Local Government-Nuisance—Privies -Cleansing Undertaken by Local Authority Failure to Eradicate Fever Germs-Substitution of Water-closets Duty of Local Authority-Public Health Act, 1875 (38 & 39 Vict. c. 55), ss. 42 and 94. Where a local authority has taken upon itself, under section 42 of the Public Health Act, 1875, the cleansing of privies belonging to cottage property, but has, after notification of an outbreak of typhoid fever, failed to eradicate fever germs which have penetrated crevices in the brickwork and cause a nuisance, such authority cannot under section 94 call upon an owner of the property to abate the nuisance by abolishing privies and substituting water-closets. The word "cleansing" in section 42 has a wide meaning, and includes removal of matter which causes the nuisance. upon Case stated by a Court of quarter sessions their dismissal of an appeal by an owner of cottage property against an order of a Court of summary jurisdiction, upon complaint of a sanitary inspector, under section 95 of the Public Health Act, 1875, requiring him to comply with a notice dated May 6, 1897, of an urban sanitary authority under section 94 of the Act, to abate a nuisance of foul and offensive privies and ashpits existing at five cottages, and for that purpose to abolish the privies and in lieu thereof to provide and fix sufficient water-closets with efficient flushing cisterns and to properly drain such water-closets, also to convert the ashpits into covered and paved places for the reception of ashes. The cottages in question were built in 1888, and had as outdoor conveniences separate closets or privies for each house, with one ashpit for every two privies. In March and October, 1896, previous to the appellant becoming owner, cases of typhoid fever occurred in each of the five cottages. The excreta from the patients, containing typhoid-fever germs, were at first put into the privies, and this was known to the sanitary authority, who subsequently supplied covered pails. The sanitary authority had previously to the outbreak of fever undertaken the cleansing of these privies within section 42 of the Act. There was no record of any cleansing immediately on the notification of any case of fever, but the sanitary inspector personally superintended a special cleansing and disinfecting on September 22 and 23, 1896, and on receipt of each of the notifications of disease gave instructions to have the pits cleansed and disinfected, which were carried out. The Court bacteriological examination that the fever of quarter sessions were satisfied from the germs existed in the soil between the crevices of the brickwork of the privies at the date of the notice of May 6, 1897; that these germs would penetrate brickwork and, in time, concrete; that the measures taken by the sanitary inspector had failed to destroy them; but that measures could have been taken at the which would probably have destroyed the time when the privies became infected fever germs. The appellant contended at quarter sessions: (a) That by virtue of section 42 there was a duty on the sanitary authority to cleanse the privies; (b) that they had failed to discharge that duty; (c) that upon the true construction of section 94 the owner did not become liable, unless the person could not be found by whose act, default, or sufferance the nuisance arose or continued; (d) that the nuisance did not arise or continue by the act, default, or sufferance of the appellant, who became owner on May 4, 1897, a few days before the notice was served, and without knowledge of the previous existence of typhoid fever; but that by virtue of the duty imposed on them by section 42 the sanitary authority were the persons by whose act, default, or sufferance the nuisance arose or continued. The respondent contended (a) that the foulness and offensiveness of the privies, owing to the presence of typhoid germs. in the structure thereof, constituted them a nuisance within section 91. (b) that the authority had fulfilled their duty under section 42 in periodical and special cleansing, BARNETT V. LASKEY. and if they had failed the appellant's remedy was under section 43 by action; that if the authority were satisfied as a fact that the nuisance existed, and that the works proposed were proper to abate it, the owner was the person to whom they must look, under section 94 and the proviso thereto. The Court of quarter sessions held as a matter of law that the appellant was liable as owner under the Act to abate such nuisance, and dismissed the appeal. Bosanquet, Q.C., and Samuel Pope, for the appellant.-Measures could have been taken by the local authority some eighteen months before they were taken to eradicate the fever germs, and in postponing measures which would then have been effectual the local authority have not discharged their duty under section 42. This being so, they had no power to take proceedings against the owner under section 94 for want of structural convenience. The nuisance arose not by the default of the owner but by that of the local authority in failing to discharge their dutyThames Conservators v. Port Sanitary Authority of Port of London [1893]1 and Fordom v. Parsons [1894].2 Danckwerts, for the respondent.—The word "cleansing" in section 42 does not mean disinfecting. The local authority may do all reasonable things to abate a nuisance, but no more. The true origin of the nuisance here is the privies themselves, which, owing to their being privies and to their construction, permitted the germs to penetrate the brickwork. The privies ought to have been concreted. The nuisance continues owing to their defective construction. With regard to section 94, the first proviso clearly carries the local authority over the difficulty, for the nuisance is due to the defective construction of a structural convenience, and the notice is properly served on the owner, who should replace the privy by the water-closet system-Saunders v. Holborn District Board of Works [1894],3 St. Helens Chemical Co. v. St. Helens Corporation (1) 63 L. J. M.C. 121; [1894] 1 Q.B. 647. (2) 64 L. J. M.C. 22; [1894] 2 Q.B. 780. (3) 64 L. J. Q.B. 101; [1895] 1 Q.B. 64. [1876], and Kirkheaton District Local Board v. Ainley, Sons & Co. [1892].5 Bosanquet, Q.C., replied. LORD RUSSELL OF KILLOWEN, C.J.-It is not without some doubt that I come to the conclusion that our judgment must be for the appellant; and I begin by saying that I do not think the cases cited have any direct bearing or throw any valuable light on the case before us. The circumstances here are that the Urban Sanitary Authority of Eccles on May 6, 1897, served the appellant with a notice reciting that they were satisfied of the existence of a nuisance arising from foul and offensive ashpits and privies connected with certain cottage property belonging to him, and requiring him within fourteen days to abate the same, and for this purpose to abolish privies and in lieu thereof supply proper water-closets. The matter came before the Justices in quarter sessions, and they arrived at the conclusion that the appellant was liable as owner, and bound to comply. They accordingly made the order in the terms of the notice, subject to the present Case. Upon the argument of this Case we have power to draw inferences of fact and say whether the order of the Court of quarter sessions can be supported. The facts are these: In March and October, 1896, cases of typhoid fever occurred in several of the houses. These were notified to the authority, but there is no reasonable doubt that before the notification reached them typhoid germs had effected a lodgment in the privies at the backs of the houses. What was the relation of the authority to these ashpits and privies? Under section 42 of the Public Health Act, 1875, the local authority are not bound to undertake the cleansing of privies and ashpits, but they may do so. In the present case the authority had undertaken this particular duty of cleansing, and the Case finds what took place and what they did. I agree with counsel for the respondent that upon the findings it may be properly assumed that typhoid germs had existed in the privies prior to notification of the outbreak of fever; but I cannot give the (4) 45 L. J. M.C. 150; 1 Ex. D. 196. BARNETT V. LASKEY. narrow construction to the section he contends for. He says that "cleansing," in section 42, does not cover disinfecting. But the word "cleansing," as there applied, has, in my judgment, a wide meaning, and includes removal of all matter which causes the nuisance, and it is admitted in the Case that these bacteria form a nuisance. The question comes to this: Could or could not the sanitary inspector, by taking proper steps, have destroyed those germs? Was or was not his failure to do so a breach of duty? In my opinion he might have done better if his knowledge had been greater; he might have done something effectual. If the sanitary inspector had, in the first instance, been as well informed as he is now with regard to the method of dealing with fever germs, he would have had no difficulty in doing something effectual which would have destroyed them. As it was, no effectual cleansing within the contemplation of section 42 has been accomplished, and in this respect the local authority have not effectually discharged their duty. I now proceed to consider section 94, which is as follows: "On the receipt of any information respecting the existence of a nuisance the local authority shall, if satisfied of the existence of a nuisance, serve a notice on the person by whose act default or sufferance the nuisance arises or continues." I pause there, because it is clear that to give the authority jurisdiction there must be a notice served on the person in default. As to this, there is no reason for saying that the appellant was the person who caused the nuisance to arise; there is no suggestion in the Case that he knew anything about it. Upon the earlier part of the section, therefore, there seems to be no default fairly to be fixed on the appellant. I now come to the main contention of the respondent, based upon the following proviso to the section: "Provided, first, that where the nuisance arises from the want or defective construction of any structural convenience, ... notice under this section shall be served on the owner." It is said that the case comes within these words; but I find it difficult to say that this nuisance arose from structural defect or inconvenience. It arose from excreta not effectually removed. The most important consideration is, Was this a case of structural default? The authority undertook to cleanse inter alia privies and ashpits; they might have said in the first instance that they would not do it because the structures were such that fever germs might get a hold upon them. There is no evidence in the case that qua privies and qua ashpits these were not constructed in the usual manner with all the adjuncts which belong to such structures. What, then, was the structural defect? Counsel for the respondent says they ought to have been concreted; but there is no evidence that this is usual or would have prevented the penetration of these germs; on the contrary, it appears that in time they would even get through concrete. Therefore no nuisance arose from the structural character of the privies. The Legislature has nowhere condemned the use of the privy system. What we are dealing with here is a charge of defective construction under section 94; and in my judgment the Court of quarter sessions were wrong in holding that any such defect existed in the present case as to warrant their order. I see nothing whatever to prevent the local authority themselves taking such steps to abate the nuisance as would involve no structural alteration, and so to remove the germs without substituting the water-closet for the privy system. WILLS, J.-I have arrived at the same conclusion on substantially the same grounds. Here the local authority have, on their own undertaking, under section 42, to keep the privies clean, and it is no answer to say that where cleansing under the section amounts to disinfecting they can call upon the owner to substitute the water-closet for the privy system. From the Case it appears that eighteen months ago these germs had got so far into the brickwork that the liquid stuff used as a disinfectant could not follow them. After these eighteen months had elapsed, the authority awoke to the fact that they had not been successful; but the appellant was not the person by whose act or sufferance the nuisance continued. As to the first proviso to section 94 if the nuisance arose from Criminal Law Jurisdiction - False Pretence in Scotland-Goods Obtained in England on Credit-Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 11, sub-s. 13; 8. 13, sub-8. 1. Where a person makes a false representation in Scotland which induces the person to whom it is made to supply him with goods on credit in England, the person making such representation may be properly tried in England upon an indictment charging him with offences under section 11, sub-section 13, and section 13, sub-section 1 of the Debtors Act, 1869. Case stated by Day, J. The prisoner was charged before Day, J., at the Durham Summer Assizes, under section 11, sub-section 13 of the Debtors Act, 1869, that he having been adjudged a bankrupt and within four months next before the presentation of a bankruptcy petition against him did in the county of Durham unlawfully by false representation obtain certain property from Messrs. Arthur & Co., Lim, of Glasgow, amount ing in the whole to 1,7267. 158. 10d. on credit, and has not paid for the same. The prisoner was also charged under section 13, sub-section 1 of the Act that he between August 31, 1897, and November 18, 1897, in the county of Durham, Coram, Lord Russell of Killowen, C.J., Hawkins, J. Wills J, Wright, J., and Bruce, J. in incurring certain debts or liabilities of various sums, amounting in all to the sum of 1,7267. 158. 10d. to Messrs. Arthur & Co., Lim., of Glasgow, did unlawfully obtain credit under certain false pretences, to wit, for that he falsely represented to Mr. J. R. Kay, one of the directors of Messrs. Arthur & Co., Lim., that he took stock at the end of December, 1896, that such stock was very near 3,500l. in value, that his liabilities were 1,4007., that he gave no credit, that he had 100%. of his own, that he had a large shop that cost him 4007, bought through a building society, to be repaid in thirteen years by monthly instalments of 31. 14s., that his rent and taxes would come out about 100%. per annum, including the building society. Both charges referred to the same goods, and the evidence in respect of both charges was the same. T. G. Noble, the representative at Newcastle and Gateshead of Messrs. Arthur & Co., of Glasgow, proved that he opened an account with the prisoner, who then carried on business as a draper at Gateshead, in the county of Durham, in July, 1896, and from that date until July, 1897, various orders were booked for the prisoner and executed; that in July, 1897, he began to be afraid to give the prisoner further credit without the instructions of his principals in Glasgow; that he arranged that the prisoner should have an interview with his principals for the purpose of informing them as to his financial position, which interview took place on September 1, 1897, at Glasgow; that no representations of any kind were made to him or in his presence; that after the interview of September 1, 1897, he received instructions from his principals to continue to supply the prisoner, and the prisoner also informed him that the interview had been satisfactory both to his principals and to the prisoner; that in consequence of these instructions and the prisoner's statement he took samples to the prisoner in Gateshead, booked orders there, and transmitted most of the orders to Glasgow to be executed, but that some of them were executed at Gateshead and the goods delivered there by his porters; that the goo ds supplied in pursuance of such orders were the subject of the charges against the prisoner. REGINA v. ELLIS, C.C.R. John R. Kay, the managing director of Messrs. Arthur & Co., proved that he had an interview with the prisoner in Glasgow on September 1, 1897; that the prisoner made to him the representation alleged in the charge; that the interview was the only interview he had with the prisoner, and the only representations made to him were made verbally and at that interview; that in consequence of the representations then made, he gave instructions to Mr. Noble to continue to take orders from the prisoner. Evidence was also given to prove that the representations were false, and that the prisoner knew that they were false, and that he presented a bankruptcy petition against himself on December 23, 1897, and that he was adjudged a bankrupt on the same day. There was no evidence to shew whether the carriage of the goods sent from Glasgow was paid by Arthur & Co. or by the prisoner. The jury returned a verdict of guilty. At the close of the case for the prosecution, counsel for the defence took the objection that the offence was completed in Glasgow and that no part of the offence was committed in the county of Durham, and that there was no jurisdiction. The question for the opinion of the Court was whether the prisoner could be indicted and tried for the offences, or for either of them, in the county of Durham. Shortt, for the prisoner.-Every representation made by the prisoner was made in Glasgow, and Reg. v. Martin [1867] shews that the real question is whether the fraud was continuing at the time when the goods were obtained. If there is no evidence that it is continuing, the goods are not obtained by fraud. In the present case all the goods were obtained in Gateshead subsequently to the representations. As to the charge founded upon section 13, sub-section 1, the credit was clearly obtained in Glasgow. The incurring of the debt or liability is no part of the offence. It is the obtaining the credit which constitutes the offence. In Reg. v. Dawson [1888] 2 the prisoner, (1) 36 L. J. M.C. 20; L. R. 1 C.C.R. 56. (2) 16 Cox C.C. 556. an undischarged bankrupt, had obtained credit in the county of Suffolk, and it was held that the indictment was wrongly laid in the county of Lincoln, where part of the goods was disposed of. The credit here was given by the principals in Glasgow, and when they sent their instructions to their agent the offence was complete. H. Sutton, for the Crown.-The conviction was right. Reg. v. Leech [1856] 3 shews that, in a case of a false pretence contained in a letter, the letter speaks continually until it is received. In Reg. v. Holmes [1883] a letter containing a false pretence was written and posted by the prisoner at Nottingham to a person in France, which induced the latter to send the prisoner a draft for 150l. The draft was received by the prisoner in Nottingham, and it was held that there was jurisdiction to try the prisoner there. In the present case every material element of the offences charged took place in Gateshead. The credit and the goods were obtained there, and the debt was incurred there, although the false representations were made in Glasgow. Reg. v. Jones [1850] 5 shews that where money is obtained by means of false pretences contained in a letter, the prisoner is triable in the county where the letter containing the money is posted Alderson, B., cited Rex v. Buttery, referred to by Abbott, C.J., in Rex v. Burdett [1820],7 to shew that the offence consists in obtaining the money. Section 12 of the Criminal Law Act, 1826 (7 Geo. 4. c. 64), which provides that any felony or misdemeanour begun in one county and completed in another may be tried in either county, is applicable to the present case. Shortt replied. Cur. adv. vult. Nov. 24.-WILLS, J., read the following indicted judgment: The prisoner was at the Durham Summer Assizes, 1898, under section 11, sub-section 13 of the Debtors Act, 1869, for that he, having (3) 7 Cox C.C. 100. (4) 53 L. J. M.C. 37; 12 Q.B. D. 23. (5) 1 Den. C.C. 551. (6) Not reported. (7) 3 B. & Ald. 717; 4 B. & Ald. 95 |