for the punishment of any persons offending against the pro- 18 & 19 Vict. visions of the Act, or in relation to appeals under the Act; as c. 121, s. 30. For recovery to which see post, p. 558. The expenses of all such proceedings may be paid by the local authority out of the rates or funds in relation administered by them under the Act; that is, out of the funds to appeals. before enumerated, see ante, p. 500. Ib. Ib. nor removed No order, or any other proceeding, matter, or thing done or Payment of transacted in or relating to the execution of the Act shall be costs thereof. vacated, quashed, or set aside for want of form, nor shall any Proceedings order, nor any other proceeding, matter, or thing done or trans- not to be acted in relation to the execution of the Act be removed or quashed for removable by certiorari, or by any other writ or process what- want of form, soever, into any of the superior Courts (except in the case pro- by certiorari. vided for in sect. 40 of the Act, as to which, see post, p. 561). Ib. s. 39. The 39th sect. of the 18 & 19 Vict. c. 121, taking away the writ of certiorari, is, however, not applicable when the justices have acted without jurisdiction, and contrary to the Act. (1) offenders. Ib. s. 19. Where proceedings under the Act are to be taken against Proceedings several persons in respect of one nuisance, caused by their joint against joint act or default, the local authority may include them in one com- Ib. s. 33. plaint, and the justices may include them in one summons. Any order subsequently made by the justices in the case may be made upon all or any of the persons included in the summons; and the costs of the proceedings may be distributed in Costs in such such manner as the justices may deem fair and reasonable; who case. are also empowered to divide all costs, expenses, and penalties between the persons by whose act or default the nuisance arises, in such manner as they shall consider reasonable. It is also provided that proceedings against several persons included Proceedings in one complaint shall not abate by reason of the death of any not to be of the persons so included, but that all such proceedings may be abated by death of one carried on as if the deceased person had not been originally in1- of them. cluded in the summons. Where, however, two or more persons, Ib. s. 39. being owners or occupiers of the premises, or partly the one or Proceedings partly the other, are answerable jointly or in common, or seve- against joint rally, it will be sufficient to proceed against any one or more of owners or them, without proceeding against any of the others, but the occupiers. Ib. s. 34. persons so proceeded against shall not be prevented from recovering contribution in any case in which they are entitled to contribution by law. of owner or occupier. Ib. s. 35. The persons against whom proceedings are taken under the Designation Act need not be designated by name, for whenever in any proceeding it is necessary to refer to the owner or occupier of the premises, it is sufficient if he be designated as the "owner" or the "occupier" of the premises, without name or further description. As a general rule it would be preferable to designate the (1) Reg. v. Gosse, 30 L. J. M. C. 41; 6 Jur. (N. s.) 1369. Obstructing execution of Act. 18 & 19 Vict. person proceeded against by name, but when that cannot conveniently be done, the general description of "owner" or "occupier" will suffice. Where, however, the proceedings are likely to lead to the costs and expenses being made chargeable on the premises under sect. 19 (see ante, p. 526), the better plan would be not to describe the person proceeded against by name, but simply as the owner of the premises. §3. PENALTIES. Whoever refuses to obey an order of justices made under the Act for the admission on premises of the local authority or their officers (that is, under sect. 11 of the Act, as to which, see ante, c. 121, s. 36. P. 509), or wilfully obstructs any person acting under the authority or employed in the execution of the Act, is liable for every such offence to a penalty not exceeding £5. Occupier obstructing owner. Ib. s. 37. If the occupier of any premises prevent the owner from obeying or carrying into effect the provisions of the Act, any justice to whom application is made in this behalf, by order in writing, Sch. Form G. is to require such occupier to desist from such prevention, or to permit the execution of the works required to be executed, provided that such works appear to such justice to be necessary for the purpose of obeying or carrying into effect the provisions of the Act. If within twenty-four hours after the service of the order in any of the modes specified in sect. 31, ante, p. 509, the occupier against whom it is made do not comply with it, he shall be liable to a penalty not exceeding £5 for every day afterwards during the continuance of such non-compliance. How recovered. Ib. s. 38. Penalties. These penalties, as well as all others imposed by the Act, may be recovered according to the provisions of the 11 & 12 Vict. c. 43; as to which it is necessary to remark that sect. 11 provides that in all cases where no time is specially limited for making any complaint, or laying any information, such complaint shall be made and such information shall be laid within six calendar months from the time when the matter of such complaint or information respectively arose. By the Sanitary Act, 1866, s. 54, penalties under that Act directed to be recovered in a summary manner may be recovered before two justices under the 11 & 12 Vict. c. 43. All penalties recovered by the local authority under the Act are to be paid to them, and to be applied by them in aid of the expenses under the Act. Penalties recovered by other than the local authority are payable to the county treasurer under the 11 & 12 Vict. c. 43, S. 31. Further, with regard to the penalties, see sections 14 and 27, ante, pp. 523-549. § 4. APPEALS. The local authority may, within the area of their jurisdiction, direct any proceedings to be taken in relation to appeals under the Act, the expenses attending which they may order to be Power of paid out of the rates or funds administered by them under the local Act. Ib. s. 40. authority to direct. Appeals against anything done under the Act, that is, against 18 & 19 Vict. orders of prohibition (ss. 13, 15); against order of abatement c. 121, s. 30. when structural works are required (s. 16); against assessment To quarter for sewers or structural works (s. 22); against conviction in sessions. respect of the carrying on of noxious trades, businesses, processes, or manufactures causing effluvia (s. 27), are to be made to the Court of Quarter Sessions held by the justices next after the making the order appealed against, and for this purpose the expression "quarter sessions" shall mean the Court of General Quarter sesor Quarter Sessions of the peace for a county, riding, or division sions, what. of a county, city, or borough. If, however, there be not time Ib. s. 2. to give notice of appeal and to enter into recognizances, then the appeal may be made to the next sessions at which it can be Next practiheard. Before an appellant can be heard in support of his cable sessions. appeal he must, within fourteen days after making the order Ib. s. 40. appealed against, give to the local authority notice in writing, stating his intention to bring such appeal, and also a statement Notice and in writing of the grounds of appeal; and within two days after statement of giving notice of appeal, enter into a recognizance before some grounds of justices of the peace, with sufficient sureties, conditioned to try appeal and the appeal, and to abide the order of and pay such costs as Ib. shall be awarded by the Court. The time for giving notice of appeal in the case of an order of abatement when structural works are required is, however, by sect. 16, limited to seven days from the date of the order. Sunday is not to be excluded from the computation of the two days within which the appellant is to enter into recognizance, although Sunday happens to be the last of them therefore, in a case where an appellant had given notice of an appeal on Friday, and did not enter into the recognizance till the following Monday, the sessions were held to be right in refusing to hear the appeal. (1) Again, in the case of an appeal against a rate, the fourteen days within which notice of appeal must be given will run from the time of the service of the notice of the rate, and not from the time when the amount was fixed by the local authority. Therefore in a case where the assessment to a rate under sect. 22 of the 18 & 19 Vict. c. 121, was made on the 4th February, and notice thereof served on the appellant on the 6th, and on the 20th the appellant served the respondents with notice and grounds of appeal, the notice was held to be in time. (2) The legislature intended that the person assessed should have fourteen days at the least for appealing, and therefore those days cannot be made to run unknown to him. (1) Ex parte Simkin, 2 E. & E. 392; 29 L. J. M. C. 23; 6 Jur. (N. S.) 144. S. C. nom. Reg. v. Leicestershire 77., I L. T. (N. s.) 92. recognizance. Notice of appeal. 18 & 19 Vict. C. 121, s. 40. Jurisdiction of justices on appeals. 12 & 13 Vict. c. 45, S. I. The hearing. 18 & 19 Vict. c. 121, s. 40. By 18 & 19 Vict. c. 121, s. 40, and also by 12 & 13 Vict. c. 45, costs are to be given by that Court of Quarter Sessions which determines the appeal; and the taxation of costs can only be advanced as ancillary to the giving of final judgment; where, therefore, there remains nothing of a judicial nature to be done by the Court of Quarter Sessions in the matter of an appeal against a conviction of a nuisance, by reason of the order of conviction being removed from that Court and entirely quashed, the Court of Quarter Sessions have no longer any power to tax the costs. (1) No justice being a member of a local authority for the exe cution of the Nuisances Removal Acts shall, by 29 & 30 Vict. c. 41, S. 2, be deemed incapable of acting in cases under the Nuisances Removal Acts. This apparently extends to appeals as well as to other proceedings, as the statute repeals the excep tion as to appeals in 23 & 24 Vict. c. 77, s. 16. It has since been enacted, by 30 & 31 Vict. c. 115, s. 2, that a justice of the peace shall not be incapable of acting as a justice at any petty or special, or general or quarter sessions, on the trial of an offence arising under an Act to put in execution by a municipal corporation or a Local Board of Health, or Improvement Commissioners or trustees, or any other local authority, by reason only of his being as one of several ratepayers, or as one of any other class of persons liable in common with the others to contribute to or to be benefited by any fund to the account of which the penalty payable in respect of such offence is directed to be carried, or of which it will form part, or to contribute to any rate or expenses in diminution of which such penalty will go. In every case of appeal (except against summary convictions, orders of removal, orders relating to pauper lunatics, orders in bastardy, proceedings in relation to the excise, customs, stamps, taxes, or post office) to any Court of General or Quarter Sessions of the peace, fourteen clear days' notice of appeal at least must be given in writing, signed by the person or persons giving the same, or by his or their attorney on his, her, or their behalf, and the grounds of appeal must be specified in every such notice. And it shall not be lawful for the appellant or appellants, on the trial of any such appeal, to go into or give evidence of any other ground of appeal besides those set forth in such notice. On the hearing of the appeal it is not competent for the appellant to go into, or for the Court to entertain any other grounds of appeal than those set forth in the statement above mentioned; and the Court upon the hearing and finally determining the matter of the appeal may, according to its discretion. award such costs to the appellant or respondent as they shall sioners, 7 L. T. (N. S.) 391. 8 Jur. (N. S.) 1212. (1) Reg. v. Hampshire 77, 32 L. J. M. C. 46. S. C. Isle of Wight Ferry Company v. Ryde Commis think proper; and its determination of the appeal, and the The hearing. award of costs, is to be conclusive and binding on all persons 18 & 19 Vict. to all intents and purposes whatsoever. As to the recovery of C. 121, S. 40. costs, see sect. 38, ante, p. 558, and the 12 & 13 Vict. c. 45, s. 5; and also ss. 1 and 3 of that Act as to amendment of statement of grounds of appeal. Where the quarter sessions make an order giving a successful appellant his costs, the course pointed out by the 11 & 12 Vict. c. 43, S. 27, and 12 & 13 Vict. c. 45, s. 5, must be pursued, although the respondents (public Commissioners) say they have no funds out of which to pay the costs, and that they dispute the validity of the order. (1) notices and orders. Ib. s. 41. It may be observed here, that the forms contained in the Forms of schedule to the Act, or any forms to the like effect, varied as circumstances may require, may be used for instruments under the Act, and shall be sufficient for the purpose intended. Ib. s. 40. Instead of determining the matter of the appeal, the Court of Special case, Quarter Sessions may, if they think fit, state the facts specially certiorari. for the determination of the Court of Queen's Bench, in which case the proceedings may be removed by writ of certiorari, or 12 & 13 Vict. otherwise, into that Court. The parties at any time, after c. 45, s. 11. giving notice of appeal to the Court of General or Quarter Sessions, may also, by consent and by order of any judge of one of the superior Courts of Common Law at Westminster, state the facts of the case in the form of a special case for the opinion of such superior Court, and agree that a judgment in conformity with the decision of such Court, and for such costs as such Court shall adjudge, may be entered on motion by either party at the sessions next or next but one after such decision shall be given; and such judgment when so entered shall be of the same effect in all respects as if it had been given by the Court of General or Quarter Sessions upon an appeal duly entered and continued. c. 44, s. 6. law for If in relation to any proceedings under the Act any justice Rule to or justices refuse to do an act, the Court of Queen's Bench may justices. by rule order him or them to do it; and thereupon no action 11 & 12 Vict. shall be brought for having obeyed the rule or done the act thereby required. So after the hearing or determination by a justice or justices of the peace of any information or complaint Case stated which he or they have power to determine in a summary way, on a point of either party to the proceeding before the justice or justices may, opinion of if dissatisfied with the determination as being erroneous in point superior of law, apply in writing within three days after the same, to the Court. justice or justices, to state and sign a case setting forth the 20 & 21 Vict. facts, and the grounds of such determination, for the opinion c. 43, s. 2. thereon of one of the superior Courts of law to be named by the party applying. The appellant, or party applying, must, Ib. s. 6. within three days after receiving the case, transmit it to the (1) Austin v. Milton-next-Sittingbourne, 29 J. P. 760. S. C. Ex parte Austin, 13 L. T. (N. S.) 443. |