anything done or intended to be done under the provisions of this Act, until the expiration of one month next after notice in writing shall have been delivered to him, or left at their or his office or usual place of abode, clearly and explicitly stating the cause of action, and the name and place of abode of the intended plaintiff, and of his attorney or agent in the cause (c);

And upon the trial of any such action the plaintiff shall not be permitted to go into evidence of any cause of action which is not stated in the lastmentioned notice;

And unless such notice be proved the jury shall find for the defendant;

of actions.

And every such action shall be brought or com- Limitation menced within six months next after the accrual of the cause of action, and not afterwards, and shall

them according to a specification prepared by the surveyor, the works to be done to his satisfaction, and the digging to be entirely under his direction, and he having power to reject materials and dismiss the workmen with whom he was dismissed. The contractor left a hole which had been made for the purposes of the work without a light by night, and a passenger fell into the hole and was injured. It was held by the Court of Queen's Bench, in an action against the contractor, that a notice of action was required by the above section. Newton v. Ellis, 5 E. & B. 115; 24 L. J. R., Q. B. 337. Where an action is brought against a local board of health by a contractor for a breach of contract, notice of action is not required under this section. Davies v. Corporation of Swansea, 8 Exc. Rep. 808.

Where a local board enter into a contract ultra vires, and cannot pay the contractor out of the rates, individual members of the board are not personally liable to the contractor. Bailey v. Cuckson, 32 L. T. 124.

(c) The party need not, when he is doing the act, be cognizant of this provision, nor is he prevented from claiming the benefit of it by departing slightly from it. Read v. Coker, 13 C. B. 850.

K

Venue.

General

issue.

Tender of amends, &c.

Money may be paid into

court.

be laid and tried in the county or place where the cause of action occurred, and not elsewhere (a);

And the defendant shall be at liberty to plead the general issue (V), and give this Act and all special matter in evidence thereunder;

And any person to whom any such notice of action is given as aforesaid may tender amends to the plaintiff, his attorney or agent, at any time within one month after service of such notice, and in case the same be not accepted may plead such tender in bar, and (by leave of the court) with the general issue or other plea or pleas (c);

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 judgment accordingly;

And in case amends have not been tendered as aforesaid, or in case the amends tendered be insufficient, the defendant may, by leave of the court, at

(a) This does not deprive the court of their common law power to change the venue where in their judgment the ends of justice require that they should do so. The Itchin Bridge Company v. The Southampton Local Board of Health, 27 L. R., Q. B. 128.

When an action is brought and judgment is recovered against a local board of health, that board are not prevented from satisfying the judgment though six months have elapsed from the accrual of the debt on which the judgment shall be founded, notwithstanding sect. 89. Nor are the board prevented from obtaining a postponement of the satisfaction of the judgment for a period exceeding six months. Reg. v. Rotherham Local Board of Health, 22 Jur. 261. See, however, Waddington v. City of London Union, in Exch. Ch., 22 J. P. 755.

(b) See Beaver v. The Corporation of Manchester, 8 E. & B. 44, when a special plea justifying under a local Act similar to this statute was held good.

(c) See 8 & 9 Vict. c. 18, s. 135, in Appendix.

any time before trial, pay into court, under plea, such sum of money as he may think proper, and (by the like leave) may plead the general issue or other plea or pleas, any rule of court or practice to the contrary notwithstanding.

ing in exe

CXL. And be it enacted, that no matter or thing Persons actdone (e) or contract entered into by the local board cution of Act of health, nor any matter or thing done by any sonally lia

(e) But the local board, notwithstanding the language of this clause, are liable to be sued in respect of damages arising out of their negligence in omitting to cause proper precautions to be taken in the execution of works which they order to be done. In such a case the action is properly brought against the clerk of the board, as the damages will be payable out of the rates. Ruck v. Williams, 27 L. J. R., Exc. 357; 3 H. & N. 308.

It may be well to state, that in this case the local board had ordered a new sewer to be constructed in their district under a contract and plans which did not provide for a "penstock or flap," which was requisite to prevent the plaintiff's premises from being flooded by the influx of a river into them through the sewer, and in consequence of such omission they were flooded and greatly damaged. This was held to be negligence on the part of the local board, for which they were liable.

Where negligence is proved on the part of those employed or contracted with by any public body to execute works, and that negligence is shown in the manner of executing those works, the body is not liable for injury which results from it. Steel v. The South-Eastern Railway Company, 16 C. B. 550. But if the damage arises out of the works themselves, or if the body are really the parties executing the works, they are liable. Scott v. Corporation of Manchester, 1 H & N. 59. Of course a public board is not answerable for damage which results from the negligence of the party injured, or of some other person independent of the public body, or acting contrary to or beyond their directions. Holden v. The Liverpool New Gas and Coke Company, 3 C. B. 1. Neither is such a board responsible for accidents arising out of extraordinary causes, where all reasonable care has been taken to prevent such as would arise from ordinary causes. Thus a waterworks company were held not liable for damage arising out of a frost of unusual severity. Blyth v. Birmingham Waterworks Company,2 Jur. (N.S.), 333; 11 Exc. 781. Where a public board let a navigation and omitted to give notice to the lessee to repair, and in consequence of

See

not to be per

ble.

superintending inspector, or any member of the said local board, or by the officer of health, clerk (ƒ), surveyor, inspector of nuisances, or other officer or person (g) whomsoever acting under the direction of the said local board, shall, if the matter or thing were done or the contract were entered into boná fide for the purpose of executing this Act, subject them or any of them personally to any action, liability, claim, or demand whatsoever ();

the want of repair a barge-owner sustained loss, the commissioners were held not to be liable to him on the ground of their omission, the loss not necessarily resulting_therefrom. Walker v. Goe, 3 H. & N. 395; 27 L. J., Exc. 427.

(f) The clerk is necessarily liable to an action according to sect. 138, but the clause extends to prevent his actual and personal responsibility.

(g) These words will exempt from personal liability every one who has bona fide contracted with the local board to do some act under their directions, though he may thereby cause a damage to another person which the act itself does not justify or excuse. Ward v. Lee & another, 7 E. & B. 426 ; 26 L. J. R., Q. B. 142. The remedy in such a case, according to the judgment of the court, would be against the local board, who would be reimbursed out of the district rate.

Notwithstanding these general words of reimbursement, it will be a question to be determined hereafter whether the individual members of a local board who may knowingly by their acts involve such board in expenses in consequence of their illegal proceedings, cannot be held personally responsible. See the new audit clause in 21 & 22 Vict. c. 98, s. 60.

(h) But the local board of health will be liable to the contractor in an action on the contract if broken, and he will not be compelled to proceed in equity, or by mandamus, in the first pace, or in an action on the case for the recovery of his damages. Nowell v. The Mayor, &c. of Worcester, 9 Exc. Rep. 457; Payne v. Mayor of Brecon, 3 H. & N. 572; 27 L. J., Exc. 495. The judgment, if given against a municipal corporation, will not, however, operate as a charge upon the real estate belonging to it, unless the lords of the treasury, upon a special memorial, enable this to be done. Arnold v. Mayor, &c. of Gravesend, 25 L. J. R., Ch. 777. Nor, as it seems, upon the other property of the corporation. Pallister v. Mayor of Gravesend, 9 C. B. 774; Arnold v. Ridge, 13 C. B. 745. As already noticed it may, however, be enforced by a mandamus. But upon that application it will be open to the board to show

And any expense incurred by any such local board, member, officer of health, clerk, surveyor, inspector of nuisances, or other officer or person acting as last aforesaid, shall be borne and repaid out of the general district rates levied under the authority of this Act.

Miscellaneous.

council and

orders may

[CXLI. ** And be it enacted (i), that Her Majesty Orders in may from time to time alter or amend any order in provisional council made under or in pursuance of the provi- be amended, sions of this Act, by any subsequent order in council, in such manner as Her Majesty, by and with the advice of Her privy council, may think proper;

And if at any time it appear to the general board of health that any provisional order made by them under this Act should be altered or amended, or that the boundaries of any district should be altered or extended, they shall make a provisional order under their hands and seal of office accordingly :

Provided always, that no order in council or provisional order as last aforesaid shall be made until such proceedings have been taken in and with respect to the district and parts to be affected thereby as are herein-before required to be taken previously to the original constitution of a district under this Act;

And no such provisional order shall be of any force or effect without the previous authority of parliament, as herein-before prescribed with respect to provisional orders made under this Act. **]

and districts

extended.

CXLII. And be it enacted, that all orders in Publication

that the contract entered into was void by reason of some provision in this Act, or because it was ultra vires.

(i) Repealed by 21 & 22 Vict. c. 98, s. 77, which contains special provisions to carry out the object of this section.

of orders in council, &c.