414 I COOPER 0. THE WANDSWORTH BOARD OF WORKS 14C.B.(N.SdlW.

interest; to he rid of. The state af the cargo also was sure to raise cliffioulties at the
Hava;pa; and the master was answerable for pert of the freight, so that, L b t the
best, %hecertaintpresent risk and inconvenience of keeping the cmgo could only be
paid far in futqre uncertain and litigious profit. Considerable expcnse had been
alre<dyi n m a It wm necessary to incur more. The vcssel had been necesserify
lighGned of a, g eat part of her cargo, whilst she was in a state in which it was doubtful
I
whether eheccau d ever be repaired.
Under these eireumstames, the plaintiff gave the authority to the defendants,
withaut which they declined to act. The circumstances, therefore, under which the
t h e 9th of August was given eshblish beyond doubt the intention which it
xpcemes, that the defendiwits, i n receiving the cargo, did riot simply corisent
to t&e upon khqm the biirthen and expenses of representing the vessel, which they
were under no abligation to do, but either absolutely to put an eiid to the voyage, 01
leqst with an authority to do t3hebest, having regard to the interests of all parties.
Indeed, the plaintiff, though he sttited that he gave no authority to sell the goods, and
that t b y went to Liverpool because Sparke said it was the best plnce to dry and
p r e p r e them, admitted that Sparlies offar was, to do his best for him as well as the
cargo, upon which the lctter of the 9th of August was given, and that the plaintiff
left it tu Sparke to do the best he could.
The defendants thus had authority to sell as they [I801 did, unless that authority
was aountermandable and countermaricled by the owners of the vessel. In our opinion,
however, it was an authority which could not under the circumstances be countermandecl
after the defendants Rad acted and incurred expense in acting upon it DS they did, inter
alia, by incurring the expense of taking the goods t o Liverpool long before :my
objection w m made.;
Therefore, the plaintiffs argument has failed ; and, having carefully considered the
evidence, we think the verdict for the defendants is in accordance with the manifest
justiae of the mse.
Rule dischxged.
3 Id4.L
COOPER u. THE BOARD OF \vORKS FOR TEE \vANDRWORTH I)ISTKiCT.
17)- (&, 1?L,
April 2134 1865.
[S,C.32 L. J. C.P. 185; 9 Jur. N. S. 1155; 11 W. R. 646, Applied, BmttarL v,
8t. Georgds, Lza~cvver&pare, Yeshy, 1571, b. E. 13 Eq. 345. Distinguis~cd,Chet?iar%
e s ~ ~L.
v. N a p oJ 1 ~ ~ 7 & c ~ 1875, r , R. 10 G. P. 265. Eeferred to, Lmirlmb awl South
FFi&m~~~~a~ v. Flozuer, 1875, 1 G. e. D. 86. Discussed, ~~~~j~ v. R., 1878,
3 App. Cas. 624. Adapted, Masters Y. ~ ~ Local G ~ o ~ e~ ~ Gro a~ 41 ~ 1878,
~ ~ ~~ ~ t 1
9 Ch. I). 684 ; St. J a w and St. John, Clerkenwell, Peestry v. Fear!/, 1890, 24 Q. B. I).
709. Approved, Hqkins v. SmitJbwick heal Board of Bealth, 1890, 34 Q. 3.3. D. 713,
Cansidered, Attmmy-Qmera2 v. Booper, [1893 3 Ch. 483. Distinguished, Robinuoa
v. ~~~~~~ CMpmcaatim, tl899]i Q. B. 767.3
The 76th sectiw of the Metropolis Local ~ a n a g e m e n tAct, 18 & 19 Vict. e. 120,
impowerg the district board to alter or demolish a house, where the builder has
nkgleded to give notice of his interition to build seven days before proceeding to
lay or dig the foundation :-Held, that this does not impower them to demolish
tha, building, without first giving the party g i d t y of the omission an opportunity
of b i n g heard; and that the 211th section, which gives an appeal to the Metro-
pdiiran bow&of works, does nat prevent, the builder or owner of the premises from
suing them for so doing.
This wa8 a n action for pulling down a house of the plaintiff which was in the course
af emation.
The defendants justified their act under the 76th section of the Metropolis Locd
Manageateat Act, 1855, 18 & 19 Vict. c. 120, which enacts that, before beginning
to lay or dig out the foundation of any new house or building within any such
parish or di&iot(a), or to rebuild any house or building therein, and also before
making any drain or the purpose of draining [la11 directly or indimctly into any
__
(a) Mentioned in Schedules A. and B, to the act.
 14C-B.8.8.)18a, COOPER 2). THE WANDSWORTH BOARD O F WORES 415
s m r under the jurisdiction of the vestry or board of or for m y such parish or district,
S W B ~days notice in writing shall be given to the vestry or board by the person
inhndiry: to build or rebuild sueh house or building or to make such drain; and
~ ~ Wswh J T ~ u n d ~ ~shallt i obe~ l&l a t such level as will permit the drainage of such
house or building in compliance with this act, and as the vestry or board shall order ;
atid every such drain shall be made in such direction, manner, irntl form, arid of such
materish and w o r ~ ~ ~ ~ n sand h i pwith
, such b ~ ~ ~ ~thereto
c h e sand other connected works
and appamtua and water supply its hereinbefore [s. 731 nientioned, and as the vestry
or b a r d shall order; arid the m ~ ~ ~ofi nevery g such drain shidl be under the survey
%id cantroll of the vestry or board ; and the vestry or district h a r d shall make their
d e r in ~ e l ~ t ~toothen matters aforesaid, and Muse the same to he no ti^^ to the
person from whom such notice WAS received, within seven dtiys after the receipt of
such notice; and, in default of such notice, or i f such house, huilding, or drain, or
branches thereto, or other connectcd works and appar~~tus arid water supply, he begun,
srectsd, made, or provided in auy respect contrary to any order of the vestry or h t r d
Eade and ~ o t as~afores~~id,~ e ~or the provisions of this act, it shall be lawful for the
-regtry or board to cause such house or building to he ~ ~ e m o l i s hore ~altered, ~ and to
muse such drain or ~)raziche~ thereto, and other cortiiectecl works and ~ p p ~ r ~and t~~s,
water supply, to be re-laid, mended, or re-mde, or, in the event of omission, added,
as the caae may require, and to recover the expenses thereof from the owner thereof
irk the mariner ~ e r e ~ rprovitied.
~ a f ~ ~
The cause was tried before Willes, J., tit the sittings itr Middlesex B f t e r last
m a s It : ~ p - ~ l g 2 ] - ~ ~ ethat
~ ~ c h ~ l Term. a r ~ the
d p I ~ & ~ t LLi t ibuilrier,
~, waa e ~ p l o y e dto
build e house withiu the \Vtblirisworth district, arid had idready reached the second
storey, when the defeiidatits~withoiit giving hixu any notice, saiit their surveyor arid
a number uf workmen, at a late hour in the everting, arid rilzcd it to the ground.
There was conflicting evidence :LB to whether or not the plaintiff had given the
nokicics required by the 76th section of the ~ e t r o ~ Local ~ i s ~ : ~ i i ~ ~ eAct, ~ n ofe ~hislt
intention to buitd ; he alleging that he had, i ~ l i dthe officers of the howd denying that
aoy auck notice had como to their hands : hut i t wris a ~ ~ ~ i tby t ethe
d p ~ ~ ~ ithat nti~
he had cornmeticed digging aut the foundations within five clays of the day on which
he alleged he had sent notice.
On tdze part of the plaintiff; it was submitted that the district board of works had
no power under the circurnstiinces to demolish his house ; and that, assuming they
had such. power, they had ~ ~ p r o exercised ~ e r ~ it,~ by acting ~ v i t h o ~notice~ t to him
or giving him an opportunity of beiug heard.
For the d e f e ~ d a ~iti ~was
s irisisted, that the 76th section of the s t a ~ u t e@we them
a discretiop, against the exercise of which there was no appcal, except to the Metro-
politan b ard of works under s. 211 (a); md [183] that, inastiiuch as they were
xcting mi$isteriaiiy, and not judieialIy, they were not hound to give any notice,
Under the dimetion of t h a learned judge, a verdict \vas entered for the plaintiff;
leave being reserved to the ~ ~ ~ f e t i dtoa move u ~ to enter the verdict for them, or a
nonsuit, ifthe court should he of opinion that the action was riot maintainable, A
rub iiisi having aceord~iigl~ been obtained,
(a) Any peraon who d e e m himself aggrieved by any order of any vestry or
disfirict board in relatioxi to the level of any building, or any order or act of :my
vestry or district board in relation to the construction, repair, alteration, stopping, or
filling up, or demo~itionof ariy hui~ding,sewer, drain, ~vatcrcloset,privy, ashpit, os
eesapool, m y , within seven dsiys after. notice of any such order to the occupier of
%heprerni;ses affected thereby, or after such act, appeal to the ~ e t r o p o l ~tjoctwj
~ r i of
works against the same ; and all such appeals shdi staid referred to the committee
a p p by~such~ board~ for~ hewing sppeels, as herein provided ; and such colqmittee
. shall hitag and determine all such appeeis, ant1 tuay crrder any costs of such ttpgeals to
, be paid t$ or by the vestry or district board by or to the party appealing, and may,
where thpy see fit, award any co~pensationiri respect of any act done by axry such
vestry orgdistrict bwrd in relation to the matters aforesaid : Provided that no such
~ ~ 6 ~shallt twti awardcd ~ n in respect of any such act which may have been dorle
nnder any of the provisions of this act OR ;any default to comply with any such order
ebg sforssaid, unless the appeaI be lodged within seven days after notice of such order
has been given to the occupier of khe premises to which the same relates.
416 COOPER 21. THE FVANDSWORTE BOARD OF WORKS 14C.B,(N.S.)Isa

C. Denanan, Q. C., and Prentice, shewed cause. The provisions of the 76th sectiotr
of tb MetropoI$s Local Management Act are so stringent and arbitrary that the court
will be sluv to bold that they override that sound arid universnlly-npplic,le principle
of natural juatiqe, that n o man shall be condemned either in person or property with-
aut having had ,an 0pportunit.y ilfforded him of being heard it1 his own defence. This
was moat emphatically held in The Kiug v. The Clirwellor, &., of Cu~t~hszdge(Or.
~ ~ 1e Str.
~ e ~ i me], ~ s 557, 2 LJ. Ihyp. 1334, 8 Mod. 148, Fortescue, 302, aitd has
beet&repeaEe&$ enforced since : see 1he Kkg v. Bm74 6 T. R. 198 ; ~ u ~ ~ v.J eCaw, r
7 T.R. 270 ; Capel v. Chald, 2 C. & J. 558 ; Bimiiioiirl v. BBI~&J~/w, 13 Q. B. 869;
pa^^^ Y. Ths ~ ~ Oil @us~ Ligl~te~ ~ S:t E. 433,
~ ~3 Ad. n ~6 N. ~ 736. ~Iu
~ & M. ~
CupeZ v. CMd, Bayley, B., says that he knows of 1 1 0 case i n [l84] which you are to
have a judicial proceeding by whioh a m a n is to be deprived of any part of his property
without his having an opportunity of being heard. The like doctrine is laid down iilr
the ~~~~~~~~~~ urge case, 4 Exch. 87. Under the Tithe Co~mutatioiiAct,
6 I% 7 W. 4, c. 71, s. 82, when the half-yearIy payment of rent-charge on land shall he
in arrear and unpaid for the space of forty days, and there shail be 1 1 0 sufficient
distress rqtso the premises liable to the payment thereof, i t shall he lawful for nuy
judga of His Majestys courts of record a t Westminster, upon an affidavit of the facts,
to order writ to issue to the sheriff, requiring him to suninion a jury t o assess thft
8rreara of the rent-charge remaining unpaid, and to return the inyiiisition thereupon
taken to some ane of the superior courts, Scc. : and the court of ~ x c h e q u e r ~ - ~ a r k B.,
e,
diss~ntien~,-4eld, that such order could be made on an ex parte application to the
judge. Park$ B., in the course of his judgment, s:iys : It has long been a received
rule in the a d ~ n i s t r a t i o nof justice, that no one i s to be ptiriishcd in any jutlicinl
proceeding, unless h e has had an opportunity of being heard. In Aiistiii v, The
Y e s h y of Xt. Mary, Lnmbefh, 27 llaw J., Ch. 388, arid in The Poplar Disttict Bourd
os W m h App.., Knight, Aesp., 28 Law J., M. C. 37, notice was given by the
b o a d before any step taken by them under s. 76, In T ~ ~v. ~The~ ~u~~~~~ l e ~
Disk& Boer& 27 Law J., Ch. 342, where the question arose upon the 8 l s t and
85th sections of this statuh,--the b a r d haviirg come to an arbitrary resolution
that no p r h k or cesspools should be allowed iu their clistrict,-Lord Justice
Knight Bruce says: The question is not whether the board have power to
caiiae or order privies within their district to be put in a proper and decent sbte,
if not in that state: but it is, whether they have the right or power to force on
El851 the ~ ~the mechanieal
i ~ contrivance
t of~ water-closets,
~ with thcir requisite
apparatus, for which he is to find water supply as best he may, instead of the privies
(suicimti as privies, if kept in a condition proper for such conveniences, are) which
are upon his land for the purposes of his cottages there. The claim of the defctndants
in that respect appears to me nianifestIy groundless. I should have thought so had
they begun their operations by giving the plaintiff an opportunity of being heard, and
of prcrdueimg testimony, or in any event of hearing him, and if thcy had regulated
themsslvea by analogy b judicial praceed~gs,and had deemed i t reasonable tcr hear
bot& aidea : but, as mattem were conducted, there has, perhaps, been a double error,-
althDugh upon;this point 1 do not mean to speak as having formed an opinion ; nor
do I mean to intimate my impression how the Case niight possibly have stood had
thcre beerr, SB there has not been, any order of a justice or justices of the peace
relating t;a the work or the privies. The right, however, or power to appeal given by
89. 211 and 212, c. 120, upon which stress was laid in the argument, appears to me
riot st dl txt prejudice or affect the plaintiff. Arid Lord Justice Turner says:
~ ~ h amay t ~be vthe~powers given by this act to the local authorities to order water-
close& tcl be provided instend of privies i n particular cases in which that alteration
may be required (I am ~ s u r n i nthat, ~ without in the least meaning to decide that
the act gives tbat power}, I think that, whatever may be the powers given, upon the
true construction of the act, and viewing it in the light most favourable to these
defendants, bh?y were hound to exercise their jurisdiction in each articular case, and
t h s 6 i t wad no$ competent to them to lay down any stich genera[ rule as that upon
mhi& t h e d e ~ e acted; n ~ and ~ ~ that, in acting upon Qiat ride, they E1861 have
exckeded the dowers @en to them by the act, And further he says : L( If s tribund
ha&g a h & 8 d jufisdicthn goes beyond that j u ~ ~ s d i ~it~ is to resort
o n~I~iIieceasary
,
to the appeal ;O~~LUBB.~It is submitted, therefore, that the defendan& justificatio~
wholly fails.
i ~ a . a m s . t i s ~ COOPER
. ti. THE WANDSWORTH BOARD OF WORKS 417
Bovill, Q. C., and B. C. Rohinson, iu support of the rule. The statuto in question
is oue of a series of recent acts giving liarge powers to local lio~trclsfor the public
benefit, the great safe-giiarri against ahuses in the :idrriirtistration of which is that the
msmliers of which these boards ilre contposed irre elected by the rate-payers of the
disfrict. Many things itre to be done, some r e q L ~ i r i ~notice, i ~ others not : and in many
C:L=S the object to be iittained would he utterly frustrated unless dotie promptly.
Such are the matterg referred to in sections 73, S2, 33, 108, arid 112. [Willes, J.
The old cornmissiatiers of sewers, acting under the eonimissioti created by the statute
23 3, 8, e. 5, s. 3, ~ r o c e e c ~hy e ~~~) r e s e i j t ~ ~of~ rat tjury, ~vhic~1 the party h d att
opportunity of traversing.] Ttiey were a court of record, : L I I ~ acted judicially (u).
Uiilass the local board have the power here cxerciserl, there treing 110 ~ e ~ i ~provitfed ~lty
for*d i s o b ~ ~ e ~the
c e direction
, of the 76th sectiott will never be complied with. What
necessity can there be for giving tho party notice, when he well h o w s tliat he is doing
an illegal act, atid that the l ~ l a r dhttve power to prostrate his house2 I t is not like a
ckqe where a judieial discretion i s to be exerciserl. An at.l>itr;irypower is conferred
upon the board, which is iieeess~~ily ta be exercised without m y control. In &?RakfW
v. Em954 16 Q. B. 163, 171, Pnrke, L3., says: No proposition ~ a i ibe more clearly
e ~ ~ b l than ~ ~ E1871
e d that a, miin canrtot incm the loss of liberty or ~ r o p e r t yfor an
o f k e e by a jitdiciirl proceeding miti1 he has h i d $1 firir o ~ ~ o r t u I i j of t y answering the
chnrge against him, ~iiile5.s iiided t h e ieplaluw /m e q i w s ~ l yor iiiqilietlly yiuen an authotity
to irct zvilhnzit that necessary pmhniw~ry. The defenclatrts were guilty of no excess
here : they did nothing beyond \dit& was necessary for pulling ricirvn the house.
ERLE,C. 3. I am of opinion tl-iat this rule nrrght to be discharged. This was an
action of trespass by the plairitiff :tgairist the W:riitlsworth district hoard, for pulling
ciowu and d e ~ a ~ i ~his n ~ ; arid the ground of rleEertce that has been put forward
h i house
by the defen~a~xts h:u tieeri wider the 76th sectioii of the ~etz.opolisLocal Manage-
nient Act, 18 B 19 Vict. e. 120. By the part of that section which applies to this
case, i t is eir~wteclthat, 1)efore nriy person shall begin to build a new house, he shall
give sewit days notice to the district tmt-d of his intention to huild ; and it provides
a t the end thpt, in dafrt;ttlt of such riotice it shalt tie lawftil for ttie distriet board to
deuu~lishthe house. The district I~oatdhere say that rio tiotiee \vas given by the
pl+iioti@of his intention to build the house in qnestiort, wherefore they ~ ~ e m o l i ~ hit.e d
The e o n ~ ~ ton i ~the
n part of die phititiR has tieen that, dthough the words of the
statute, taken in their literal sense, without any cludific&iori :It all, would create a
justification for the act which the district board has done, the powers granted by that
statute are subject to a qua1ific;ttion which has beeu repe;atedly recognized, that no
man is to be deprived of his property w i t ~ o i ~his t having an o~)port~rIity of being
heard. The evidenae here shews that the plaintiff and the district board had not been
quite on amicable terms. Be th:& as it nt;%y,the tlistrict bomd say that no notice was
given, aitd that con-[l88]-seq~eritly they had H right to proceed to demolish the house
without delay, and without riotice to tbe pwty whose house was to he pulled rlowxi,
and without giving him an opportuuity of shewing :illy remon why the board should
delay. I think that the power which is granted by the 76th sectcioni s suhject to the
~ ~ ~ l i f i~ eu g~ ~t sit ~e ~Itl .is a power carrying with it enormoi~s~onse(~ue1ices.The
h ~ u s ein quegtion was built only to a certain extent. But the power claimed would
+ply to ecobzplete house, I t would apply to a house of any value, and complete4 to
ady extent; and it seems to me to he B power which may be exercised most per-
tt$iousIy, and that the Iimihtioir which we are going to put q o t r i t is one which
o&+ht, according to the decided cLtses, to be pat upon it, and one which is required
by a due consideration for the public interest. I think the board ought to have given
notice to the p ~ a i ~and ~ ito~ have
, allowed him to be hecird, The default in se~iditig
trotice to the hoasd of the iritentiou to bidd, is :I default whieh may be explained.
There may be a great many excuses for the apparent default. Tho piirty may have
i ~ ~ n d toe dconform to the law. He may have actudly conformed to all the regula-
tions which they would wish to impose, though by iiccident his notice may have
miscarried ; and, under those circumstances, if he explained how it stood, the proceed-
ing to demolish, merely because they had ill-will against the p:wty, is a power that
the legia~atiirenever intended to confer. I c~~tiIiot conceive tiny hlbrm that could
happen to the district board from hearing the pmty before they subjected him to 8
 n his house; but I can coticeive a, great niztriy
loss so serious its the ~ e n i o l ~ t i oof
dLttvantages which might arise in the m y of public order, iri the way of doiiig
s ~ ~ ~justice, t ~ and
L in~ the
t ~way~ of~fnlfillirig the prposes of the statute, by the
restriction which we put upon them, [US] that they shoiiitl hear the piirty before
they inflict upon him such a heavy loss. I fully agree that the legislature irikricled
to give the district hmrd very large powers iricleerl : but the ~ ~ ~ i i ~ i t i c1~ speak ~ t i o iof
i
i s one which Las beeti recogtiised to tfie fufl extettt. I t hm freer, snitl that the prsirrciple
that R O man shiill be deprived of his property without itxi op~)orttinit~ of tteiug trcard,
is limited to P jutlicid proceedirig, arid t h a t a district board ordering a house to he
pulled down c;ltmot he said to he doinga judickd act. 1 do riot ([Luteagree with thiLt ;
neither do I utiderkike to rest my judgmerit solely upoa the groutit1 that the district
board is a court exercieiug judicial discretion upon the poirit : but the l:iw, I thitbk,
has been applied t o msriy exercises of power which in (:o~nnioti~ i t i d c r s ~ ~ twould i~lit~~
Iiot be at at1 more a judicial proceedirig ttia;ri n~ouiclbe the i ~ c of t the district I~oiwd
in o r ~ ~ e r ~aI house
Ig to be pulled clowri. The case of the c o ~ ~ ~ o r ~ ioft i othe
ti ~~ti~versity
of Cambridge, who turried out Dr. Gentley, iu the exercise of their assiiniccl power of
d e p r i v i n ~member
~~ of the ~ I ~ j v e rof~his
~ t rights,
~ r ;uid :I ziiirriher of other use8 which
me collected in Thc funnne,:srtiith i:mt-Churp a m , 4 Exeh. 96, iti the judgment of
Psrke, B., shew that the priticiple has Iieeii very widely appliecl. The distriat l ) o ~ u ~ l
must do the bhing legally ; there must be tk re~oli~tiori ; :tritl, if there he a hoard, :hiid
a resolution of that board, I have riot heard :t word to shew th:& it would not be
s ~ ~ l ~that i t they
~ ~ should
r ~ hear the mim who i s to suffer frorti their judgmeiit hefore
they proceed to make the o~clercider which they attempt to j i i s t i f y their uct, It i?i
said that an appeal from the district board to the m e t r o ~ ) o I i ~ttctarcf
~ r i (urider s. 311)
would be the mode of redress. But, if the district hoiird have the power to do what
i s here stated, I am not at t~llclear that there woultl be a tight of redress iri th:it way.
The metropalita~iE1901 ttoard may riot have a rigtit to give redress for that which
was done under the ~~rovisioiis of the shtute. I thiIik the appcxil cluuss would
e ~ ~ d eindicate
n t ~ ~that m m y exercises of tho power of cz district Iaoarct woulrl be i n
the nature of jitdicid proceedings ; hecause, certaitily when they re apiieaLed from,
the appellant and the resporident are to be heard as parties, h rid the matter i s to be
decided a t leEutaccurdirig to judicial forms. 1 take that to he i~ pririciple of v e ~ ywide
application, atid applicable to the present case ; arid I think this Iioard wits riot justified
under tbo ~ ~ t u tbecttuse
e, they have not qualified t ~ e R I s e ~for c s exercise of their
~ ~ the
power by heariIig the pbrfty to he :&ected hy their ctecisioti.
WILLES, J. I am of the s ~ m opiniorr.
e I apprehetid that a. trihuri:J which is by
law invested with porver to affect the property of one of Her Majestys subjects, i s
hound to give such subject an op~iortLitiityof being heard hefore i t proccetIs : iuid that
that rule is of uriiversd appliratiori, end founded upon the plainest principles of justice.
Now, is the board in the present uaye such L trihuiiitl? 1 appehericl it clearly is,
whether me consider it with refererice to the di~cretioi~ which i s vested i t t it, or wfre&ber
we look a& the analogy which exists between i t arid other reeognisect t r i h d s fatttl
rm one ever doribted thst such tribunals are boiiiicl by the rules which ti court of
justice is hound hy), or whetbor yoti look : b t i t with refererice the estirnatiari in which
it is held by the legislaturc, LS appears from the Iarigmge used in the statute,
First, wjth regard to the powers the botird exercises with respect to sewers, arid
sp on with tespect to riiii3ances, aiid the power to remove certiri excrescerices in the
gublic streets, or of insisting upon houses being provided with certain co~~~eriier~ces,
and that they [Xjl] shall be huilt at a certain level, arid so ori ; all these ;Ire powers
wkkh are @ he exercised with a due cliscretiori. IVith respect to riiiisilrices, the board
exercises the power of rt crimirial corirt of high juris~ict~oi~, hecwsc i t has il cliscretioti
8 s to whether it will abate that which is a tiuisance dtogcttier, or whether it will
simply direct that there shail be a,moditimtion of the works wtiioh iri itu opirtioii are
necessary fur the health of the neighbourhoocl. I ;q)prehertd it is]cle.zr that the powers
Bhhus exercised by the hoard wider the act me powers which huve always kieeti COKI
sidered judiciai, wid which could riot tie exercised without givirtg iiotice to the p x t y
who irs to be proceeded agaiust. Izi this very sectictii, ?6, the legislature speaks of
coming uuder the jurisdictio~tof the v0stry or hoard ; a d it is clear that t h e
boards do tbxercise jridieial powers. The power here is m e tfmt, pidiably inore than
any, requires ththikt &e party to be affected by i t should be heard, beczzuse of its extettt,
arid because the hoard miry be sntisficd with rt tuoclificatiort of that which has been
done. The form of the section is peculiar. Notice is to be given ; a t i d , if the notice
is iyen, then it is to he wrmiderert hy tAe district tmird ; :d, if thy think proper to
m s e an order with reference to the rtliitirter iu which the house is to bo tmilt, '' the
veatry or district hoard shall mako their order in rehtkioti to the nlxttors aforesaid, atid
enuse the same to be tioti~e[lto the persuti from w h n such iiotice was received, withiti
seven days after the receipt of such notice ; ilu(l, ( t i defuult of such iiotice,'J cerhrin
ttiil.igs may be doire. The object of the iiotiue is sirtiply th2tt the 110iitd rrizy h v e ari
t ~ directing how the work i s to proceed ; aiitl, a t the etid of seven days,
o p p ~ t u n i of
if there is 1 1 0 desire of the 1 ~ ~ 1 ,er t{ l~ ~ ~ ~ frotir i ~ ~then%,
t i i i the
~ person rntiy proceed
wqordiag tu the ;&etof p,rli:rrnetit, The sectioit proceeds,-[1921 " Aitil in default
of such i d e e , or if srrch house, ~ i ~ i ~ lor~ drain, ~ ~ t t or ~ ,hratiches thoreto, or otlicr e w -
riected works arid ~ p ~ ~ r u arid t u swater supply hc l q i i u , erected, rtiwlc, or provided
irt :my respect coritrsry to m y ortler of the vestry or h o d , n i d e a i d notified as
;&resaid, or the proiisiotis of this :Lot, i t sh:~ll he lawful for the vestry or boxd to
cause sucii hause or ~ ~ L i i I ( f i rto
i ~ he ( ~ e r ~ i ~ I i sor
~ ~ttltered,
e(1 znd to e w s e such drtlin
or branches," &e., &c. The niattcr to be cortsidererl by the l~oarrlhefore they make
tfrzlt order is, first of d1, has aity notice heal given 1' A ;til tlieii the p x t y clearly ought
to be allowed to shew, either t h e t he has giver1 it riolioe which mty hme kieett over-
Irmkerl, or, if the rtoticc has riot I w r i reeeirect hg the tioi~rd,to shew thzit its did his
lte& towards doiiig so, iu order to iriilLice thcni to look on ttie c:isu favotirubly,--lrot
$0 demolish the house, l m t to see wlriether m y : ~ i i ( lwlut (~ii~i1itic~~ti~)ii i s necess;u.y for
the purpose of ltritiging it within w h t sfiuulrt Im ciorie if tho notice t i d beeti regularly
served. In either of those cases, T ~ p ~ i r e ~ ei ti i~s ~elear l , that it woulrf he the right
of the pwty to be heard. &it there i s a ttiirci ease; aricl that is where, hy wilfully
disregardiitg the orclcr, 01'by the act of SOIW tbircl persorr, WIIUN tie clid his best to
control, the owtier of the house rituy hsve suftjecteri his frouse to clemolitiou tiy the
board, or to be dealt with severely try reitson of its tlefccts. That is :I case it1 which
judicial power is to he exercised, imcl ill whieti cleirly the Jxirty sought to 118 affected
sbould be heard. Than, w to the ;rpped sectiozt, 2 1 i , whut light does that throw upon
the matter? There i s ibri upped from Lhr, clistiict t)ot~r(1,tiot to m y jurlioid t r ~ ~ ) u ~ ~ l
ilt ttie smse nf arty t r j ~ ~ i zfiore ~ ~ i i t i its form t h t i the 1 0 d tlo;ml of WQ~ICY,
~ t ~ juciieiiil
b u t to the metropolitmi 1x)ntul of works, which is just 8s much d just as little
j u ~ j hi ~ as the I)oarcl whose condiict E1933 we idre IIOW eoiisir~r,~itig,What
e ~ita~acts
is to take place upon such :tppeal? " h i l all such q p e a l s shall st:iiitl referred to the
committee appointed hy such board for bewiiig q p d s , i ~ sherein provided ; and such
corumittee shall lww and { ~ $ ~ $ ~ all I R such
~ ? ~ ~appeals " Nothing CUR be inure clear ttian
th&tthe legislature thought that the matters which ttiight come before the ttosrcl tipork
xgpwt, t h u t is, the smie m:ttters which came Itefore the 1oc:d board of works i t 1 the
fiiat instance! were proper, riot, ody to he cletermiiied, hut also tu he Itearrt ; and, if
fiti to he heard tigon art uppe:iI, B fortiori fit to be Lead i i t the first iiistiliice, Itefore
a wrongful decision cilii make ari appeal lie. With respect to the reniarak of Mr.
liobillson, that this is a11 opped :bgiiiist :kit act, nrid that it ni:y be that there may be
art a ~ against
~ ari a t i d 2~arid 1x0 : ~ ~ ypirist~ e a~i i ~crrderJ--bhe
l iyped aygiitist the act
is iritrodnced in favour uf the party who is appeaiing, so as to give him a farther time
tol appealt if he should huppcti to miss the time for :tppe:d after the ortler is made, if
tlrati order ig acted irpoti to his pjrrrliec. I ~ p p r e h e u ~ therefore,
~, thst t h t would
nat at all ilfl'eet the ~ o ~ ~ t r u ~oft i othei i section Lirif~voitru~)~y to the ~ ~ i t i t i t iThere
~.
is mother remark tt, he made with referetice to these p;lrt;ies' proceetlirigs. The board
are not ouIy to do the work of dertiolistiiug the hoiise, if they think proper, or modify-
ing it, but they ilre to charge the expeiises ort the persort who has erred :&gainstthe
a&. Eia pmperLy is afl'ected iziirt his purse is further aBectet1. What ~ ~ b ) ~upott ans
t h t ? and how is the r n ~ 1 I eto~ be got? That is a po2eeditig uuder the 225th section,
wbich is a seetion giving jurisdictiort to tire justices ltefore whom the costs itre to La
~ ~ ~ r ~audi icovered i e ~ ; zatrrl it is clew that under that sectioti the justices could
iLot proceed tvithout h:Lvitig before theiii the person against whom tho expenses are
t a be [I941 adjudgecl. Atid it does seem tin absurdity to S;LY t h t , iti determining
the amo~iutof expetises, the party s M 1 be he:rrd, hut that, it1 ~ e t e r t ~ ~ ~ twhether iiiIg
p;oeesdings should he taketi, his rnortth should be elos~d. I e;imot help ~ h ~ ~ k i r
that a board ~ x e r e i s i uthis
~ large pmser shoukt EdIow the orclirrtlry rule, ttlat the party
sought to be'ihfftlctsd shoiild be heard; and I think thibt the verdict for the plaititiff
ought til stand.
420 COOPER 2. TRE W A N D ~ ~ O R T BOARD
H OF WORKS 14G.B.(N.S,)1%.

BY LEE^, J. I am of the same opinion. This is :L case in which the ~ V a ~ ~ ~ s w o r t ~

diqrict board have taken upon themselves to pull dowri a house, and to s:ddle the
owder with the expenses of demolit~oii,without notice of i\tty sort. There are two
sorts of notica which may possibly be reqtiired, mid iieither of them h ; s been given :
onq, B notiee of 8 hearing, that the party may he hewd if lie has ;mything to say
1 ~ other is a iiotice of the order, thiit he nuy cottsider whether
t ~ e ~ o I i t i ;o the
a g ~ i u sthe
he can mitigate the wrath of the hoard, or iu :my w y ~~iorlify the execution of the
ordor. Bere they have given him neither op~jortutiit~.It seems to me that the board
itrci wrong ~vhether they acted jiidjcially or ~ ~ ~ i ~ i s t e r i I~ conceive ~ l ~ y . they mted
j ~ ~ d i c i ~ lbemuse
ly, they had e0 cletermine the offetice, ;~tidthey h t d to a ~ ~ # r tthe io~~
punishniatt as well as the remedy. That tteing so, 5 lotig coiirse of decisions, heginning
with Lk- ~ e case (a),
~ xtd ~ending ~with some ~ \ery recent~ ciises, estatilish that,
dthsugh there are no positive words irr ii statute reyttiritig that the party shall be
hesrd, yet the justice of the common IiLW will m~pplytho omission of ttic legislature.
The judgmerit of Mr. Jiistice ~ortescL~e, in f1951Dr, ~ ~ ? t cu,se, ~ f fis~sornewha,t
~ quaint,
!)ut it is very a ~ ~ ~ I ~and c a tias e , the law from that time to the preseut. Ne
~ ~ been
says, The objection for want of notice can never 1x1got over. The laws of God :ind
nian both give the p r t y titi o~J~ortiIriit? to nrake his rfefettce, if lit: has atry. I remember
to have h e a d it observed by a, very leltriied nmi, upori such t i t i occision, that eveti
Cod himself did not p m s sentence upon Adam before he w;is c:tllccl upon to make his
defence. Adam (says God), where art t h o u ? Hast thoit not eirteri of the tree
whereof I com~~ia~decl thee that thou shouldest itot eat 9 htd the siitnc ~i~~estiori
WM put to Eve also. If, t~Ierefore,the hoard :bctect j i ~ ~ ~ i ~ ialthough ~ i l l y , there are no
words in the s t ~ t u t eto that effect, it8is plain they acted wrongly: But s ~ ~ ~ ~they pose
:tcted rninis&rially,--then it may he they were not t)ouncl to give the f i r s t sort of
notice, vis, the notice of the heariug; but they were clearly bot~rid,:ts it seems to me,
by the woivls of tbe statute, to give notice of tbeir order hefore they proceeded to
execute it. Section 7G contains these words : Tho vestry or district board shall
make their order irt re~~tt~ort to the matters afo~,es~~icI, ttncl c:iuse the same to be notified
(observe wkat ~ 0 1 1 0 ~ s )to the person from whom such notice was received, within
seven days after the receipt of the notiee. The plain corist~uct~oti of those words,
hs i t seems to me, is this : the order i s t o be trotified, :wl, iri the case of a person who
Bets given a notice, that n o t i ~ c ~ ~ tis r ~be conveyed to him withirr seven diiys from
i oto
the dake of his notice. Th#t has riot been done. There has heen neither notice of the
one sort nor of the other ; and it seems to ttie, therefore, th;Lt, whether the board acted
judicialiy or ~ i n ~ s t e r i a ~they
l y , have acted tqairist the whole ciirrent of a ~ i t ~ i o ~ ~ t i e s ~
and have amitted to do that which justice requires, :trid corrtrztvened tbe words of the
tu^. I: E1961 entirely agree with whiEt nry Brother Witles has said ~ ~ ~section o ~ i t
211, whicb clearly shews that, if the board acted IriitiisterialIy, the.? ought to give
B notke of the letter charaoter. I CLI!arlKiOt e n ~ e r ~ i iibily
t i doubt that i r k this case the
board havd exereised their power wrori~~~lly.
KEATING,J. I qnite iigree with the west of the court, 1thittk it is i m ~ o ~ s i bto le
rend the 76th section of the s ~ ~ t u~t ve i t h o ~seaitrg ~ t t h a t the district board of works
are ta exercise a ~iscretionof a very ~mportarttch:tracter irrrleed ; 1)ec:iuse thcy are
authorized, where there has been no notice, or where their order tias been contravened
in my way, to demo~ishor to alter, a8 the case may require. ~ ~ i e r e f o rthey e , are to
form a judgment as to how far and to what esteitt ~~emoIitio~1 or alteration is required,
That being so, surely i t must be intended that they are, tty means of h e : i ~ i ~the i ~ pmty
against whom their order is to be macle, to ascertain the facts so as to be ribfe to form
8 j u d p a i t upon the matter in question. If an ~ l l u s t r a t ~ o were
~ i re~L~ired of the
necessity for it, it seems to me this case wonld furnish i t ; becititse) just suppose that
the diatrict board of works here h;Lii issued a notice to the pwty to hear. what he had
to say, and that he had come before them and stated what wm the fa& LLS e s ~ ~ ~ ~ i s h e
in this cqel 1did not give you notice : 1 hiwe Contr~b~~erIed the sbtute : Etut, although
I have ddne so, I can satisfy you th:& the house has been built arid the drains have
been made strictly in aceordunce with the ~.e~uireme~tts of the ~~atute,-e:~t~ i ~ n yone
suppose for a ~ o ~ ethat r ~thet board would h?$tveproceeded to inflict upon the man
u s of demolishing his house! I cai~iIotcoiiceive it for a ~ o ~ e n ~ .
the g ~ e ~ o iujury
-
(a) 2% King Y. Y?M ~ ~&e., of ~~~b~~~~~
a ~ 3 Ld,~Bayni, 1334,
~1 Stra. 557, ~ ~
8 Mod. 148, Forkescue, 203.
14 a. E. e.1.)iw. FREEMAN V. SPRIh-GHAM 421
I fhink the Case itself furnishes the strongest illustratioii of the necessity of the
applica-[197]-tioti of that rule to which the other memliers of the court have already
referred. I quite agree, therefore, that the rule ought to be discharged.
Rule discharged (a).

F R h T h M N AND OTHERS 0. ~PRINGHAN. May (ith, 1863.

[S. C . 33 L. J. C. P. 249; 8 L. T. 448 ; 11 W. R. 701.)
A plaintfi is riot in m y case entitled to the costs of preparing for trial,-such as
instrwtions for brief, drawing and copying lrriefs a i d documents, and advisiiig 011
evidence, -until after notice of trial ; and that even though the deferidant has
obtained repeated orders for time to plwd extendiiig clowri to five or six days before
the commiwion day OF the assize, tml is urider terriis to take short notice of trial or
such notice as the plaintiff c;tn give.
This was an action brought to recover arreiiis of rent of a farni called Boletis, at
Great Warley, iri the m i n t y of h e x , occupied by the defericlnrit irrider air indetiture
of lease granted to him by the late Richard Palmer toupel, of Lambeth, in the county
of Surrey. The plaintiffs were niortgugees of the premises under fVil1i:tm Roupell,
an iHegitiimate son of Hichard Pdmer Koripell, who at the time of the mortgase of
that and certain other property adjoining t o the pl:tintiEs, chimed to he entitled
thereto under a deed of gift from his late f;ttlier, dated the 9th OE January, 1856 ; for
the (confessed) forgery of which deed (aniorigst other thiiigs) Willi;tin Roqell is now
undergoing his sentence of perral servitude for life The nctioii WRS defended by
&hard Roupell, the only legitimate son of Rich:wd Pdmei. Hoiipell, who claimed as
his heir-nt;law.
The declaration in this action w:ts delivered or1 the 6th of February last. The
time for pleading expired on the 14th of Fehruary, lmt further time was grsrited.
Oh the 18th of that month, an order was made for further time to plead on the terms
of t h e defendarit tokirig shoit riotire of trial f o r the Essex Assizes, which were fixed to
commence on the 9th of March,-the [I981 last day for serving f 7 d l riotice of trial
carisequently beitig the 27th of Febru:try, and for short notice the 4th of March. On
the 24th of February a, further order for time wxs obtained ; and on the 27th a
further order for two days time, the clefendmt coiiscntirig to take my notice of trial
which the plaititiff could give, with liberty to change the veiiiic to Surrey 01 Londori.
The plaintiffs fnlly intended to try the case a t the Essex Spring Assizes, atid had
every rmson to believe that the actiori woultl he deferided ; nor had they or their
alitorneys any suspicion of a n y chaiige OF iritentioii on the part of the rlefeiidsnt until
Saturday, the 2Hth of February, whcti the deferidants attorney intirnated that he
should not plead. The plairititts :tttortieys acted throughorr t iri the bon2 fide belief
and expectation that the cause \voulcl be tried at the ;tpproachitig assizes, arid they
cqnsequentlr proceeded to prepare their bricfs. Thc last order for time to plead
e;fpiring on )he 2nd of March, :itid rio ple:t having I J O delivered,
~ ~ the plaiittifs signed
jqdgment or4 the 3rd.
I On the qxation of the plaintiAs costs on the 81st of March, the following items
wwe objectqd to fly the c1eferid:ttits attorney, on the ground t h a t they were not
properly allowable hefore issue joitied :-
Instrucbioiis for brief ; aboiit 50 witricsses (several resident
away from London), aud voluminous ptpers . 3x1 10 10
Drawing brief, iri part: fo 290 . . 14 10 0
Three fair copies, with brief pledings uid documents i n
brief: fo. 344 . 17 4 0
Three copies deed of gift, ruortgnge, leases, corresporiderice,
&e., to accompany : Lo. 336 each, less 30 folios of one copy
uot copied . . 17 li 0
Drawing instructions to counsel to advise on evidence, and
copy; fo. 8 . . 0 1 0 8
Fee to Mr. B. to peruse papers, aud advise . . 7 12 0
(a) The question of damages was referred.