Q.B. Div.]

buildings, by erecting a certain new dwellinghouse, to wit, the Dew Drop inn, without provid ing the air-space required by the bye-law, did break the aforesaid bye-law No. 63 by continuing the offence after the date of the conviction for eighty-five days after written notice in that behalf from the urban sanitary authority, contrary to the bye-law and to the statute in such case made and provided.

Upon the hearing of the information, no evidence was tendered on either side, but the following facts were admitted:

That the Dew Drop inn, the building in question, was not, and never had been, the property of the appellants; that the appellants were builders; and that the building in question was rebuilt by them for the Commercial Brewery Company Limited. That the appellants were not, and had not been, in possession of the building or premises since the date of conviction, the 30th Nov. 1898, and had no right, power, or authority to go upon the premises after the date of the conviction. The conviction was admitted. It was also admitted that the building and premises were in the same condition as on the 3rd Sept. 1898 and as on the date of the above conviction. The byelaws were admitted, also the notice of the 20th Jan. 1899 by the respondents to the appellants and the authority of the respondents to take proceedings.

On the part of the appellants it was contended that the facts admitted did not constitute a continuing offence under the bye-law and sect. 158 of the Public Health Act 1875 for which the appellants were or could be made liable, as they were not and never had been owners, and they were not in possession or control of the buildings or premises at any time subsequent to the conviction on the 30th Nov. 1898, and could not comply with the notice of the 20th Jan. 1899 without committing a trespass, and that the appellants could not remedy the breach complained of.

On the part of the respondents it was contended that the building and the premises being in the same condition as on 3rd Sept. 1898 and as on the 30th Nov. 1898, the date of the conviction, the appellants had committed a continuing offence under the bye-laws and sect. 158 of the Public Health Act 1875, for which continuing offence they were liable to be convicted.

The learned magistrate was of opinion that sect. 158 of the Public Health Act 1875, combined with the cases of Rumball v. Schmidt (46 L. T. Rep. 661; 8 Q. B. Div. 603) and Reay v. Gateshead Corporation (55 L. T. Rep. 92) made the existence of the building in the condition above stated a continuing offence, and that the appellants were liable to be convicted, and he accordingly convicted them.

The question for the opinion of the court was whether the magistrate, upon the above statement of facts and on the above contention of law, came to a correct determination and decision in point of law; and, if not, what should be done in the premises.

The Public Health Act 1875 (38 & 39 Vict. c. 55), s. 158, after provisions as to the commencement of works without the approval of the plans of such works, or after the disapproval of such works by the urban authority, and giving to the urban authority, if such works are in contravention of any bye-law, power to pull them down at

[Q.B. DIV.

the expense of the person erecting them or causing their erection, proceeds:

Where an urban authority may under this section pull down or remove any work begun or executed in contravention of any bye-law, or where the beginning or execution of the work is an offence in respect whereof the offender is liable in respect of any bye-law to a penalty, the existence of the work during its continuance in such a form and state as to be in contravention of the byelaw shall be deemed to be a continuing offence, but a penalty shall not be incurred in respect thereof after the expiration of one year from the day when the offence was committed or the bye-law was broken.

Boydell Houghton for the appellants.-No continuing offence was committed by the appellants within sect. 158, since they did not continue the existence of the building. The case finds that they were ever since their previous conviction out of the possession and control of the building, and had no right, power, or authority to re-enter, and that if they did re-enter upon the premises, they would be guilty of trespass. How can it be contended that it is an offence not to do that which would be illegal? The urban authority could proceed against the owner, who is the person who kept the building in existence. The cases relied on do not support the conviction. Rumball v. Schmidt (sup.) was a decision on a very different section -sect. 156-which has since been repealed. only point in Reay v. Gateshead Corporation (sup.) relevant to the present contention is an obiter dictum of Hawkins, J. Sect. 158 was passed merely to meet the decision in Marshall v. Smith (28 L. T. Rep. 538; L. Rep. 8 C. P. 416), which held that keeping a building in existence which was erected in contravention of a bye-law was not a continuing offence. He also referred

to

The

Smith v. Legge, 68 L. T. Rep. 347; (1893) 1 Q. B. 398;

Wallen v. Lister, 70 L. T. Rep. 348; (1894) 1 Q. B. 312;

London County Council v. Worley, 71 L. T. Rep. 487; (1894) 2 Q. B. 826.

Gwynne James (Asquith, Q.C. with him) for the respondents. Sect. 158 was passed to meet the decision in Marshall v. Smith, and its effect is to make the person who originally committed the offence liable for its continuance, and by necessary implication it gives to that person power to enter upon the land and put an end to the offence. There can be no meaning in the limitation if the owner alone is the person liable. Both Rumball v. Schmidt (sup.) and Reay v. Gateshead Corporation (sup.) support this view. If it is held that the builder's liability ceases when he gives up possession, it will be impossible to enforce the Act since it is frequently impossible to ascertain who the owner is, and by the time he is ascertained he may have sold the property. [Houghton.-Sect. 306 supplies machinery for finding out who is owner.]

No reply was called for.

DARLING, J.-The case stated finds that the appellants have been convicted of building a house called the Dew Drop inn in such a manner as not to be in conformity with a bye-law made by the respondents, the urban sanitary authority, and it is also found that the appellants were not, and had not been in possession of the building or premises in question since the date of the first con

viction that is, the 30th Nov. 1898-and had no right, power, or authority to go upon the premises after the date of the conviction. After that conviction, on the 20th Jan. 1899, a notice was served by the respondents on the appellants requiring them to put an end to the condition of things which was contrary to the law, and it was on the failure to comply with this notice that the conviction now appealed from took place. It is contended on behalf of the appellants that, since they could not, without committing a trespass, have complied with the notice served on them, their failure to comply therewith cannot render them liable to be convicted for such failure. I think that contention is correct. The respon

dents are in this dilemma: according to their contention sect. 158 of the Public Health Act 1875 makes the builders responsible for the continuing offence with which they are charged in the present case, while at the same time they cannot satisfy the obligation so imposed upon them without committing a trespass for which they would also incur liability. This obligation to obey the statute at the expense of breaking the common law is said to be imposed by sect. 158. The words of that section are as follows: "Where the beginning or the execution of the work is an offence in respect whereof the offender is liable in respect of any bye-law to a penalty, the existence of the work during its continuance in such form and state as to be a contravention of the bye-law shall be deemed to be a continuing offence." It is contended that this section gives the appellants power to go on the land in order to comply with the notice, but there are no words to that effect. The local authority are right in the view they take that the existence of the work in the state in which it was in the present case amounted to a continuing offence; but the question is by whom was the continuing offence committed? The builders did wrong in the first instance and they were fined for it; but when the subsequent notice was served on them they had given up possession of the premises, and they could not have gone back upon them without committing a trespass. The Act does not say that such a state of affairs as occurred here is a continuing offence so as to make the person who committed the initial offence necessarily liable for the continuing offence. In such a case as the present the builder is not the person who is liable. I am therefore of opinion that the conviction was wrong.

CHANNELL, J.-I am of the same opinion. I can entertain no possible doubt that sect. 158 of the Public Health Act 1875 was passed to meet the case of Marshall v. Smith (sup.), in which the court held that suffering a wall built of a less thickness than that required by the bye-law to remain unaltered was not a continuing offence. The question raised in the present case is covered by sect. 158. That section makes the existence of a structure in a state obnoxious to a bye-law a continuing offence, but it does not say on whose part it is a continuing offence. It might have said that the existence of the work in the state referred to should be a continuing offence on the part of the person who had been guilty of the original offence; but it has not said so. It is suggested on behalf of the respondents that the Act must be assumed to have intended this, because it has limited the liability to one year

after the offence has been committed, and that it was not enough for the person charged to show that he could not do what the notice required when the notice was served on him, but that he was liable whether he could then remedy the mischief or not. I cannot agree. There are many reasons for this limitation of liability to one year. I think that the section means that the person liable for the continuing offence must be the person who actually continues the work. The local authority must find out the owner of the premises, and if they cannot, so much the worse for them. They are, however, assisted as to this by sect. 306 of the Act, as has been pointed out during the argument. There is one case in point: Reay v. Gateshead Corporation (sup.). In this case language is attributed to Hawkins, J. which would justify the decision of the magistrate in the present case. The words are: "If this section "-sect. 158-" had been passed before the decision in Marshall v. Smith (sup.), there would have been no doubt at all that the penalties there would have been properly imposed" (55 L. T. Rep. at p. 102). If one looks at the point decided in Marshall v. Smith, it is clear that this statement is not strictly accurate. It may not be correctly reported, but, if the report is correct, it is clear that the learned judge could not have had the point with which we are now dealing present to his mind.

Judgment for the appellants. Solicitor for the appellants, Albert Saunders. Solicitors for the respondents, Hillearys.

Friday, Jan. 19, 1900.

(Before BRUCE and PHILLIMORE, JJ.) LONDON COUNTY COUNCIL v. EAST LONDON WATERWORKS COMPANY. (a) Waterworks-Metropolis-Fire hydrants-User-Waterworks Clauses Act 1847 (10 & 11 Vict. c. 17), ss. 3, 37, 43-Metropolitan Fire Brigade Act 1865 (28 & 29 Vict. c. 90), s. 32-Metropolis Water Act 1875 (34 & 35 Vict. c. 113), s 34London County Council (General Powers) Act 1894 (57 & 58 Vict. c. ccxii.), s. 4. Waterworks companies which have provided hydrants, fireplugs, and apparatus pursuant to the Metropolitan Fire Brigade Act 1865, s. 32, and the Metropolis Water Act 1871, s. 34, are entitled to use and delegate the use of such hydrants, fireplugs, and apparatus for any purpose they please, without the consent of the London County Council, provided they do not interfere with the latter's free use of them for the purpose of extinguishing fire and the purposes specified in the Waterworks Clauses Act 1847, s. 37.

THIS was a special case stated in an action brought by the London County Council (hereinafter called the plaintiffs) against the East London Waterworks Company (hereinafter called the defendants) claiming a declaration that hydrants, fireplugs, and apparatus, provided or to be provided by the defendants pursuant to the Metropolitan Fire Brigade Act 1865 (28 & 29 Vict. c. 90), s. 32, and the Metropolis Water Act 1871 (34 & 35 Vict. c. 113), s. 34, or either of those (a) Reported by J. ANDREW STRAHAN, Esq., Barrister-at-Law.

sections ought not, in the absence of any agreement under the London County Council (General Powers) Act 1894 (57 & 58 Vict. c. ccxii.), s. 4, or alternately without the consent of the London County Council, to be used for any purpose other than the supply of water for extinguishing fires, and the purposes specified in the Waterworks Clauses Act 1847 (10 & 11 Vict. c. 17), s. 37, and an injunction.

Waterworks Clauses Act 1847 (10 & 11 Vict. c. 17):

Sect. 3. The expression "the town commissioners' shall mean the parties defined under that title in the special Act, and where no such parties shall be there defined, shall mean the commissioners, trustees, or other parties having the control or management of the streets under any Act for paving or improving the town or district to be supplied with water under the special Act.

Sect. 37. In all the pipes to which any fireplug shall be fixed, the undertakers shall provide and keep constantly laid on, unless prevented by frost, unusual drought, or other unavoidable accident, or during necessary repairs, a sufficient supply of water for the following purposes; that is to say, for cleausing the sewers and drains, for cleansing and watering the streets, and for supplying any public pumps, baths, or washhouses, that may be established for the free use of the inhabitants, or paid for out of any poor rates or borough rates levied within the limits of the special Act; and such supply shall be provided at such rates, in such quantities, and upon such terms and conditions as may be agreed upon by the town commissioners and the undertakers, or, in case of disagreement, as shall be settled by two justices until an inspector shall have been appointed, and after the appointment of such inspector by the inspector so appointed.

By sect. 38 the undertakers shall fix fireplugs in the pipes for the supply of water for extinguishing fires.

By sect. 39 the undertakers shall renew, and keep in order, the fireplugs, and deposit keys where fire engines are kept, and put up notices showing the situations of the fireplugs.

By sect. 43 the cost of fireplugs and keys shall be defrayed by the town commissioners.

By sect. 41 the undertakers shall place and maintain fireplugs for extinguishing fires only, near works or manufactories at the request and expense of the owners or occupiers.

Sect. 42:

The undertakers shall at all times keep charged with water under such pressure as aforesaid, all their pipes to which fireplugs shall be fixed, unless prevented by frost, unusual drought, or other unavoidable cause or accident or during necessary repairs, and shall allow all persons at all times to take and use such water for extinguishing fire, without making compensation for the same.

By sect. 43 penalties are imposed on the undertakers for neglect or refusal to comply with the obligations imposed by the preceding sections.

The special Acts of Parliament by and under which the undertaking of the defendant company was regulated and carried on incorporated all the above provisions.

Metropolitan Fire Brigade Act 1865 (28 & 29 Vict. c. 90),

Sect. 32. All the powers now exercised by any local body or officer within the metropolis as respects fireplugs shall henceforth be exercised by the board, and the board shall be entitled to receive copies or extracts of all plans kept by any water company under the provi

sions of 15 & 16 Vict. c. 84, and every such water company shall provide, at the expense of the board, in any mains or pipes within the metropolis, plugs for the supply of water in case of fire, at such places, of such dimensions, and in such form as the board may require, and the Fire Brigade shall be at liberty to make such use thereof as they may deem necessary for the purpose of extinguishing any fire; and every such company shall deposit keys of all their fireplugs at such places as may be appointed by the board, and the board may put up on any house or building a public notice in some conspicuous place in each street in which a fireplug is situated, showing its situation.

Metropolis Water Act 1871 (34 & 35 Vict. c 113):

Sect. 34. Sect. 32 of the Metropolitan Fire Brigade Act 1865 shall operate subject and according to the provisions following-that is to say: (1) In that section and in this provision the term "fireplug" and the term "plug shall include hydrant and all other apparatus necessary or proper in connection with the company's pipes for supply of water in cases of fire. (2) Where a company give a constant supply in any part of their water limits, they may, if they think fit, give notice thereof to the Metropolitan Board of Works. (3) If the Metropolitan Board of Works do not within two months after receipt of any such notice specify, as regards that part of the company's water limits, what plugs for supply of water in case of fire, at what places, of what dimensions, and in what form they require the company to provide, then, at any time after the expiration of that time, the company may, if they think fit, provide in and for that part of their water limits, such plugs for supply of water in case of fire, at such places, of such dimensions, and in such form, as to the company seem necessary or proper. (4) Thereupon as regards that part of the company's water limits, the company shall be deemed to have fully discharged all obligations imposed on them by the said sect. 32. (5) All plugs provided by a company in pursuance of this provision may, for the purposes of the Fire Brigade be used as if they had been provided on the requisition of the Metropolitan Board of Works under the said sect. 32.

By sub-sect. 6 the expense of providing plugs is imposed on the Metropolitan Board of Works. The term "company" included the defendants. By the Local Government Act 1888 (51 & 52 Vict. c. 41), s. 40, the powers, duties, and liabilities of the Metropolitan Board of Works were transferred to the plaintiffs.

London County Council (General Powers) Act 1894 (58 & 59 Vict. c. ccxii.):

Sect. 4. It shall be lawful for the council to enter into and carry into effect any agreement with the companies supplying water in London, and the vestries and district boards of works in London, or any of them respectively, with respect to the use of fire hydrants for flushing and other purposes. Provided that no agreement under this section with respect to any hydrant shall be valid, unless the company owning the main or pipe with which the hydrant is connected, and the local authority (if any) to whom the hydrant belongs, shall be a party thereto.

The hydrants to which the action more particularly referred were situated in Dalston-lane, Queen's-road, Downs-road, Wells-street, and Brooksby's-wall. In and between the months of July and Sept. 1897 these streets were in course of being paved and channelled, and the defendants from time to time during those months, without having obtained or asked the consent of the plaintiffs, used and allowed those engaged in the operations of paving and channelling the

the road a fireplug means thereby that the company may never use the plug for any other purpose."

English Harrison, Q.C. in reply.-Lord Esher's statement in Moore v. Lambeth Waterworks Company (sup.) was merely obiter dictum.

BRUCE, J.-The first question stated for our opinion is whether the hydrants, fireplugs, and apparatus, provided by the defendants pursuant to the Metropolitan Fire Brigade Act 1865, s. 32. and the Metropolis Water Act 1871, s. 34, or either of those sections may, in the absence of any agreement under the London County Council (General Powers) Act 1894, s. 4, lawfully be used for any purpose other than to supply water for extinguishing fires. I am of opinion that we ought to answer this question in the affirmative. I fail to see any provision the effect of which can be to limit the right of the defendants to use the hydrants in the way the plaintiffs say that right is limited. There is nothing in any of the statutes referred to in the case, and to which our attention is drawn, to limit the right of the waterworks company to use their own hydrants as they think fit, subject to the obligations expressly imposed upon them by those statutes. The second question is, whether the additional user is limited to the purposes specified in the Waterworks Clauses Act 1847, s. 37, or to any and what other purposes. There is nothing to limit the user as suggested, and this question must therefore be answered in the negative. The third question is, whether the additional user may take place without the consent of the London County Council. There is nothing to require the county council's consent, so our answer must be in the affirmative. The fourth question is, whether the right of user is confined to the defendants themselves, or may with their consent be exercised by other persons. The proper answer to that is there is nothing to confine the right of user as suggested. The result is that the plaintiffs have failed to make out their case, and the defendants are entitled to judgment.

PHILLIMORE, J.-I am of the same opinion. Various burdens and obligations are imposed on the waterworks company by the different statutes which have been referred to. One of these obligations is to fix and maintain fireplugs, now hydrants. The company are also bound to keep their pipes charged, and to allow all persons to draw water from their pipes for extinguishing fires without demanding compensation, and to provide water for cleansing sewers and drains, for cleansing and watering the streets, and for providing public pumps, baths, &c., on the terms set out. All the different sections impose special obligations, and the reasonable inference from this is there are no other obligations imposed in addition to those specified. The whole matter is the creation of statute, and every obligation imposed must arise by statute. There is nothing stated in the case to show that any mischief is likely to arise from the hydrants being used by the waterworks company, who in any event would have the control of the hydrants. It is true that the hydrants were erected at the request and at the expense of the plaintiffs; but they were placed on the waterworks company's property, and they are the waterworks company's property subject only to the right of access by the plaintiffs,

[Q.B.

as being the municipal authority, for the purpose of extinguishing fire.

Judgment for the defendants. Solicitor for the plaintiffs, W. A. Blaxland. Solicitors for the defendants, Bircham and Co.

Wednesday, Jan. 31.

(Before CHANNELL and BUCKNILL, JJ.) REG. v. JUSTICES OF LONDON; Ex parte GUARDIANS OF THE POOR OF GREENWICH. (a) Practice-Order for maintenance of parent— "Sum adjudged to be paid"-Appeal to quarter session-43 Eliz. c. 2, s. 6-Metropolitan Police Court Act 1839 (2 & 3 Vict. c. 71), s. 50.

There is no right of appeal to quarter sessions under sect. 6 of 43 Eliz. c. 2, from an order to contribute to the maintenance of a pauper parent made by justices in petty sessions.

Where the order was for the payment of a sum of 28. 6d. per week while the parent remained a pauper, held that such order was not a summary order "in which the sum or penalty adjudged to be paid shall be more than 31., or in which the penalty adjudged shall be imprisonment for any time more than one calendar month," within sect. 50 of the Metropolitan Police Court Act 1839, though the liability under the order might ultimately exceed 31., and though the person ordered to pay might ultimately be imprisoned for failure to do so.

RULE nisi for a certiorari to bring up and quash an order made by the Court of Quarter Sessions of South London on an appeal from a metropolitan magistrate, on the ground that the Court of Quarter Sessions had no jurisdiction to entertain such appeal.

On the 4th May 1899, on the application of H. S. Campbell on behalf of the guardians of the poor of Greenwich Union, the metropolitan magistrate sitting at the Greenwich Police-court, made the following order: That H. S. Campbell, on behalf of the guardians of the poor of the Greenwich Union having made

com

plaint that one Mary Anne Grist is an old and impotent person, and not able to work or maintain herself, and is now chargeable to the said union, and that one J. Grist, hereinafter called the defendant, is the son of the said Mary Anne Grist, and is of sufficient ability to relieve and maintain his said mother. On hearing the said complaint, it is adjudged that the said Mary Anne Grist is poor and unable to work so as to support and maintain herself, and that she is actually chargeable to the said union, and that the said defendant is of sufficient ability to relieve and maintain his said mother; and it being now proved that the said defendant dwells within the jurisdiction of this court, it is ordered that the defendant shall upon notice of this order pay to the guardians of the said union through their collector weekly from this time present the sum of 2s 6d. for and towards the relief and maintenance of the said Mary Anne Grist for and during so long a time as she is poor and unable to work so as to relieve and maintain herself, and shall be chargeable to the said union, or until the (a) Reported by J. ANDREW STRAHAN, Esq., Barrister-at-Law.