notice shall proceed. All moneys recovered by a local authority, as above stated, after payment of any damage caused by the act for which the penalty is imposed, are to be applied towards defraying the expenses of executing the Act.

The penalty can only be sued for in one of the superior Recovery of Courts, and therefore cannot be enforced summarily by pro- penalty. ceedings before the justices. In the default of proceedings by 18 & 19 Vict. the person injured, the local authority is to sue for the penalty, and if such authority be a corporation they may sue in their corporate name.

Nuisance authorities being now incorporated by the Sanitary Act, 1866, s. 46, they will sue for the penalty under 18 & 19 Vict. c. 121, S. 24, in the corporate name which they shall usually bear or which they may adopt.

If the district be one in which the provisions of the Watching and Lighting Act (3 & 4 Will. IV. c. 90) have been adopted, an action for a similar penalty may be brought by any person, and the penalty is to be paid to the person "who shall inform or sue for the same." See sect. 50 of that Act.

$12. EXPOSING FOR SALE MEAT UNFIT FOR FOOD.

The provisions of the Nuisances Removal Act for England, 1855, with regard to the inspection and seizure of diseased and unwholesome meat, having been found defective, the twentysixth section of that Act was repealed by the 26 & 27 Vict. C. 117, S. I, and the following enacted instead :

C. 121, S. 24.

health or

The medical officer of health or inspector of nuisances may Medical at all reasonable times inspect and examine any animal, carcase, officer of meat, poultry, game, flesh, fish, fruit, vegetables, corn, bread, or flour exposed for sale, or deposited in any place for the purpose nuisances to inspector of of sale or of preparation for sale, and intended for the food of inspect any man, the proof that the same was not exposed or deposited for animal, etc. such purpose or purposes, or was not intended for the food of 26 & 27 Vict. man, resting with the party charged. In case any such animal, c. 117, S. 2. carcase, meat, poultry, game, flesh, fish, fruit, vegetables, corn, bread, or flour appear to him to be diseased, or unsound, or unwholesome, or unfit for the food of man, it shall be lawful for such medical officer of health or inspector of nuisances to seize, take, and carry away the same, or direct the same to be seized, taken, and carried away by any officer, servant, or assistant, in order to have the same dealt with by a justice. If it shall appear to the justice that any such animal, or any of the said articles, is diseased, or unsound, or unwholesome, or unfit for the food of man, he shall order the same to be destroyed, or so disposed of as to prevent such animal or articles from being exposed for sale or used for such food; and the person to whom the same belongs or did belong at the time of sale or of exposure for sale, or in whose possession or on whose premises the same is found, shall, upon conviction, be liable to a penalty not ex

Penalty.
26 & 27 Vict.

C. 117, S. 2.

Penalty for obstructing

medical officer of

health, etc. Ib. s. 3.

Adulteration of food, etc.

ceeding £20 for every animal, carcase, or fish, or piece of meat, flesh, or fish, or any poultry or game, or for the parcel of fruit, vegetables, corn, bread, or flour so found, or, at the discretion of the justice, without the infliction of a fine, to imprisonment in the common gaol or house of correction for a term of not more than three calendar months.

In case any person shall in any manner prevent such medical officer of health or inspector of nuisances from entering any slaughter-house, shop, building, market, or other place where such animal, carcase, meat, poultry, or fish is kept for the purpose of sale or of preparation for sale, or shall in any manner obstruct or impede him, or his servant or assistant, when duly engaged in carrying the provisions of this Act into execution, such person shall be liable to a penalty not exceeding £5.

A butcher carried on business at his shop in a town, but resided at and occupied a house and some land at the outskirts, and nearly a mile distant from his shop. A quantity of diseased meat, loaded in carts, was carried into the yard belonging to the shop and there seized by the police. Within this yard there was a slaughter-house :-Held, first, that the yard was a place within the meaning of section 2; secondly, that assuming that the word "place" was used in the same sense in section 2 as in section 3, the word "place" in section 3 is not to be limited to places ejusdem generis with "slaughter-house, shop, building. or market." (1)

As to the recovery of penalties under the 26 & 27 Vict. c. 117, see sect. 38, post, p. 558. In the Public Health Act, 1 & 12 Vict. c. 63, s. 63, ante, p. 319, there is a similar provi sion as to the sale of meat unfit for food.

The statute 23 & 24 Vict. c. 84, is for preventing the adul teration of articles of food or drink. It recites that the practice 23 & 24 Vict. of adulterating articles of food and drink for sale, in fraud of c. 84. Her Majesty's subjects and to the great hurt of their health, requires to be repressed by more effectual laws than those which are now in force for that purpose, and imposes penalties on persons so offending, and provides for the appointment of analysts of articles of food and drink purchased within the particular district. The Act applies to Great Britain and Ireland; but the local authorities under the Nuisances Removal Act are not invested with any duties under it.

Adulteration of Food or Drink Act to extend to medicines.

31 & 32 Vict.

c. 121, s. 24.

By the Pharmacy Act, 1868, the provisions of the 23 & 24 Vict. c. 84, "shall extend to all articles usually taken or sold as medicines, and every adulteration of any such article shall be deemed an admixture injurious to health; and any person registered under the Act 31 and 32 Vict. c. 121, who sells any such article adulterated, shall, unless the contrary be proved, be deemed to have knowledge of such adulteration."

(1) Young v. Gattridge, 38 L. J. M. C. 67 ; L. R. 4 Q. B. 166,

§ 13. NOXIOUS TRADES AND MANUFACTURES.

By section 8 of the Nuisances Removal Act, which defines Noxious acthe word "nuisance," no such accumulation or deposit as shall cumulations be necessary for the effectual carrying on of any business or upon manufacture shall be punishable as a nuisance when it is proved 18 & 19 Vict. premises. to the satisfaction of the justices that the accumulation or c. 121, s. 8. deposit has not been kept longer than is necessary for the purposes of such business or manufacture, and that the best available means have been taken for protecting the public from injury to health thereby; a summary remedy for the abatement of other nuisances arising from noxious trades or manufactures is given by another section of the Act.

If any candle-house, melting-house, melting-place, or soap- Noxious house, or any slaughter-house, or any building or place for trades, etc. boiling offal or blood, or for boiling, burning, or crushing bones, Ib. s. 27. or any manufactory, building, or place used for any trade, business, process, or manufacture causing effluvia (situate within. the limits of any city, town, or populous district), be at any time certified to the local authority by any medical officer, or any two legally qualified medical practitioners (and a requisition in writing under the hands of any ten inhabitants of a place shall for the purposes of 18 & 19 Vict. c. 121, s. 27, be deemed to be equivalent to the certificate of the medical officer or medical practitioners therein mentioned, and the section shall be enforced accordingly, 29 & 30 Vict. c. 90, s. 18), to be a nuisance or injurious to the health of the inhabitants of their neighbourhood, the local authority shall direct complaint thereof to be made before any justice. Such justice may then summon before any two justices in petty sessions the person by or in whose behalf the work complained of is carried on; and if upon inquiry it appear to them that the trade or business is a nuisance, or causes any effluvia injurious to the health of the inhabitants of the neighbourhood, and that the person complained against has not used the best practicable means for abating the nuisance, or preventing or counteracting the effluvia, the offender (being the owner or occupier of the premises, or a foreman or other person employed by the owner or occupier) shall, upon summary conviction, be liable to a penalty not exceeding £5, nor less than 40s. Upon a second conviction he is to be liable to a penalty of £10; and for each subsequent conviction to a penalty in a sum double the amount of the penalty imposed on the last preceding conviction, but so that such cumulative penalty do not in any case exceed £200.

The justices may, however, suspend their final determination Ib. upon the complaint, upon condition that the person complained against shall undertake to adopt within a reasonable time such means as the justices shall judge to be practicable, and order to be carried into effect, for abating the nuisance, or mitigating or preventing the injurious effects of the effluvia. They may also

Noxious trades, etc.

18 & 19 Vict.

C. 121, s. 27.

Recovery of penalties. Îb. s. 38.

suspend their final determination if the person complained against shall give notice of appeal, and shall enter into recog nizances to try such appeal, and shall appeal accordingly.

The foregoing provision, however, shall not extend or be applicable to any place without the limits of any city, town, or populous district.

The local authority, before proceeding to abate a nuisance arising from the carrying on of any noxious trade above specified, must wait till they are set in motion by the certificate of "any medical officer, or any two legally qualified medical prac titioners." What "medical officer" is referred to is not very apparent, but probably the words refer to any" officer of health," appointed for a place under a Local Board of Health, under the 11 & 12 Vict. c. 63, s. 40; or they may apply to a poor law medical officer of a union or parish, appointed by the Board of Guardians of such union or parish. Where, however, it may be apprehended that a question will be raised as to who is competent to certify as a "medical officer," it will be better that the proceedings should be taken on the certificate of two "legally qualified medical practitioners," that is, two medical practitioners duly registered under the 21 & 22 Vict. c. 90; or a requisition from any ten inhabitants under 29 & 30 Vict. c. 90, s. 18. It would seem, from the language of the enactment, that it is compulsory upon the local authority to direct complaint to be made to a justice on their receiving the certificate; but it would also seem that the justice is not compelled to act upon the complaint, if for any cause he see fit to refuse to do so; he may summon before any two justices (or a stipendiary magistrate) "the person by or on whose behalf the work complained of is carried on ;" and if the commission of the offence be proved to the satisfaction of the justices, the person so offending, "being the owner or occupier of the premises, or being a foreman or other person employed by such owner or occupier," shall, upon summary conviction, forfeit, etc. It is only the person by or on whose behalf the work is carried on that can be summoned before the justices; and though the owner, occupier, foreman, or other person employed by the owner or occupier, are made liable to the penalties provided by the Act, it would be the safer course to convict the person is actually summoned, provided he be the owner or occupier, that is, the person by or in whose behalf the work is carried on; for these words do not apply to a foreman or servant, who cannot be said to carry on the work in the sense of the enactment. The penalties are recoverable according to the provisions of Jervis's Act, 11 & 12 Vict. c. 43, which requires that the offender be previously summoned to appear to answer the complaint. As it is only the person by or on whose behalf the work is carried on that can be summoned, it is difficult to see, notwithstanding the words of the present enactment, how any other than such person can be convicted in the penalty.

who

c. 121, s. 38.

551 The justices can only convict the person complained against Recovery of if he shall not have used the best practicable means for abating penalties. the nuisance, or preventing or counteracting effluvia injurious 18 & 19 Vict. to health; therefore, if it appear to the justices that he has done all that it is practicable for him to do under the circumstances, their jurisdiction will be ousted, notwithstanding the existence of the nuisance; but the persons who cause it may still be indicted at common law, for it is provided, that nothing Ib. s. 43. in the Act shall impair any power of abating nuisances at common law.

Ib. s. 28.

The person complained against under sect. 27 may oust the Proceedings jurisdiction of the justices to determine the complaint if, on at law or his appearance before them in obedience to the summons, he equity. object to have the matter determined by them, and enter into recognizances, with sufficient sureties, to abide the event of any proceeding at law or in equity that may be had against him on account of the subject-matter of the complaint. And the local authority are thereupon to abandon all proceedings before the justices, and forthwith to take proceedings at law or in equity for preventing or abating the nuisance complained The above provision is confined to proceedings under sect. 27, and does not extend to those which are provided for by sect. 12 of the Act.

of.

By a subsequent clause, the local authority are empowered, Ib. s. 30. within the area of their jurisdiction, to direct any proceedings to be taken at law or in equity in cases coming within the purview of the Act, and may order the expenses of all such proceedings to be paid out of the rates or funds administered. by them under the Act.

The clause is imperative in directing the local authority to institute proceedings in law or in equity, as the case may require; and it is obvious that unless they do so it will be in the power of any person complained of under sect. 27 to defeat proceedings taken against him before the justices under that section, by conforming to the provision of sect. 28.

In proceedings under either section, each distinct offence must be proved; it will not suffice merely to prove a previous conviction for the same offence; for a summary conviction under the 16 & 17 Vict. c. 128, S. 1 (the Smoke Nuisance Abatement Act), for carrying on the same trade so as to occasion noxious effluvia "without using the best practicable means of preventing or counteracting the smoke or other annoyance," was held not admissible in evidence upon the trial of an indictment for a nuisance at common law in carrying on a trade. (1)

Where a suit by information was laid at the relation of the clerks of a Local Board for the district of Oldbury, and by bill in which the same clerks were plaintiffs, for the purpose of

(1) Reg. v. Fairie, 8 E. & B. 486; 4 Jur. (N. s.),300; 8 C. C. C. 66.