to the jury, but the plaintiff sought to recover on the ground that the existence of a hole under the road caused by a defect in the sewer constituted a nuisance, and that the defendants, as the authority responsible for the maintenance of the sewers, were liable apart from negligence. In my opinion this contention cannot be successfully maintained. The responsibility of the defendants to maintain the sewers rests upon sections 13, 15, and 19 of the Public Health Act, 1875. In fulfilling these duties they are acting under statutory authority, and it is now clearly established that under ordinary circumstances no action lies for injury occasioned by the execution of statutory duty unless it has been negligently performed. (Geddis v. Proprietors of Bann Reservoir, 3 App. Cas., at p. 455; Bateman v. Poplar District Board of Works (supra); Thompson v. Mayor, &c., of Brighton (supra); Stretton's Derby Brewery Company v. Mayor &c., of Derby (supra), and many other cases.) It was, however, argued that if the condition of the sewer which had been taken over by and vested in the defendants did in fact cause a nuisance, the plaintiff could recover apart from negligence. In support of this view the case of Borough of Bathurst v. Macpherson (supra), and particularly the language of the Lord Chancellor in Sydney

LAMBERT v. MAYOR, ALDERMEN and Bur

GESSES OF LOWESTOFT.

Municipal Council v. Bourke (supra), explaining that case, was relied upon. I am clearly of opinion that neither of these cases is sufficient to support the argument of the plaintiff. In Borough of Bathurst v. Macpherson (supra), not only might the plaintiff have recovered upon the ground of negligence, but, as pointed out by the Lord Chancellor in Sydney Municipal Council v. Bourke (supra), the defective drain had caused the road to become dangerous, and no steps had been taken by the defendants in that case to prevent accidents, although they were well aware of the condition of the road. Their lordships in the case of Borough of Bathurst v. Macpherson (supra) found that the appellants had caused a nuisance in the highway by the construction of the drain and by their neglect to repair it, and by leaving a dangerous hole open and unfenced. In my opinion the expressions of the Lord Chancellor at p. 441, [1895] A. C., upon which great reliance was placed by counsel for the plaintiff, must be construed with reference to the subject-matter under discussion, and were not intended to lay down a general rule that simply because an accident has occurred in a road due to a latent defect in a sewer, the defendants, whose duty it is to maintain the sewer, are liable apart from negligence. I find that in this case there was nothing to warn the defendants that there was anything wrong with the sewer, nor could they by the exercise of any reasonable care have discovered the existence of the hole under the road until the accident happened. I therefore dismiss the action and give judgment for the defendants with costs.

Judgment for the defendants. Solicitor for the plaintiff Charles F. Martelli, for T. C. Rackham, Norwich.

:

Solicitors for the defendants: Sharpe, Parker and Company, for R. B. Nicholson, town clerk, Lowestoft.

65 J. P. 340.

COURT OF APPEAL.

February 15.

PHARMACEUTICAL SOCIETY v. WHITE.

Pharmacy Acts-Sale of poisons-SellerPharmacy Act, 1868 (31 & 32 Vict. c. 121), s. 15.

The defendant, who kept a florist's shop, took orders for a weed-killer containing poison from any person coming to his shop, received the price, and gave receipts for it. He did not keep the weed-killer in stock, but sent the orders to the manufacturers, who despatched it direct to the purchasers and allowed the defendant 25 per cent. commission.

In an action in a county court to recover a penalty under section 15 of the Pharmacy Act, 1868, the county court judge found as a fact that there was no contract of sale between the defendant and a purchaser o the weed-killer, but that the defendant acted as agent for the manufacturers, and was not the "seller" within the meaning of the Act.

Held (affirming the decision of the High Court

of Justice, Queen's Bench Division, reported 64 J. P. 168), that as the county court judge had found as a fact that the defendant was not the seller, and as there was evidence to support that finding the court was bound thereby, and that upon that finding the defendant was not the seller of the weed-killer within the meaning of sec. tion 15 of the Pharmacy Act, 1868.

Appeal of plaintiffs from the judgment of the High Court of Justice, Queen's Bench Division (Grantham and Channell, JJ.).

The action was brought under section 15 of the Pharmacy Act, 1868 (31 & 32 Vict. c. 121) to recover a penalty from the defendant White for selling a two-gallon drum of a certain weed-killer, which it was admitted was a poison within the section, he not being a duly registered pharmaceutical chemist or chemist and druggist. The following facts appeared from the notes of the county court judge:-The defendant kept a florist's shop at Worcester, and was

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