Charles, in reply.

FIELD, J.-We are of opinion that the order was rightly made upon the Fulham Union. In point of fact it is quite clear that the pauper has resided the time which by the statute is requisite to make her irremovable in Fulham, and she has had no residence elsewhere. We are therefore spared all questions as to constructive residence, and have only to see whether her case comes within the proviso to the Act 9 & 10 Vict. c. 66. s. 1. Now the object of the Legislature in passing the Acts making paupers irremovable was, first, in the interest of the paupers to prevent disruption of homes and separation of families and persons being taken away from their place of birth; secondly, in the public interest to diminish the expense of orders of removal, and to do away with those minute questions about derivative settlements which used to be continually arising.

But when the Legislature decided to confer a status of irremovability on the paupers, they intended to protect the parish in respect of temporary residences, or such as might be brought about collusively or corruptly with the view of shifting burdens on to ratepayers who ought not to bear them. They also provided that compulsory residences, such as in a prison or asylum, should not make a man irremovable. The question then. here is, whether the residence of this pauper in Fulham came legally into existence as a residence within the early part of the section while she was in this home -whether she was in part maintained by any rate or subscription raised in a parish

in which she did not reside, not being a bona fide charitable gift.

When we look at the cases to which the proviso does in terms apply—the Greenwich pensioners, patients in a hospital, lunatics and prisoners-I cannot help feeling that if the Legislature had foreseen this case they might have included it. At the same time Fulham does receive something in the rateability of this home, and from the persons who come in consequence into the parish and contribute to the burdens. As, however, we cannot speculate on what might have been, I am bound to say that I think that on the plain language of the proviso this case does not fall within it.

I agree with Mr. Charles that the pauper has been maintained in part by subscriptions raised in a parish where she does not reside; but then, if such subscription is a bona fide charitable gift, the former words do not apply to relieve the Fulham Union. It must be admitted that these subscriptions are charitable, and they are given bona fide. Can it then be said not to be a gift because the donation does not go direct from the giver to the object of the charity? I think not. It is true the subscribers do not give their money to a named individual, but they entrust it to an official to expend it in the best way upon the individuals. I think, therefore, it is a charitable gift, and the proviso does not apply.

MANISTY, J.—I have come to the same conclusion. I do not rest my judgment on what may have been the general intention of the Legislature when the Act was under consideration, but upon what the Act has said. At the same time I do think that the purpose of the legislation on the subject was to prevent parish A from being saddled with the payment for a pauper really belonging to parish B; and I do not quite agree with my brother Field as to the meaning which he has given to the words "a parish" as equivalent to "any parishes." I think what was intended to be expressed was that parish B should not be able to evade its liability by means of any rate or subscription raised in such parish to maintain or partly maintain a pauper then residing in parish

Order affirmed.

Solicitors-Rexworthy, Oswell & Co., for appellants; Paterson, Snow & Bloxam, agents for O. and A. Daniel, Ramsgate, for respondents.

[IN THE QUEEN'S BENCH DIVISION.]

1881. Feb. 19.

GOULD AND OTHERS (appel. lants) v. THE BACUP LOCAL BOARD (respondents).

Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 150-Sewering of Street-Recovery of Expenses incurred by Local Board -Notice not in accordance with StatutePrivate Improvement Expenses-Summary Procedure before Justices.

The 150th section of the Public Health Act, 1875, permits an urban authority in certain cases to give notice to the owners of premises fronting, adjoining or abutting parts of such street which in the judgment of such urban authority required to be sewered, requiring them to do what is necessary within a time to be specified in the notice, and, in the event of non-compliance with the notice, to execute the works themselves; and the same section also provides that such urban authority "may recover in a summary manner the expenses incurred by them in so doing from the owners in default, or may by order declare the expenses so incurred to be private improvement expenses."

By section 213, et seq., a private improvement rate may be levied for expenses declared to be private improvement expenses, and certain advantages are given to owners. A notice given to the appellants, who were owners of premises fronting a street within the meaning of the 150th section, requiring

them to do certain sewering works within a prescribed period, and stating that if such works were not executed the urban authority would execute the same themselves at the appellants' expense, thus concluded: "And the said urban authority will thereupon also proceed to declare all costs, charges and expenses paid, expended or incurred by them in consequence of such neglect or default, to be private improvement expenses, and to enforce payment according to law" :

Held, that even assuming the notice to have been good, the concluding portion could not be treated as surplusage, and that it was not, therefore, competent for the urban authority, after their declared intention to treat the expenses incurred as private improvement expenses, to proceed against the appellants summarily for the recovery of such expenses.

CASE stated by Justices under 20 & 21 Vict. c. 43.

The appellants were summoned upon a complaint made by the Local Board for the district of Bacup, in the county of Lancaster, for that they, being owners of certain property situate in Underbank Street, within the district of the board, neglected and refused to pay upon demand to the said board the sum of 1131. 16s. 8d., being the amount awarded and apportioned by a certain award of an arbitrator and for expenses incurred by the said board in the doing of certain works in or near the said street, and also 611. 4s. 9d., the costs of the arbitration.

The summons was heard on the 7th of January, 1880, when it was proved that on the 17th of March, 1875, a notice purporting to be given under the Public Health Act, 1848 (11 & 12 Vict. c. 63), s. 69, was duly served on Thomas Hammerton, the owner of property fronting to, adjoining or abutting upon the said street called Underbank.

The following is a copy of the said notice so far as it is material :

"Local Board for the district of Bacup, in the county of Lancaster.

"To Mr. Thomas Edward Hammerton, of Todmorden, the owner of certain premises fronting, adjoining or abutting

Gould v. Bacup Local Board, Q.B. upon a certain street called Underbank, in the township of Newchurch, within the said district.

"Whereas the said street is not sewered and made good to the satisfaction of the above-mentioned local board, being the urban sanitary authority for the said district. And whereas your said premises front, adjoin or abut on certain parts of the said street which require to be sewered and made good. Now, there

fore, the said local board hereby give you notice, in pursuance of the statutes in that case made and provided, to sewer and make good the same within the space of one calendar month. . . . And take notice that in case you shall for the space of one calendar month from the service hereof neglect or refuse to comply with this notice, or to perform, execute and complete the works hereby required to be executed, or any of them, to the satisfaction of the said local board or their surveyor, the said local board will, in pursuance of the statutes in that behalf made and provided, proceed to execute, finish and complete the same at your expense. And the said local board will thereupon also proceed to declare all costs, charges and expenses paid, expended or incurred by them in consequence of such your neglect or default, to be private improvement expenses, and to enforce payment according to law."

The said Thomas Edward Hammerton took no steps in order to comply with the notice in his lifetime, and he died on the 25th of August, 1875, having appointed the appellants trustees and executors of his will, and having devised to them as such trustees the said property fronting to, adjoining or abutting upon Underbank as aforesaid.

On the 1st of August, 1875, the respondents proceeded to sewer the street mentioned in the notice, and they completed the works in January, 1876.

On the 14th of February, 1876, a notice purporting to be given under the Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 150, was by order of the board served upon the appellants, requiring them to level, pave, flag and channel the said street called Underbank. [The notice

was similar in terms to the one of March, 1875, supra.]

The appellants did not comply with the notice of the 14th of February, 1876, whereupon the respondents proceeded to execute the works, and they completed the same prior to the 4th of June, 1877.

In executing the works comprised in the notice of the 17th of March, 1875, and the 14th of February, 1876, the respondents incurred expenses amounting to 3861. 18s. 2d.

On the 4th of June, 1877, a notice of apportionment was made and served on the appellants as such trustees and executors as aforesaid purporting to apportion their share at the sum of 1131. 16s. 8d., being the amount sought to be recovered by the respondents, exclusive of the sum of 611. 4s. 9d.

On the 3rd of September, 1877, the appellants by notice disputed their liability to pay the apportioned amount, and in the same month a notice was duly served upon them requiring payment of the said sum.

On the 26th of April, 1879, the respondents gave proper notice to the appellants of the appointment of an arbitrator on their behalf touching the apportionment of the proportion of the said sum of 3861. 188. 2d. to be paid by the appellants in respect of the said works performed by the respondents.

The appellants did not appoint an arbitrator on their behalf according to the requirements of the Public Health Act, 1875, nor make any objection to the validity of the appointment by the respondents.

On the 19th of June, 1879, the arbitrator made his award, and awarded that there was due from the appellants to the respondents, as their proportion of the cost of the works, 1137. 16s. 8d., and ordered that the appellants should bear the costs of the reference, which were taxed at 611. 4s. 9d. Neither the appellants nor any witnesses on their behalf attended the reference.

On the 5th of September, 1879, payment of the said sums of 1137. 16s. 8d. and 617. 4s. 9d. was demanded from the appellants, who refused to pay the same.

Gould v. Bacup Local Board, Q.B.

At the hearing before the Justices the respondents contended that by section 180 of the Public Health Act, 1875, the award, which was duly made, was final against the appellants.

The appellants, inter alia (1), objected that the notice of the 17th of March, 1875, and the 14th of February, 1876, were invalidated by the notice with which the same concluded by reason of its being made thereby to depart from the Form G, in the Public Health Act, 1875, or that, if not, the respondents must be taken to have executed the works upon the footing of charging them as private improvement expenses, and therefore that they could not maintain their present demand, which was founded upon a totally different procedure.

The Justices overruled the objection, and made an order upon the appellants for the payment of the sums of 1137. 16s. 8d. and 61l. 4s. 9d.; and the question for the opinion of the Court was, whether they were right in so doing (2).

(1) Other objections were raised by the appellants, but they were not argued.

(2) The 69th section of the Public Health Act, 1848, under which the first notice was given, is, so far as material, identical with the 150th section of the Public Health Act, 1875 (38 & 39 Vict. c. 55), which repealed the former Act. The Act of 1875, section 150, provides that, "where any street within any urban district (not being a highway repairable by the inhabitants at large), or the carriage-way, footway or any other part of such street, is not sewered, levelled, paved, metalled, flagged, channelled and made good, or is not lighted to the satisfaction of the urban authority, such authority may, by notice addressed to the respective owners or occupiers of the premises fronting, adjoining or abutting on such parts thereof as may require to be sewered, levelled, paved, metalled, flagged or channelled, or to be lighted, require them to sewer, level, pave, metal, flag, channel, or make good or to provide proper means for lighting the same within a time to be specified in the notice. If such notice is not complied with, the urban authority may, if they think fit, execute the works mentioned or referred to therein; and may recover in a summary manner the expenses incurred by them in so doing from the owners in default, according to the frontage of their respective premises, and in such proportion as is settled by the surveyor of the urban authority, or (in case of dispute) by arbitration in manner provided by this Act; or the urban authority may by order declare the expenses so incurred to be private improvement expenses."

Cave (Forbes with him), for the appellants. The respondents have given notices purporting to be issued under 11 & 12 Vict. c. 63. s. 69, and 38 & 39 Vict. c. 55. s. 150, which contain substantially the same provisions. The last-mentioned section contains a form applicable to the present circumstances-see Schedule 3, Form G. There are really two distinct forms of procedure for the recovery of such moneys as these: first, by summary proceedings before Justices; secondly, by declaring them to be private improvement expenses, and following the machinery provided by the statute. Here the notices given were bad by the concluding notice, which was a departure from the Form G; and if not bad, the effect of the notices is, that the respondents must be taken to have elected to execute the necessary works upon the footing of charging them as private improvement expenses, and so they are bound by the notice, and cannot recover these moneys by summary procedure.

Edward Clarke and Glen, for the respondents. The addition of the concluding notice is mere surplusage, and does not amount to an election. Even if the expenses incurred must be considered as private improvement expenses, it was entirely at the option of the local board whether they would recover them by a

rate.

By section 213, "whenever an urban authority have incurred or become liable to any expenses which by this Act are, or by such authority may be declared to be, private improvement expenses, such authority may, if they think fit, make and levy on the occupier of the premises in respect of which the expenses have been incurred, in addition to all other rates, a rate or rates to be called private improvement rates, of such amount as will be sufficient to discharge such expenses, together with interest thereon, at a rate not exceeding five pounds per cent. per annum, in such period, not exceeding thirty years, as the urban authority may in each case determine. Provided that whenever any premises in respect of which any private improvement rate is made become unoccupied before the expiration of the period for which the rate was made, or before the same is fully paid off, such rate shall become a charge on and be paid by the owner for the time being of the premises so long as the same continue to be unoccupied." Sections 214, 215 and 240 contain certain provisions in favour of owners as regards the payment of private improvement expenses.

Gould v. Bacup Local Board, Q.B.

MANISTY, J.-I think that our judgment must be in favour of the appellants. Under the Public Health Act, 1848, no form was given; but section 150 of the Act of 1875 is substantially the same as section 69 of the older Act, the only difference being that in the later Act a form is given a difference which, in my judgment, in no way affects the question. Here the local board gave the appellants a notice requiring certain work to be done, and specifying that if such work was not done within a prescribed time the board would execute themselves the necessary works, and declare that the expenses incurred should be " private improvement expenses." Now, the 150th section of the Act of 1875 draws a clear distinction between the two modes of procedure: the second is an alternative of the first, but does not enable a board to go before the magistrates at all, or to recover private improvement expenses in a summary manner. All they can do is to adopt the procedure laid down in the 213th and two following sections, or else to adopt the procedure prescribed in the 240th section. Either of these two modes of procedure give important and substantial advantages to an owner. I am of opinion that the local board were bound by the notice they have given, and that it was not afterwards in their power to withdraw from the owners the benefit offered. Consequently, I think that the order of the Justices must be rescinded.

STEPHEN, J.-I am of the same opinion. The local board gave to the appellants certain notices under the Public Health Act, requiring certain works to be executed, and stating that if such works were not executed within a prescribed period to the satisfaction of the local board, they would execute the same themselves at the appellants' expense. Each notice continued and concluded thus: "And the said local board will thereupon also proceed to declare all costs, charges and expenses paid, expended or incurred by them in consequence of such neglect or default, to be private improvement expenses, and to enforce payment according to law."

Now, this was the notice they gave. Let us now consider its effect, and whether it was a valid notice. The section under

which the notice was given was the 150th section of the Public Health Act, which does not differ from the earlier Act, except in a matter not essential to the present enquiry. The 150th section permits the urban authority, in certain cases, to give notice to the respective owners or occupiers of premises fronting, adjoining or abutting on parts of streets which in the judgment of such urban authority require to be sewered, requiring them to do what is necessary within a time to be specified in the notice. The section thus continues: "If such notice is not complied with, the urban authority may, if they think fit, execute the works mentioned or referred to therein; and may recover in a summary manner the expenses incurred by them in so doing from the owners in default, according to the frontage of their respective premises, and in such proportion as is settled by the surveyor of the urban authority, or (in case of dispute) by arbitration in manner provided by this Act; or the urban authority may by order declare the expenses so incurred to be private improvement expenses." Now, the 150th section makes it imperative that the notice should have been given to sewer the street. But the notice which was given does not require the appellants to sewer the street in absolute terms. It merely says, "You, the appellants, are to sewer the street, and if you do not, we shall treat the expenses incurred as private improvement expenses." Mr. Clarke, in his clear argument, contended that the latter portion was altogether nugatory; but to treat it as being of no effect would, in my judgment, be altogether inequitable. There are two distinct modes of procedure laid down in the statute for the recovery of the expenses: the first mode is by summary procedure; the second is by declaring the expenses incurred to be private improvement expenses, which may be recovered either by means of a rate or a rent-charge; but in either of the latter cases the owner is placed in the advantageous position of being saved one-fourth of the cost. notice given was not, in my judgment, such as was required by the statute, or, if it was, it contained terms which estop

The