be

103. The expenses incurred by the metropolitan board of works in applying for and passing this Act, and preparatory or incident thereto, shall be and are hereby included among the general expenses of the said board in the execution of the firstly-recited Act, and may defrayed accordingly; and the expenses incurred by any vestry or district board in relation to this Act shall be and are hereby included among the other expenses incurred by that vestry or district board in the execution of the firstly-recited Act, and may be defrayed accordingly.

Section 103.

Expenses of obtaining this Act to be included among

general expenses of executing Acts.

Provision as to penalties

under 227th section of 18

104 The provisions in the two hundred and twenty-seventh section of the firstly-recited Act for the recovery of penalties and forfeitures imposed by the said Act is hereby extended to any damages, costs, or expenses payable or recoverable under the said recited Acts or this Act; and any such damages, costs, or expenses, the recovery 120, extended whereof is not otherwise provided for, may be recovered by summary to damages, proceedings in manner directed by the said section (d).

& 19 Vict. c.

&c.

105. The two hundred and thirty-fourth section of the firstly- Application recited Act is hereby repealed; and in lieu thereof be it enacted, of penalties that all penalties or forfeitures payable or recoverable under the (e). firstly-recited Act or this Act, and all penalties or forfeitures recovered by any vestry or district board acting as the local authority for the execution within their respective parish or district of "The Nuis

that where upon summary conviction any offender may be adjudged to pay a penalty not exceeding £5, such offender may, without any warrant of distress, be committed to prison for any term not exceeding the period specified in the scale given in the Act, unless the penalty shall be sooner paid; and the Act applies to penalties, including costs recoverable in a summary manner, in pursuance of any Act of parliament, whether passed before or after its commencement.

(d) Where a local board had the option of recovering the expenses of sewering and paving a private street, either in the county court or by a summary proceeding before justices, it was held that the six months' limitation in Jervis' Act applied to both proceedings; Tottenham Local Board of Health v. Rowell, L. R. 1 Ex. D. C. A. 514.

(e) The 234th section of 18 & 19 Vict. c. 120 (hereby repealed), provided that all sums which might be recovered by any vestry on account of any penalty, should be applicable to their general expenses; but by section 47 of 2 & 3 Vict. c. 71 (Metropolitan Police), it was enacted that where by any Act or Acts any penalties, &c., were or should thereafter be made recoverable in a summary manner before any justice, &c., and by such Act or Acts the same should be made payable to Her Majesty, or to any body corporate, or to any person or persons whomsoever, save the informer, &c., or any party aggrieved, the same, if recovered before any of the metropolitan police magistrates, should be adjudged to be paid to the receiver of the metropolitan police district. It was held under the 17 & 18 Vict. c. 38 (Suppression of Gaming Houses), that where a conviction took place under that Act at a metropolitan police court, the receiver of the metropolitan police district was entitled to one half of the penalty directed by the Act to be applied in aid of the poor rates; Wray v. Ellis, 28 L. J. M. C. 45. The section as now framed is intended to secure the penalty to those bodies whose property has been injured by the offence, including the metropolitan board, who were not within the repealed enactment. See Receiver of Metropolitan Police v. Bell, L. R. 7 Q. B. 433, as to what penalties recovered before two justices were held not payable to the receiver, and as to disability of a corporation to sue for penalties as a common informer unless expressly empowered by statute; Guardians of St. Leonard's Shoreditch v. Franklin, L. R. 3 C. P. D. 377.

Section 105. ances Removal Act, for England, 1855" (a), shall go and be paid in manner hereafter mentioned, anything contained in an Act made and passed in the session holden in the second and third years of the reign of Her present Majesty, chapter seventy-one, or in any other Act or Acts to the contrary notwithstanding; that is to say, one half shall go to the informer, and the remainder shall go to the vestry or district board of the parish or district in which the offence was committed, or to the metropolitan board of works, in case the injury shall have been sustained by or the offence committed in respect of that board; or if such vestry or district board or the metropolitan board of works be the informers, then the whole of the penalty recovered shall go to them respectively, and all sums which shall go to or be recovered by any board or vestry on account of any penalty or forfeiture shall be paid to their treasurer, or into such bank to their account as they may direct, and shall be applicable towards the general expenses of such board or vestry; provided that in every case where any board or vestry are liable to any penalty or forfeiture, the whole of such penalty or forfeiture shall go to the informer.

Notice of

106. No writ or process shall be sued out against or served upon, action, &c. (b). and no proceeding shall be instituted against the metropolitan board of works, or any vestry or district board, or their clerk, or any clerks, surveyor, contractor, officer, or person whomsoever, acting under their or any of their directions, for anything done or intended to be done under the powers of such board or vestry under the said Acts or this Act (c), until the expiration of one calendar

(a) See 18 & 19 Vict. c. 121, s. 38, post, Appendix.

(6) This section is founded on the 127th section of the Metropolitan Sewers Act, 1848, 11 & 12 Vict. c. 112, but in addition to the words "writ or process shall be sued out," it uses the words "no proceeding shall be nstituted."

(c) An omission to do something to be done for the complete performance of a duty imposed on a public body by statute, or continuing to leave such duty unperformed, amounts to an Act done or intended to be done within the meaning of section 139 of the Public Health Act, 1848; Jolliffe v. Wallasey Local Board, L. R. 9 C. P. 62.

Where an inspector was ordered by a district board of works within the metropolis to erect a urinal, and he authorized another person to perform the work, the latter, as well as the inspector, was held entitled to notice of action; Chambers v. Reid, 30 J. P. 231; 13 L. T. (N.S.) 703.

A contractor under the metropolitan commission of sewers who, in enlarging a sewer, neglected to pump the sewage, thereby flooding the plaintiff's premises, was held entitled to notice of action; Poulsum v. Thirst, 36 L. J. C. P. 225; L. R. 2 C. P. 449.

A person who contracted with a local board of health to dig wells under the direction of their surveyor, and caused damage by leaving a hole without a light at night, was held entitled to notice of action under section 264 of Public Health Act, 1875; Newton v. Ellis, 24 L. J. Q. B. 337; 5 E. & B. 115.

A local board sued for negligence in not protecting a footpath from a goit, was held entitled to notice of action; Wilson v. Corporation of Halifax, 37 L. J. Ex. 44; L. R. 3 Ex. 114, and similarly in case of accident from a defective bridge; Holland v. Nantwich Highway Board, 34 L. T. 137.

Although a rate made by defendants as surveyors of highways was bad, the defendants were held entitled under section 109 of the General High

month (d) next after notice in writing shall have been served upon such Section 106. board or vestry, or where the action or proceeding shall be against such officer or other person acting under their or any of their directions shall have been delivered to him or left at his office or place of abode, stating the cause of action or grounds of the proceeding or demand, and the name and place of abode of the intended plaintiff or claimant and of his attorney or agent in the cause or proceeding; and upon the trial of any action the plaintiff shall not be permitted to go into evidence of any cause or action except such as is stated in the notice so served or delivered, and unless such notice be proved the jury shall find for the defendant; and every such action and proceeding Limitation. shall be brought or commenced within six months (e) next after the

way Act to notice of an action brought to recover the money paid; Selmes v. Judge, L. R. 6 Q. B. 724.

In order to entitle a party to notice of action for a thing done, "in pursuance of" or "in the execution of" an Act of parliament, it is not necessary that he should at the time of doing the act be cognisant of the existence of the statute giving him such protection, or that he should be acting strictly in the execution of it; Read v. Coker, 13 C. B. 850.

A letter of plaintiff's attorney claiming compensation, is not sufficient notice; Mason v. Birkenhead Improvement Commissioners, 29 L. J. Ex. 407. Where the servant of the defendant, a contractor under a metropolitan district board of works, left a horse unattended which ran away causing damage; held, that this was not "a thing done, &c." under the powers f the board requiring notice of action; Whatman v. Pearson, L. R. 3 C. P. 422.

A person who, being called upon by the metropolitan board to make a drain to his premises, committed a trespass, was held not entitled to notice of action; Doust v. Slater, 38 L. J. Q. B. 159.

No notice is required where the action is for the breach of a contract; Davies v. Corporation of Swansea, 8 Ex. 808.

In an action against defendant for negligently performing work, it was held that defendant did not come within the words "other person" in the 18th section of Metropolis Building Act, 1855, and was not entitled to notice of action; Williams v. Golding, 35 L. J. C. P. 1.

(d) Under an Act requiring one calendar month's notice of action, a notice having been given on the 28th of a month, it was held that an action might be commenced on the 29th of the following month whatever the length of the preceding month; Freeman v. Read, 32 L. J. Q. B. 322.

The provision in this section does not affect the rights of a riparian owner whose stream is being polluted by the works of a district board, to summary relief by information; Attorney-General v. Hackney District Board, L. R. 20 Eq. 626.

In a proceeding to restrain a nuisance by a local sanitary authority by drainage into an open watercourse, the notice prescribed by the Public Health Act, 1875, is not necessary; Baker v. Corporation of Wisbeach, L. R. W. N. (1877), p. 56; the jurisdiction granting summary relief by injunction is not altered by the Judicature Act; Ibid.

A month's notice of action under the Public Health Act, 1875, is not necessary where the principal object of the action is an injunction to restrain immediate injury. Where plaintiff's case showed compensation for damage to be the principal object, notice of action is necessary; Flower v. Local Board of Low Leighton, L. R. 5 Ch. Div. (c. A.) 347.

(e) It is not necessary that a notice of claim and demand for arbitration for damage done to a building should be made within six months' after the occurrence of the damage; Delany v. Metropolitan Board of Works, L. R. 2 C. P. 532; 3 C. P. (Ex. Ch.) 111.

And as to when cause of action arises, see Bonomi v. Backhouse, 28 L. J. Q. B. 378; Whitehouse v. Fellowes, 10 C. B. (N. s.) 765.

Tender of amends.

Section 106. accrual of the cause of action or ground of claim or demand, and not afterwards, and every such action shall be laid and tried in the Venue. county or place where the cause of action accrued (a), and not elseGeneral issue. where; and the defendant shall in any such action be at liberty to plead the general issue, and give the said recited Acts and this Act and all special matter in evidence thereunder; and it shall be lawful for the board or vestry, or any person to whom such notice is given as aforesaid, to tender amends to the plaintiff, his attorney or agent, at any time within one calendar month after service of such notice, and in case the same be not accepted to plead such tender in bar, and (by leave of the court) with the general issue or other plea or pleas; 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 judg ment accordingly; and in case the amends tendered be insufficient, it shall be lawful for the defendant, by leave of the court, at any time before trial, to pay into court under plea such sum of money as he may think proper, and (by the like leave) to plead the general issue or other plea or pleas, any rule of court or practice to the contrary notwithstanding.

Penalties to be proceeded for within six

months (b).

107. The two hundred and thirty-third section of the firstly-recited Act is hereby repealed; and in lieu thereof be it enacted, that no person shall be liable for the payment of any penalty or forfeiture under the recited Acts or this Act, or any bye-law made by virtue thereof, for any offence made cognizable before a justice, unless the complaint respecting such offence have been made before such justice within six months next after the commission or discovery of such offence.

(a) An enactment in similar terms in the 11 & 12 Vic. c. 63, was decided not to deprive a court or judge of their common law power to change the venue if the ends of justice required it; Itchin Bridge Company v. Southampton Local Board, 8 E. & B. 803.

See now Supreme Court of Judicature Act, 1875, order 36, rule 1, enacting that there shall be no local venue for the trial of any action, but when the plaintiff proposes to have the action tried elsewhere than in Middlesex, he shall in his statement of claim name the county or place in which he proposes that the action shall be tried, and the action shall, unless a judge otherwise orders, be tried in the county or place so named.

(b) There was a contradiction betwen the text of the repealed section and the marginal note, the former mentioning three, and the latter six months, as the period within which the complaint must have been made.

Where a local Act empowered justices to make an order for the demolition of a building erected contrary to the directions of a corporation, it was decided that the complaint must have been made within six months from the completion of the building, as required by the 11th section of 11 & 12 Vict. c. 43; Morant v. Taylor, 45 L. J. M. Č. 78; L. R. 1 Ex. Div. (C.A.) 188. But in Vestry of Bermondsey v. Johnson, L. R. 8 C. P. 441, it was held that this limitation did not apply to an offence under section 76 of the Metropolis Management Act, 1855, which only relates to pecuniary penalties or forfeitures; and for encroaching on a highway by a building or fence, under 27 & 28 Vict. c. 101, s. 51, within six months from the completion of the building or fence; Coggin v. Bennett, L. R. 2 C. P. D. 568.

An adjudication of a justice as to the value of an interest in land under sections 22, 24, of Lands Clauses Consolidation Act, is not an order for the

108. Except as herein specially provided, nothing herein contained shall in any way prejudice or affect any act, matter, or thing made, done, or commenced prior to the passing of this Act (c).

109. Nothing in this Act contained shall be held to make the several places named in schedule (C.) of the firstly-recited Act liable to any payment or assessment to which they would not have been liable if this Act had not been passed.

110. The said recited Acts and this Act shall be construed together Acts to be as one Act.

construed as one Act.

111 The recited Acts may be respectively cited for all purposes as Short titles. "The Metropolis Management Act, 1855," "The Metropolis Management Amendment Act, 1856," and "The Metropolis Management Act, 1858;" and this Act may be cited for all purposes as Metropolis Management Amendment Act, 1862."

"The

of terms.

112. In the construction of the recited Acts and this Act the term Interpretation "metropolis" shall be deemed to include the city of London and the parishes and places mentioned in the schedules (A.), (B.), and (C.) to the firstly-recited Act; the word "drain" shall be deemed to apply to and include the subject matters specified in the two hundred and fiftieth section of the firstly-recited Act, and also any drain for draining a group or block of houses by a combined operation, laid or constructed before the 1st day of January, 1856, pursuant to the order or direction or with the sanction or approval of the metropolitan commissioners of sewers (d); the expression 66 water company shall mean and include any of the companies enumerated in the twentyninth section of the Act of the session of the fifteenth and sixteenth years of the reign of Queen Victoria, chapter eighty-four, for the making better provision respecting the supply of water to the metropolis, and also any other company, board, or commission, association, person, or partnership, corporate or unincorporate, for the time being supplying the metropolis or any part thereof with water for domestic use; the word "cattle" shall include sheep, lambs, and swine; the word "street" shall be deemed to apply to and include the subject matters specified in the two hundred and fiftieth section of the firstly

payment of money within 11 & 12 Vict. c. 43, s. 11; and the six months' limitation does not apply; R. v. Hannay, 44 L. J. M. C. 27.

See also Jacombe v. Dodgson, 32 L. J. M. C. 113; Sweetman v. Guest, 37 L. J. M. C. 59; R. v. Edmundson, 17 Q. B. (N.s.) 67.

As to what is a continuing offence making the limitation inapplicable, see Higgins v. Northwich Union, 22 L. T. (N.S.) 752.

(e) A notice of rate was held to be "a thing done," within Public Health Act, 1875, section 343; R. v. Justices of West Riding of Yorkshire, 4 L. R. 1Q. B. D. 220; and Barnes v. Eddleston, L. R. 1 Ex. D. 102.

(d) The definition of the word "drain," section 250 of the Metropolis Management Act, 1855, ante, included the drainage of a block of houses by a combined operation under the order of any vestry or district board, but did not extend to combined drainage laid down before the passing of that Act. That species of drainage, therefore, came within the definition of the word "sewer" in the section referred to, and as such would probably have been maintainable by vestries and district boards out of the public rates. The new definition declares them to be drains, and, as a consequence, subjects them to the incidents applicable to private works.

Q