ration depends upon the intention of the Legislature in imposing a penalty upon a baker for using a forbidden mixture or ingredient in his bread, according to the 8th section of this Act. By the following section a penalty is imposed upon any person who shall "knowingly sell or offer, or expose for sale, either separately or mixed, any meal or flour of one sort of corn or grain as the meal or flour of any other sort of corn or grain, or any ingredient whatsoever mixed with the meal or flour so sold or offered or exposed for sale." I think these two sections must be taken together; and, so taking them, the user of the 8th section must be with a guilty knowledge to justify a conviction. Sect. 13 gives a remedy to a master against his servant for any wilful act of the servant by which the master may be brought within the provisions of the statute; but I do not think it was contemplated that a baker should be convicted, when both he and his servants were innocent of any intention to use these ingredients. The magistrates have here acquitted the appellant of guilty knowledge, and they seem to me to have also acquitted the servant.

HANNEN, J.-I am of the same opinion. I think the meaning of the 8th section is, that if a baker uses alum or any other adulterating ingredient, and knows that he is using it, or, if he uses it and his servant is aware of it, he or his servant may be convicted; but if there be an utter absence of knowledge on the part of both the baker and his servant, neither of them can be said to use the ingredient so as to render him liable to the penalties imposed. I think a baker cannot be answerable for what may be an accident or the fault of someone over whom he has no control. I am the more inclined to adopt this view in consequence of the provisions alluded to by my brother Lush concerning a master's liability for his servant's acts, and his remedy against his servant; and also in consequence of the penalty of publication imposed upon a breach of this 8th section, which goes far to show that the Legislature contemplated it as something disgraceful. Judgment for appellant. Attorneys for appellant, Chester and Urquhart, for Taylor and Son, Bolton.

Attorney for respondent, C. E. Abbott, for R. G. Hinnell, Bolton.

CAUDWELL (app.) v. HANSON (resp.). Metropolitan Building Act 1855 (18 & 19 Vict. c. 122), s. 51-Owner-Liability for district surveyor's fees. The appellant was owner in fee of land within the district of the Metropolitan Building Acts, of which he agreed, in Feb. 1870, to give to one Loud, a builder, a lease, from Sept. 1865, for ninety-nine years, at a peppercorn rent, until June 1870, and at 281. a year afterwards. The lease was to be made as soon as certain houses to be built by Loud were covered in, which it was agreed should be done by March 1870. On the 26th Oct. 1870 the respondent, the district surveyor, sent to Loud his proper bill for fees under sect. 51 of the Metropolitan Building Act 1855 (18 & 19 Vict. c. 122). These fees were not paid, and Loud became insolvent. respondent, in March 1871, delivered his bill for fees to the appellant, as owner, and upon his refusal to pay, obtained a summary conviction against him for the amount.

The

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Held, upon a case stated by the magistrate, that the appellant was not owner of the buildings so erected within the meaning of that section at the time the respondent's fees became due.

THIS was a case stated by one of the magistrates of the police courts of the metropolis, sitting at the Wandsworth police court, in the county of Surrey, and within the metropolitan police district, under the statute 20 & 21 Vict. c. 43, on the application in writing of the appellant, who was dissatisfied with his determination upon the question of law which arose before him, as hereinafter stated, on the 3rd May 1871, at the Wandsworth police court aforesaid, the appellant having duly entered into a recognisance to prosecute the appellant.

Upon the hearing of a certain complaint preferred by the respondent, the district surveyor for the district of North Battersea, in the county of Surrey, within the said metropolitan police district, against the appellant, under sect. 51 of the 18 & 19 Vict. c. 122 (the Metropolitan Buildings Act 1855), for that the appellant did unlawfully neglect and refuse to pay to the respondent the sum of 81. 10s., due to the respondent by the appellant, for the respondent's fees in respect of certain buildings, of which the appellant was owner, within the respondent's said district; a proper bill, specifying the amount of the same, having been duly delivered to the appellant.

The magistrate ordered the appellant to pay to the respondent the said sum of 81. 108.

The following facts were either proved or admitted by both parties:

The appellant is, and was at all the times hereinafter mentioned, seised in fee of an estate within the parish of St. Mary, Battersea, in the county of Surrey, called the Clapham Junction Estate, which he has laid out for building purposes.

The defendant is, and was at all the times hereinafter mentioned the district surveyor for the district of North Battersea, in the said county of Surrey, within which district the said Clapham Junction Estate is situate.

By an agreement dated the 18th Feb. 1870, made between the appellant of the one part and one James Loud of the other part, the appellant, in consideration of the rents, covenants, and agreements thereinafter agreed to be paid and performed, agreed with Loud that when and so soon as he, Loud, should have erected and covered in with slates or tiles the messuage, tenement and outbuildings upon each of the several plots of ground thereinafter described to the satisfaction of the appellant's surveyor for the time being, he, the appellant would demise by separate leases, as thereinafter mentioned, unto Loud or his nominee or nominees four several plots of ground situate on the south side of Livingstone-road, being portions of the said Clapham Junction Estate, delineated in the plan of the said estate and numbered 107, 313, 314, 315; and also the four several messuages or tenements and outbuildings to be erected and built thereon by Loud for the term of 99 years from the 29th Sept. 1865, at the rent of a peppercorn, until the 24th June 1870, and from thence at the yearly rent of 281. during the remainder of the said term, clear of all taxes except property tax. Loud thereby also agreed that he would at his own cost, under the inspection and to the satisfaction of the appellant's surveyor, erect and build upon each of the said several plots of land a good and substantial messuage or tenement, with out-offices, to be

severally erected and roofed in by the 25th March 1870, and completely finished fit for habitation by the 24th June, 1870. The said agreement contained all usual clauses, and is to be taken as forming part of this case for reference if necessary.

Shortly after the date of the said agreement, Loud commenced the erection of the said four houses, and proceeded therewith, but the same were not completed within the time provided by the said agreement, and the appellant extended the time for such completion from time to time.

The said houses were roofed in, in or about the month of Sept. 1870. The same were duly_surveyed by the respondent, who delivered to Loud on or about the 26th Oct. 1870, being one clear month after the roofs of the said four buildings respectively had been covered in, a proper bill specifying the amount of his fees in that behalf, amounting to 8l. 10s., for surveying the same, pursuant to the statute: but Loud did not pay the same, or any part thereof, and subsequently effected an arrangement with his creditors under the provisions of the Bankruptcy Act 1869.

On or about the 6th March 1871, the respondent duly delivered to the appellant, as the alleged owner of the said four houses, a proper bill, specifying the amount of his fees for surveying the same, which fees the appellant refused to pay.

On the part of the appellant it was contended that Loud was the owner of the buildings so erected by him, and in respect of which the respondent's fees were incurred, within the meaning of the statute, and that the appellant was not the

owner.

On the part of the respondent it was contended that the appellant was in the receipt of the rent and profits of the said buildings at the time when the respondent's services were performed, and that he was the owner thereof within the meaning of the statute, so as to be liable to the payment of the respondent's fees in respect thereof.

The magistrate, being of opinion that the respondent's contention was right, gave his determination against the appellant in the manner before stated.

The question of law upon which the case is stated for the opinion of the court therefore is, whether the appellant was the owner of the buildings in respect of which the respondent's fees were incurred, within the meaning of sects. 3 and 51 of the Metropolitan Building Act 1855.

If the court should be of opinion that the appellant is liable to pay such fees as aforesaid, then the said order is to stand; but if the court should be of the contrary opinion, then the said order is to be set aside, and the said complaint is to be dismissed.

66

Waddy argued for the appellant.-By the interpretation clause, sect. 3, of the Metropolitan Building Act 1855 (18 & 19 Vict. c. 122), the word owner" shall apply to every person in possession or receipt either of the whole or of any part of the rents or profits of any land or tenement, or in the occupation of such land or tenement other than as a tenant from year to year or for any less term, or as a tenant at will. And by sect. 51, at the expiration "of one month after the roof of any building surveyed by any district surveyor under this Act has been covered in, the district surveyor shall be entitled to receive the amount of fees due to him from the builder employed in erecting such building, or in doing such work,

[Q. B.

or in doing any matter in respect of which any special service has been performed by the surveyor, or from the owner or occupier of the building so erected or in respect of which such work has been done or service performed; and if any such builder, owner, or occupier refuses to pay the same, such fees may be recovered in a summary manner before a justice of the peace, upon its being shown to the satisfaction of such justice that a proper bill specifying the amount of such fees was delivered to such builder, owner, or occu pier, or sent to him in a registered letter addressed to his last known residence." It was held in Tubb v. Good (L. Rep. 5 Q. B. 443; 22 L. T. Rep. N. S. 885) that "owner" in this section meant owner for the time being when the fees became due. It appears from the case that these houses were roofed in before the 26th Sept. 1870, and it was not until the 29th of that month that the appellant was entitled to anything more than a peppercorn rent. The case of Evelyn v. Whichcord (E. B. & E. 126) decided that under this section an owner of land in fee simple who lets it on a building lease at a peppercorn rent is not liable as owner to the surveyor for fees in respect of buildings afterwards erected on such land, a peppercorn rent not being within the meaning of the words "of the whole or of any part of the rents or profits of any land or tenement in the interpretation clause, sect. 3. Loud was clearly not only the builder but the owner, popularly speaking, of the house. The general words in the interpretation clause are qualified by the particular words in the section. Where a section in the Act deals only with buildings, and does not refer in any way to land, the word "owner," if used in it, must be limited in its application to buildings only. [HANNEN, J.-There is nothing in the case to show that the surveyor's work was done before the 29th Sept.; although he cannot recover his fees until a month after a house is roofed in, he may, it seems, survey the house the day before he sends his proper bill. LUSH, J.-The surveyor's duty is to the public, and he has to inspect all buildings throughout their construction: sect. 39.]

W. B. Cooper for the respondent.-I admit that if a lease had been granted to Lond before the building works commenced, the builder would, upon the authority of Tubb v. Good, have been the only person who could have been made liable. Here, however, there is nothing but an agreement for a lease upon a condition which the case finds has not been fulfilled. It is not right that the surveyor should have to consider the equities between the parties. The only question is, who was the legal owner? Loud certainly is not and never was. [LUSH J.-It may be that the interpretation clause meant that the "owner" should be the person who was entitled to receive rents and profits, and not necessarily the person who had the legal title.] The appellant being owner of the land was also owner of the houses upon it: in any case, even under the agreement, he was entitled to rent on the 29th September, and it was not until the respondent could deliver his bill that he was entitled to receive his fees.

Waddy was heard in reply.

LUSH, J.-I am of opinion that the appellant is entitled to our judgment. I think he was not at the time when these fees became due the owner "of the building so erected, or in respect of which such work has been done or service performed,"

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application, and the provisions of the said statute, stated and signed the following case:

The respondents are (by the council of the said borough) the local board of health for the district of the borough of Bolton in the county of Lan

caster.

The appellant was in the year 1857, and hath since continued the owner, within the meaning of the Public Health Act 1848, of certain premises abutting upon a private street, within the district aforesaid, called Markland-street.

The respondents alleged that the said street, not being sewered, levelled, paved, flagged, and channelled to the satisfaction of the respondents, they, as such local board of health and in force of the Public Health Act 1848, s. 69, gave the appellant and other owners notice in that behalf that the board required them to do such sewering and other works before the 1st Sept. then next.

The magistrate found as facts that such notice was duly served upon the appellant in July 1858, that he made default, that the respondents executed the works, and that the surveyor duly apportioned the costs of such execution among the respective owners, including therein the amount of the appellant's proportion thereof, which was in the whole the sum of 13l. 6s. 8d.

The works were completed by the respondents on the 30th Nov. 1860, and the apportionment on 21st Jan. 1861, and on the last mentioned day the respondents delivered to the appellant an account of his proportion of the said costs, which account was in the words and figures following:

Treasurer's Office, Acre's-field, Bolton, 21st Jan. 1861. Mr. Nathaniel Wilson, St. George's-road, to the Mayor, Aldermen, and Burgesses of the Borough of Bolton. Notice,-Unless the amount of this account is paid within fourteen days after delivery, interest at the rate of 51. per cent. per annum will be charged thereon until fully liquidated.

Markland-street.

On the 25th July 1870, the said local board of health resolved and declared that the said amonnt of 131. 6s. 8d. should be private improvement expenses.

On the 4th Sep. 1870, the respondents, at a meeting of the council, as such local board, under the 23rd section of the Local Government Act 1861, declared that the said expenses should be paid by annual instalments of 61. 13s. 4d,, with interest after the rate of 51. per centum per annum; the first payable on the 15th Sept. 1870, and the last on the 15th Sept. 1871.

On the 12th Jan. 1871, the respondents caused a demand in writing to be served upon the appellant, requiring him to pay 67. 13s. 4d., the amount of the said first instalment of the said expenses, within fourteen days of such notice.

On the expiration of the said fourteen days, the respondents caused application for the payment of the said 61. 13s. 4d. to be made to the appellant, but he refused to pay, and the respondents then procured the summons hereinbefore set forth to be issued and served.

On the hearing of the said summons it was objected by the attorney for the appellant that, as the works had been completed and the apportionment made so long ago as the years 1860 and 1861, the lapse of time prevented the respondents from now recovering the amount, inasmuch as the 11th

[Q. B.

section of 11 & 12 Vict. c. 43, deprived the justices of jurisdiction after the expiration of six calendar months from the date of apportionment of the expenses, being the time when the matter of complaint arose; and he also contended that as, if the amount had been sought to be recovered in a summary way, proceedings must have been commenced within six months of the cause of complaint arising, so a similar limitation must be held to apply where, under the same section, the local board elected to treat the amount as private improvement expenses.

The said appellant, by his attorney, also objected that the statutes of limitation would also be a bar to the recovery of this claim.

Considering that it was competent to the said board to declare the aforesaid expenses private improvement expenses on the 20th Aug. 1870, and that the Statute of Limitations did not apply, the justices overruled both these objections, and made an order for payment by the appellant to the respondents of 61. 138. 4d., the amount of the said first instalment. Subject, however, to the opinion of this court as to whether such judgment was thereby erroneous in point of law on any of the grounds hereinafter stated.

The questions for the opinion of the court are, whether it was competent to the said local board on the 25th Aug. 1870, to declare the said expenses private improvement expenses, although the works were completed in the year 1860; whether the justices were bound to dismiss the said complaint on the ground of the Statute of Limitations barring the said claim.

Baylis argued for the appellant.-The Public Health Act 1848 (11 & 12 Vict. c. 63) s. 69, enacts "That in case any present or future street or any part thereof (not being a highway), be not sewered, levelled, paved, flagged, and channelled, to the satisfaction of the local board of health, such board may, by notice in writing to the respective owners or occupiers of the premises fronting, adjoining, or abutting upon such parts thereof as may require to be sewered levelled, paved, flagged, or channelled, require them to sewer, level, pave, flag, or channel the same within a time to be specified in such notice; and if such notice be not complied with, the said local board may, if they shall think fit, execute the works mentioned or referred to therein; and the expenses incurred by them in so doing shall be paid by the owners in default, according to the frontage of their respective premises, and in such proportion as shall be settled by the surveyor, or in case of dispute as shall be settled by arbitration (having regard to all the circumstances of the case) in the manner provided for by this Act; and such expenses may be recovered from the last-mentioned owners in a summary manner, or the same may be declared by order of the said local board to be private improvement expenses, and be recoverable as such in the manner hereinafter provided." The local board may adopt either of these two modes of enforcing their claim; if, however, they exercise their option to proceed in a summary manner (according to sect. 129), as I contend they have done here, their proceedings must be subject to Jervis's Act 1848 (11 & 12 Vict. c. 43), which provides, by sect. 11, that "In all cases where no time is already or shall hereafter be specially limited for making any such complaint or laying any such information in the Act or Acts of Par

Q. B.]

liament relating to each particular case, 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 infor mation respectively arose.' It has been held, in Jacomb v. Dodgson (3 B. & S. 461), that as the owner has, by the Local Government Act 1858 (21 & 22 Vict. c. 98, s. 63), a right to dispute the apportionment during three months after notice of the amount settled upon him by the surveyor, the board may, within six months from the expiration of the said three months, take proceedings before justices for the recovery of the amount. The notice of the proportion settled upon the appellant was given on the 3rd July 1858, and the summons was issued in Feb. 1871; clearly, therefore, even with the extra three months allowed by the Act of 1858, the board cannot proceed summarily. Again, with respect to the other alternative mode of proceeding at their option, viz., by order declaring the expenses to be private improvement expenses, sect. 90 of the Act of 1848 enacts, "That whenever the local board of health have incurred or become liable for any expenses which by this Act are, or by the said local board shall be declared to be, private improvement expenses, the said local board may if they shall think fit, make and levy upon the occupier of the premises in respect of which the expenses shall have been incurred, except in the cases hereinafter provided, 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 51. in the hundred, in such period not exceeding thirty years, as the said local board shall in each case determine." This section clearly requires that a rate should be made, and according to the case there has been no rate. Further, in sect. 62 of 21 & 22 Vict. c. 98, the last proviso is, "In all summary proceedings by a local board for the recovery of expenses incurred by them in works of private improvement, the time within which such proceedings may be taken shall be reckoned from the date of the service of notice of demand." Even, therefore, if these are private improvement expenses, the respondents ought to have taken out this summons at the latest within nine months of the demand of the 21st Jan. 1861. [Stopped by the court.]

J. Edwards for the respondents. I admit that no rate has been made, but by the Local Government Amendment Act 1861 (24 & 25 Vict. c. 61), s. 23, "The expenses which have been incurred by any local board of health as and for private improvement expenses under the Public Health Act 1848, as also the expenses stated in the 62nd section of the Local Government Act 1858, to be a charge upon the premises, with interest after the rate of 5 per cent. per annum, may by order of the local board of health be declared payable by annual instalments with interest after the rate aforesaid during a period not exceeding thirty years, until the whole amount be paid; and any such instalments and interest, or any part thereof, may be recovered from the owner or occupier of such premises in the same manner as general district rates, and may be deducted from the rent of such premises in the same proportions as are allowed in the case of private improvement rates under the 91st section of the Public Health Act 1848." On the 25th

[Q. B.

Aug. 1870 the board declared these to be private improvement expenses, and by this section they

can

now proceed as if they had made a rate. [LUSH, J.-The matter of complaint, as the board originally considered it, arose three months after the notice of the 21st Jan. 1861; and the question is whether, after the expiration of six months from that time, during which they might have proceeded summarily, they could change the nature of the claim, and by calling it something different from that which they had originally considered it, adopt another plan for collecting it. It would be a grievous wrong, in the case of a change of owners, if the board could thus saddle a new owner with charges they had neglected to collect from his predecessors.] The case does not state whether these proceedings were intended to be according to the provisions for recovery in a summary manner, or whether they were an application for a warrant under the 23rd section of the Act of 1861, as if a rate had been made. Now this notice of the 21st Jan. 1861 was not a demand at all; it was merely a notice to enable the owner to dispute the apportionment, and cannot be said to be the time from which the period of limitation was to be counted, according to sect. 62 of the Act of 1858. Besides, under the Act of 1861 these expenses may be recovered in the same manner as general district rates, and it has been held that Jervis's Act does not apply to rates. [LUSH, J.-What have you to say, Mr. Baylis, with regard to this 23rd section of the Act of 1861?]

Baylis in reply.-The intention of the Legislature appears to have been that a board of health might recover by either of the two alternatives given in the 69th section of the Act of 1848. I say they have here adopted one of these modes of proceeding, and have dropped it; they cannot now go back and begin with the other. [Stopped by the court.]

LUSH, J.-I am of opinion that the appellant is entitled to our judgment. These works were completed in the year 1860; and on the 21st Jan. 1861, a notice, which is set out in the case, was delivered to the appellant. It is now contended by the respondents that this notice did not constitute a demand for payment, but it is on the face of it a notice that interest will be charged unless the amount there mentioned is paid, and it states that the amount is the appellant's proportion of the expenses incurred by the board the year before. I certainly consider the document to be such a demand as that provided for in sect. 62 of the Act of 1858. No payment was made upon that demand, and no further proceedings were taken in the matter until the order was made by the corporation on the 25th Aug. 1870, that the amount they claimed from the appellant should be private improvement expenses. By the 69th section of the Act of 1848, the board had the option in 1861 either of proceeding summarily, or of making an order declaring this amount to be private improvement expenses; in the latter case, according to sect. 90 the board may levy the expenses by a rate upon the occupiers, part of which, by the following section, the occupiers may deduct from their rent. The Act of 1861, by sect. 23, seems to dispense with a rate, and the question is, as there was no rate here, at what time were the respondents bound to exercise their option? It is not necessary to say how they might have been limited, if no demand had been made upon the owner. Here there