works.

Execution of have proceeded with a proper degree of moderation; they did not proceed so as to give that right of appeal to the justices, or even that intervention in the first instance of a justice, which is authorized by the Act. The proceedings of the defendants sought to be restrained are wholly arbitrary, and have been so conducted by them as to exclude the intervention of any other opinion than their own, and that of their own officers, to guide them in the exercise of those enormous statutory powers which are inconsistent with the ordinary common law right of every Englishman. And again, he said, it is not reasonable that the defendants should be allowed to proceed in such a manner as to deprive the plaintiff of the means of having his legal rights adjudicated upon by a proper legal tribunal. Without entering more minutely into the evidence on both sides, it is sufficient to say, that, upon the whole, there seems enough proved on the part of the plaintiff to show that he has a right to the interven tion of a proper legal tribunal to adjudicate upon the question between himself and the defendants as to the legality of their proceedings, and the nature of the works which must be done. It is not consistent with the doctrine of the Court of Chancery that, when questions of that kind are to be determined, the defendants should be allowed to decide the question in their own favour, and put in force violently those powers conferred by the Act, till that which seems the proper legal tribunal shall have decided that the case is one to justify the exercise of those extraordinary powers. The order, therefore, went for an injunction according to the prayer of the bill filed by the plaintiff until answer or further order; the plaintiff undertaking to proceed without delay to construct at his own expense proper and sufficient works and conveniences on the premises, so as not to be objectionable as a nuisance or liable to removal under any proceedings before justices, under the 12th, 13th, and 14th sections of the 18 & 19 Vict. c. 121, with liberty to either party to apply as they may be advised. (1) This order having been appealed against, it was confirmed by the Lords Justices of Appeal (Knight Bruce and Turner) with costs; their lordships holding, that, assuming that a district Board has jurisdiction under the 18 & 19 Vict. c. 121, to order water-closets to be provided instead of privies in particular cases where such an alteration may be required, yet the Board is bound to exercise its discretion in each particular instance, and is not competent to lay down any general rule requiring that in all cases waterclosets shall be provided in the place of privies: and that the jurisdiction of the Court of Chancery to interfere by injunction was not ousted by the 211th section of the 18 & 19 Vict. c. 121, giving an appeal to the Metropolitan Board of Works. The order, therefore, was illegal and bad. (2)

(1) 21 J. P. 757.

(2) Tinkler v. Wandsworth, 27 L. J. Ch. 342; 2 De G. & J. 261; 4 Jur. (N. S.) 293.

The question as to the extent in this respect of the powers Execution of of the local authority in the metropolis is now, however, settled works. by a more recent decision. The Metropolis Local Management Act, s. 81, enacts, "that if it appear to the vestry or district Board that any house is without a sufficient watercloset or privy and ashpit, they may require the owner or Occupier to provide a sufficient water-closet or privy and ashpit, or either of them, as the case may require ;" and the Court of Queen's Bench have held that the section authorizes the vestry or district Board to require a water-closet to be provided for premises in lieu of a privy already existing thereon. (1)

$7. AUTHORITY TO NUISANCE AUTHORITIES IN METROPOLIS TO PROVIDE HOSPITALS FOR THE SICK.

In the metropolis the nuisance authority, and in a Local Power to Board of Health district the Local Board, may provide for the nuisance use of the inhabitants within its district hospitals or temporary authority places for the reception of the sick. to provide Such authority may itself build such hospitals or places of the metrohospitals in reception, or make contracts for the use of any existing hospital polis. or part of a hospital, or for the temporary use of any place for 29 & 30 Vict. the reception of the sick. It may enter into any agreement with any person or body of persons having the management of any hospital for the reception of the sick inhabitants of its district, on payment by the authority or Board of such annual or other sum as may be agreed upon.

Two or more authorities having respectively the power to provide separate hospitals may combine in providing a common hospital, and all expenses incurred by such authorities in providing such hospital shall be deemed to be expenses incurred by them respectively in carrying into effect the purposes of

this Act.

c. 90, s. 37. 30 & 31 Vict. c. 113, s. 16.

C. 115, s. 10.

The sewer authority, or in the metropolis the nuisance Supply of authority, shall have the like power to make provision for the medicine, etc. temporary supply of medicine and medical assistance for the 31 & 32 Vict. poorer inhabitants as it now has to provide hospitals or temporary places for the reception of the sick under the Sanitary Act, 1866, s. 37, but such power to make provision for the temporary supply of medicine and medical assistance shall not be exercised without the sanction of the Local Government Board.

In the ninth report of the medical officer of the Privy Council, it is stated (page 25) that "during August and September (1866) numerous applications were made by local

(1) St. Luke, Middlesex, apps., Lewis, resp., 5 L. T. (N. s.) 608; 31 L. J. M. C. 73; 8 Jur. (N. S.) 432.

Supply of medicine, etc. 31 & 32 Vict.

C. 115, S. 10.

authorities to the War Office for the loan of hospital tents and ambulances for the use of persons suffering from cholera. As the Sanitary Act, 1866, which was passed on August 7th, 1866, gives power to metropolitan Boards and vestries, and in the country to sewer authorities (see post, p. 577), to provide temporary hospitals, these applications were not indiscriminately entertained; but whenever exceptional circumstances existed (such as those of some places during hop-picking), the War Office upon their Lordships' recommendation granted the required accommodation subject to the price or hire of the tents and ambulances being paid."

Further with reference to hospital accommodation, see the Memorandum of the Medical Department of the Privy Council, dated August 1871, and the plans for a temporary hospital thereto annexed.

515

CHAPTER II.

§ 1. PROCEDURE BEFORE JUSTICES.

WHERE in the manner mentioned in the preceding chapter, Proceedings a nuisance is ascertained by the local authority to exist, or before where the nuisance, in their opinion, did exist at the time when justices. the notice was given, and although it has since been removed or c. 121, s. 12. 18 & 19 Vict. discontinued, it is in their opinion likely to recur, or to be repeated on the same premises, or on any part of such premises, they shall cause complaint thereof to be made before a justice Complaint. of the peace. The justice is thereupon to issue a summons re--Summons. quiring the persons by whose act, default, permission, or suffer- Sch. D. ance, the nuisance arises or continues, or if such person cannot be found or ascertained, the owner or occupier of the premises on which the nuisance arises, to appear before any two justices petty sessions, who shall proceed to inquire into the com

in

plaint. If it be proved to their satisfaction that the nuisance Order of exists or did exist at the time when the notice was given, or if justices. removed or discontinued since the notice was given, that it is Ib. likely to recur or be repeated, the justices shall make an order in writing under their hands and seals on such person, Ib. Sch. E. owner, or occupier, for the abatement or discontinuance and prohibition of the nuisance, and shall also make an order for the payment of all costs incurred up to the time of hearing or making the order. (1)

A notice under sect. 11 of 18 and 19 Vict. c. 121 (ante, p. 509), is not necessary to found jurisdiction under sect. 12. (2)

chief officer

29 & 30 Vict.

But by the Sanitary Act, 1866, the nuisance authority or As to prochief officer of police (see ante p. 496) shall, previous to taking ceedings by proceedings before a justice under 18 & 19 Vict. c. 121, S. 12, of police. serve a notice on the person by whose act, default, or sufferance the nuisance arises or continues, or, if such person cannot be c. 90, s. 21. found or ascertained, on the owner or occupier of the premises on which the nuisance arises, to abate the same, and for that purpose to execute such works and to do all such things as may be necessary within a time to be specified in the notice: provided,

First, that where the nuisance arises from the want or defective construction of any structural convenience, or where there is no occupier of the premises, notice under the sec

tion shall be served on the owner:

(1) See Isle of Wight Ferry Company, apps., Ryde Commissioners, resps., ante, p. 498.

(2) Amys, app., Creed, resp., 38 L. J. M. C. 22.

Proceedings
by chief

officer of
police.
29 & 30 Vict.

c. 90, s. 21.

Jurisdiction of justices.

Secondly, that where the person causing the nuisance camot be found, and it is clear that the nuisance does not arise or continue by the act, default, or sufferance of the owner or occupier of the premises, then the nuisance authority may itself abate the same without further order, and the cost of so doing shall be part of the costs of executing the Nuisances Removal Acts, and borne accordingly.

The Court of Queen's Bench have held that a notice is not necessary under 29 & 30 Vict. c. 90, s. 21 before laying a complaint by an inhabitant under 23 & 24 Vict. c. 77, s. 13. (1)

By the Sanitary Act, 1866, s. 48, any nuisance authority may appear before any justice or justices, or in any legal proceed ings, by its clerk, or by any officer or member authorized generally, or in respect of any special proceeding by resolution of the authority, and such person being so authorized shall be at liberty to institute and carry on any proceedings which the nuisance authority is authorized to institute and carry on under the Nuisances Removal Acts or the Sanitary Act, 1866.

The above provision removes the difficulty in AttorneyGeneral v. Richmond, (2) in which it was held that the clause in the Public Health Act directing the Local Board to be sued in the name of their clerk does not extend to a "local authority" under the Nuisances Removal Acts.

The jurisdiction of the justices under the Nuisances Removal Act will not arise if the nuisance is only consequential to an act done by persons in another jurisdiction; therefore where in a parish having a local authority acting under the 18 & 19 Vict. C. 121, there was a nuisance in a stream of water occasioned by the acts of certain persons in an adjoining parish not within the limits of the local area of the local authority, it was held that the local authority had no powers under the Act to proceed summarily against the person causing the nuisance, for the justices have no summary jurisdiction under the statute for the removal and prevention of nuisances, unless the cause of the nuisance and its effect are within the area of the local authority. (3) And it may be added that the 12th section of the 18 & 19 Vict. c. 121, applies to all nuisances caused by the acts of an individual, and which that individual has the power to remove in the manner contemplated by the Act. (4)

A. was the owner of property on which certain cesspools existed, which contained the sewage from several houses also his property. This sewage, together with the sewage of houses belonging to other persons, flowed over the cesspools in rainy weather and passed through pipes, laid under the highway, into an open ditch on a field belonging to B., where the first sewage

(1) Cocker, app., Cardwell, resp., L. R. 5 Q. B. 15; 34 J. P. 516; 21 L. T. (N. S.) 457; 39 L. J. M. C. 38. (2) 12 Jur. (N. S.) 544.

(3) Reg. v. Cotton, 1 E. & E. 203; 28 L. J. M. C. 22; 5 Jur. (N. S.) 311; 32 L. T. 125.

(4) Reg. v. Gee, 33 L. T. 181.