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PART III.

PROCEDURE.

THE service of notices, summonses, and orders under 18 & 19 Vict. c. 121, is provided for by sec. 31, on which sufficient observations have already been made.

To facilitate proof of resolutions the 32nd section enacts that "copies of any orders or resolutions of the local authority or their committee, purporting to be signed by the chairman of such body or committee, shall, unless the contrary be shown, be evidence thereof, without proof of their meeting, or of the official character or signature of the person signing the same." The meaning is, that papers purporting to be copies, &c., and to be signed by the chairman, shall be evidence, without proof, &c.

When one nuisance has been caused by the joint act or default of several persons, and proceedings are to be taken under this Act, in respect of it, by the local authority, all such persons may be included in one complaint, and in one summons, and the justices may make an order therein upon all or any of the persons included in the summons, and distribute the costs as to them may appear fair and reasonable (sec. 33). Proceedings under this Act against several persons shall not abate by reason of the death of any among the persons so included, but all such proceedings may be carried on as if the deceased person had not been

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originally included (sec. 39). If, however, two or more persons are answerable, being owners or occupiers of premises, or partly the one or partly the other, in respect of their being such owners or occupiers, jointly, or in common, or severally, to any demand or complaint under this Act, it shall be sufficient to proceed against any one or more of them without proceeding against the others or other of them (sec. 34). But nothing in the Act contained shall prevent the parties so that is, without the other or others of them-proceeded against from recovering contribution in any case in which they would now be entitled to contribution by law (Ib.)

It will be sufficient in any proceeding under this Act, whether written or otherwise, in which it shall become necessary to mention or refer to the owner or occupier of any premises, to designate him as the "owner" or "occupier" of such premises, without name or further description (sec. 35). The designation without name or further description is to be preferred when applicable, the provisions of the previous section (sec. 34) making it quite safe.

Whoever refuses to obey an order of justices under this Act for admission on premises of the local authority or their officers, or wilfully obstructs any person acting under the authority or employed in the execution of this Act, shall be liable for every such offence to a penalty not exceeding five pounds (sec. 36).

On reference to the 11th section it will be perceived that when there is a person having possession of the premises, the justices have not jurisdiction to authorize the local authority or its officers to enter the premises.

If the occupier of any premises prevent the owner thereof from obeying or carrying into effect the provisions of this Act, any justice to whom application is made in this behalf shall by order in writing 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 this Act; and if within twentyfour hours after the service of such order the occupier against whom it is made do not comply therewith, he shall be liable to a penalty not exceeding five pounds for every day afterwards during the continuance of such non-compliance (sec. 37).

The schedule contains a form (G.) of an order on the occupier to permit the execution of works required to be executed, and from it the form of summons may be easily framed.

Penalties imposed by this Act for offences committed and sums of money ordered to be paid under this Act may be recovered by persons thereto competent in England according to the provisions of the Act of the eleventh and twelfth years of the present reign, chapter forty-three; and all penalties recovered by the local authority under this Act shall be paid to them, to be by them applied in aid of their expenses under this Act (sec. 38).

The schedule contains forms (H. I. K.) of a summons, or for payment, and distress warrant, but they apply to sec. 20 only. Under the 38th section the provisions of the 11 & 12 Vict. c. 43, are to be adopted.

No order, nor any other proceeding, matter, or thing done or transacted in or relating to the execution of this Act, shall be vacated, quashed, or set aside for want of

form, nor shall any order, nor any other proceeding, matter, or thing done or transacted in relation to the execution of this Act, be removed or removable by certiorari, or by any other writ or process whatsoever, into any of the superior courts; and proceedings under this Act against several persons included in one complaint shall not abate by reason of the death of any among the persons so included, but all such proceedings may be carried on as if the deceased person had not been originally so included (sec. 39).

It will be seen by the next section that a certiorari is allowed where the quarter sessions state a

case.

In a case already referred to an appeal against an order of justices was entered and respited to the next sessions; but, when called on, the sessions held that they had no jurisdiction to hear it; and the justices, in petty sessions, subsequently made a second order upon the corporation to pay £20 and £50 penalties for disobedience under sec. 14. The Queen's Bench having held that the first order was not the subject of appeal, held that neither of the orders could be brought up by certiorari under sec. 39. Ex parte the Mayor of Liverpool, 8 E. & B. 539; 27 L. J. M. C. 89, s. c.

The language of the 39th section, "done or transacted in relation to the execution of this Act,” is peculiar, but it is apprehended that it gives no protection to acts done without jurisdiction. In Foster v. Hornsby, 2 Ir. Eq. Rep. N. S. 420, an Act of parliament, under which certain commissioners derived authority, provided that it should not be lawful for any person whatever in any manner to question or appeal against or in respect of anything whatsoever done or omitted to be done by the said commissioners under the provisions of

certain recited Acts and that Act, nor should any proceeding to be had or taken by or on behalf of the commissioners for the purposes of the said Acts, be removed or removable by certiorari into any of her Majesty's courts of record. Held (following the decision in Sharpley v. Hornsby, 4 Ir. Jur. 38), that the provision applied only to questions of procedure, and afforded no protection where the commissioners exceeded their jurisdiction.

Appeals are to be made to the court of quarter sessions held next after the making of the order appealed against, unless there be not time to give the notice and enter into the recognizance hereinafter mentioned, in which case the appeal may be made to the next sessions at which it can be heard. To entitle the appellant to be heard in support of the appeal, he must, within fourteen days after the making of the order appealed against, give notice in writing to the local authority, stating his intention to bring such appeal, together with a statement in writing of the grounds of appeal; and at the hearing of the appeal no grounds of appeal shall be gone into or entertained other than those set forth in such statement. Within two days after giving the notice the appellant must enter into a recognizance before some justice of the peace, with sufficient sureties, conditioned to try the appeal at the said court-that is, the next court of quarter sessions at which the appeal can be heard-and to abide the order of and pay such costs as shall be awarded by the justices at such court or any adjournment thereof; and the said court, upon hearing and finally determining the matter of the appeal, may, according to its discretion, award such costs to the party appealing or appealed against