Court in making the rule absolute said that the duty to make For what compensation is clear, unless the primâ facie case be answered, damage. and that it must be complied with. It is the duty, the Court said, of the Local Board to administer the funds entrusted to them with a careful regard to the interests of the ratepayers, and it would be much to be deplored if the Local Board were in this case to persist in trying by the process of a mandamus a question which might be more cheaply determined. The counsel for such a body ought not to be here in such a case without authority to consent to such a course as the Court might recommend. Members of a Local Board are not personally liable to compensate a person for damage occasioned to him by their carelessness or want of due regard in the performance of their duty under the Act; but they are liable in this respect as a public body, and are entitled to reimburse themselves out of the funds over which they have control. Where, however, a member of the Board does something not within the scope of his authority as a member, it would seem that the Board as a body are not liable, but that personal liability would attach to the particular member in respect of the act done. (1) On this point see also Hall v. Taylor. (2) A Local Board being under 11 & 12 Vict. c. 63, s. 117, surveyors of highways are liable to an action at the suit of a person who when passing along the highway is injured by reason of the servants of the Board negligently leaving a heap of stones upon the highway. (3) But nevertheless a Local Board of Health are in the same position with respect to actions for non-repair of a highway, as the inhabitants of the parish or surveyor of highways, and therefore an action against them will not lie for damage occasioned by the non-repair of a highway. (4) By statute 18 & 19 Vict. c. 120, s. 96, vestries and district Boards in the metropolis are required to execute the office of surveyors of highways within their parishes and districts; and if they duly execute the same, not personally interfering, they are not liable to a passenger for an injury caused to him by a heap of paving stones having been negligently left on the road by the workmen employed by the acting surveyor. (5) Where the owner of a house in the metropolis employed a contractor to make a drain from his house to the main sewer under the powers given by the 18 & 19 Vict. c. 120, SS. 77, 110, and the contractor made the drain, but filled up the ground so negligently where it crossed a public footway that it sub (1) Ruck v. Williams, 3 H. & N. 308. (2) 23 J. P. 20. (3) Foreman v. Canterbury, 40 L. J. Q. B. 138. (4) Gibson v. Preston (Mayor, &c., of), 22 L. T. (N. S.) 293; L. R. 5 (5) Holliday V. St. Leonard, For what damage. sided and left a hole, into which a person fell and was injured, it was held by the Court of Exchequer Chamber, reversing the judgment of the Court of Queen's Bench, (1) that the owner was liable for the injury; as he was bound to do the work properly, and was not excused by reason of his having employed to perform the work a contractor who omitted to do his duty. (2) Under the same Act it has been held that the mere temporary obstruction of access to premises, though it may cost some inconvenience and loss of business to the occupier, is not a "damage" in respect of which he is entitled to claim compen sation under ss. 135, 225. (3) The following further illustrates the liability of public functionaries to compensate for damage caused by the execution of their statutory powers. Commissioners acting under the Towns Improvement Clauses Act, 1847, are liable to an action, in their corporate capacity, at the suit of a person who has suffered damage from a highway, within the limits of the Commissioners' Special Act, being allowed by them to remain in a dangerous condition. Per Blackburn, J., the Act casts on the Commissioners the duty of repairing the highway, and renders them indictable if they do not (sect. 49). In such an action it is not necessary to aver in the declaration that the Commissioners had funds. (4) If the Metropolitan Board of Works, in the exercise of the statutory powers given them, do an act, without exercising due care and skill, which causes injury, they will be liable to an action, although compensation is given by way of proceeding before justices by sects. 135 and 225 of the 18 & 19 Vict. c. 120, for damage done by acts done with due care, within the powers of the Act. (5) A private injury arising from a public nuisance is the subjectmatter of an action for damages. The true test of liability in such a case is whether an excavation whereby it was caused be substantially adjoining the public way, over which the public have a right to go, and this principle applies to an action brought under the 9 & 10 Vict. c. 93. The occupier of land is bound to fence off any hole or area upon which it adjoins, or is so close to a public way that it may be dangerous to passers-by if left unguarded, and he is prima facie liable for any damage that may arise by neglecting to fence. (6) Where under an Act the amount of any damage, costs or (1) Gray v. Pullen, 8 L. T. (N. S.) (3) Herring, app., v. The Metro- (4) Hartnell v. Ryde Commis sioners, 33 L. J. Q. B. 39; 8 L. T. (N. S.) 574. (5) Clothier v. Webster, 12 C. B. (N. S.) 790; 9 Jur. (N. S.) 231; 31 L. J. C. P. 316; 6 L. T. (N. S.) 461. (6) Barnes v. Ward, 2 C. & K. 661 expenses is directed to be ascertained or recovered in a sum- For what mary manner, or the amount of damages, costs, or expenses damage. directed to be paid, and the method of ascertaining the amount or enforcing the payment is not provided for, it shall, in case of dispute, be ascertained and determined before two justices, that remedy is exclusive, and therefore an action will not lie against an owner for the amount of the expenses. (1) A contractor under the Metropolitan Board of Works having completed a sewer beneath a public highway and filled up the excavation in a reasonably proper manner, was held not liable for damage in consequence of a subsidence of the road which took place two or three months afterwards, causing a hole into which a horse and cart ran in the night and suffered damage. (2) (1) St. Pancras Vestry v. Batterbury, 2 C. B. (N. S.) 477; 26 L. J. C. P. 243; 3 Jur. (N. S.) 1106. (2) Hyams v. Webster, 16 L. T. (N. S.) 118; 36 L. J. Q. B. 166. CHAPTER VI. ARBITRATION. ALL questions referable to arbitration under the Acts may, when the amount in dispute is less than £20, be determined before two justices in a summary manner; but the justices may, if they think fit, require that the work in respect of which the claim of the Local Board is made, and the particulars of the claim, be reported on to them by any competent surveyor, not being the surveyor of the Local Board; and they may determine the amount of costs incurred on that behalf, and by whom they or any part of them are to be paid. In case of dispute as to the amount of any compensation to be made under the provisions of the Act (except where the mode of determining it is specially provided for), and in case of anything which the Act authorizes or directs to be settled by arbitration, unless both parties concur in the appointment of a single arbitrator, each, on the request of the other, is to appoint an arbitrator. Every appointment of an arbitrator, when made on the behalf of the Local Board, must, in the case of a non-corporate district, be under their seal and the hands of any five or more of their number, or under the common seal in case of a corporate district, and on the behalf of any other person under his hand, or in the case of a corporation aggregate under their common seal. The appointment is to be delivered to the arbitrators, and is to be deemed a submission to arbitration by the parties making it, and it cannot afterwards be revoked without the consent of both parties, nor shall the death of either party operate as a revocation. If, for the space of fourteen days after any dispute shall have arisen, and notice in writing by one party, who has himself duly appointed an arbitrator, to the other, stating the matter to be referred, and accompanied by a copy of the appointment, the party to whom notice is given fail to appoint an arbitrator, the arbitrator ap pointed by the party giving the notice is to be deemed to be appointed by and is to act on behalf of both parties. The award of any arbitrator or arbitrators appointed in pursuance of these provisions is binding, final, and conclusive upon all persons. The power of the arbitrator under sect. 123 is limited to an inquiry into the apportionment of expenses amongst several owners of property liable to contribute under 11 & 12 Vict. c. 63, s. 69, ante, page 168, and he is not entitled to inquire whether the gross amount of the expenditure was reasonable or necessary; Wills, J., dubitante, however. (1) c. 63, s. 123. If a covenant be made with a man to do particular acts, and Reference it is also covenanted that any question which may arise as to to arbitration. the breach of the covenant shall be referred to arbitration, the II & 12 Vict. latter covenant does not prevent the covenantee from bringing an action; for in that case a right of action would have accrued, and it is against the policy of the law to give effect to such an agreement that such a right should not be enforced through the medium of the ordinary tribunals. (2) Therefore a general agreement in a contract to refer matters in dispute to arbitration does not oust the jurisdiction of the Courts. (3) Moreover there is no equitable construction of an agreement distinct from its legal construction; therefore if parties to an agreement provide for the settlement of disputes arising out of the contract by the arbitration of persons mentioned in the agreement, or to be determined when the dispute arises, this does not oust the ordinary tribunals of jurisdiction in such disputes. But if the contract provides for the determination of the contractor's claims and liabilities by the judgment of a particular person, everything depends on his decision, and until he has spoken no right arises which can be enforced either at law or in equity. (4) So if a contract provides for the determination of it by the employer in default of the contractor making due progress with the works and using due diligence in the opinion of the employer's architects, the decision of such architects on the point is final between the parties. (5) The 123rd section of the 11 & 12 Vict. c. 63, cannot be distinguished from sect. 25 of the Lands Clauses Act; and a person who is damaged by the works executed under the Public Health Act is entitled to have the amount of compensation ascertained by arbitration under the 123rd section of the former Act. (6) several If before the determination of any matter referred to arbi- Death, etc., tration any arbitrator die, or refuse or become incapable to of one of act, the party by whom the arbitrator was appointed may arbitrators. appoint in writing another person in his stead; and if he fail so Ib. s. 124. to do for the space of seven days after notice in writing from the other party, the remaining arbitrator may proceed ex parte. Every arbitrator appointed in the room of one dying, refusing, or becoming incapable to act, has the same powers and autho (1) Bayley, app., Wilkinson, resp., 16 C. B. (N. S.) 161; 10 L. T. (N. S.) 543 33 L. J. M. C. 161; 10 Jur. (N. S.) 726. See also Cook v. Ipswich, 24 L. T. (N. S.) 579. (2) Thompson v. Charnock, 8 T. R. 139. 105. (4) Scott v. The Liverpool Corporation, 28 L. J. Ch. 230. (5) Roberts v. Bury Improvement Commissioners, 21 L. T. (N. s.) 173. (6) Bradford v. Hopwood, 22 J. P. 561. |