CH. I. PART IX. the limits of the private fishery. It was held that the statute applied to those who bona fide and reasonably believed that they were acting under the statute, although in fact they were not, and that the defendants were entitled to the protection of the section which provided for notice of action and a special period of limitation. In such a case it is not necessary that the person claiming the protection of the statute should have had reasonable grounds for his belief; the question for the jury is-did the defendant believe honestly in the existence of those facts which, if they had existed, would have justified his doing as he did? (1). The case of Hughes v. Buckland was followed in Lea v. Facey (2), where the Court of Appeal held that a person who was not in fact legally a member of a local authority, but who bona fide believed himself to be such, was entitled to the protection of sect. 264 of the Public Health Act, 1875. An action was brought against a canal company for diverting the water of certain streams. The defendants were empowered by Act of Parliament to supply their canal with water from all streams within a certain distance, but were prohibited from taking water from certain specified streams during certain months of the year, except that water might be taken from one of these streams when it overflowed. The action was referred, and the award found that the water had been taken from the specified streams during the prohibited months and when the excepted stream was not overflowing, and that the taking such water was prohibited by and not done in pursuance of the Act, which provided a special period of limitation for anything done in pursuance of the Act or in the execution of the powers and authorities granted by the Act. The Court of King's Bench held that the (1) Hermann v. Seneschal, 13 C. B. N. S. 392; 32 L. J. C. P. 43; Roberts v. Orchard, 2 H. & C. 769; 33 L. J. Exch. 65; Chamberlain v. King, L. R. 6 C. P. 474, explaining Leete v. Hart, L. R. 3 C. P. 322; but see Agnew v. Jobson, 47 L. J. M. C. 67. (2) 19 Q. B. D. 352. CH. I. award was bad, that the taking of the water might be PART IX. so far a thing done in the execution of the powers and authorities given by the Act as to entitle the company to the protection of the Act (1). In Selmes v. Judge (2), the defendants, who were surveyors of highways, had made an illegal rate under a repealed statute, and were sued by a person who had paid the rate for a return of the money paid; the defendants relied on the protection of the Highway Act, 1835 (3), and the Court of Queen's Bench held that they were entitled to it on the ground that, in acting as they had done, they bona fide believed that they were doing what the law allowed, and that though they had intended to act under a repealed statute which gave them no protection, yet they were entitled to the protection of the statute under which they did in fact act. A person acting under statutory powers may erroneously exceed the powers given or inadequately discharge the duties imposed by the statute, yet if he acts bona fide in order to execute such powers or to discharge such duties, he is to be considered as acting in pursuance of the Act, and is to be entitled to the protection conferred upon persons whilst so acting (4). The Larceny Act, 1861 (5), s. 103, enables any person to "immediately" apprehend without a warrant any person found committing an offence under the Act; where a person is sued for arresting another person without a warrant, the defendant cannot obtain the protection of the section of the Act which fixes a period of limitation (6), unless it is found as a fact that the arrest was immediate, and that the defendant bona fide believed (1) Gaby v. Wilts & Berks Canal Co., 3 M. & S. 580. (2) L. R. 6 Q. B. 724. (3) 5 & 6 Wm. IV. c. 50, s. 109; see p. 578. (4) Smith v. Shaw, 10 B. & C. 277; see Theobald v. Crichmore, 1 B. & Ald. 227. PART IX. that the person arrested had committed an offence under the Act (1). CH. I. Acts done in the execution of their office. With respect to actions against justices, a justice is by justices entitled to the protection of 11 & 12 Vict. c. 44, s. 8 (2), even if he exceeds his jurisdiction, provided he bonâ fide believes that he is acting in pursuance of his lawful authority; and if he acts within his jurisdiction, he is entitled to such protection, even though he acts maliciously and without probable cause (3). In Umphelby v. McLean (4), which was an action to recover the amount of an excessive charge made by the defendants as collectors of taxes for their expenses upon a distress for arrears, it was held that the protection of sect. 70 of 43 Geo. III. c. 99 (now sect. 20 of the Taxes Management Act, 1880), fixing a limitation of six months "after the fact committed" for "anything done" in pursuance of the Act, only applies to cases in which some positive act is done, and did not apply to a mere case of non-feasance, like the non-return of money in respect of which the action in question was brought. This case was followed quite recently by the Court of Appeal (5), who held that the phrase "anything done" in sect. 8 of the Justices Protection Act, 1844 (6), did not apply to words spoken; consequently, where a member of a County Council, to which, by the Local Government Act, 1888 (7), the administrative business of justices in quarter sessions had been transferred along with the rights, privileges and immunities of justices, was sued for slanderous words spoken by him at a meeting of the (1) Griffith v. Taylor, 2 C. P. D. 194. (2) See ante, p. 584. (3) Hazeldine v. Grove, 3 Q. B. 997, 1007; Kirby v. Simpson, 10 Ex. 358; 23 L. J. M. C. 165; Lawrenson v. Hill, 10 Ir. C. L. R. 498, 504; see Prestidge v. Woodman, 1 B. & C. 12; Weller v. Toke, 9 East. 364; Morgan v. Palmer, 2 B. & C. 729; Agnew v. Jobson, 47 L. J. M. C. 67. (4) 1 B. & Ald. 42. (5) Royal Aquarium v. Parkinson (1892), 1 Q. B. 431. (6) 11 & 12 Vict. c. 44. 51 & 52 Vict. c. 41, ss. 3, 28, 78, 100. CH. I. Council for the conduct of such business, it was held that PART IX. sect. 8 of the Justices Protection Act, 1844 (1), had no application. ment Acts. It has been decided that the section of the Metropolis Metropolis Management Amendment Act, 1862 (2), which provides Managea special period of limitation for actions or proceedings against the Metropolitan Board of Works (now the London County Council) or any vestry or district board or any person acting under their direction for anything done under the Metropolis Management Acts, does not apply to proceedings to obtain compensation for injuriously affecting land by the execution of the powers given by the Act. The section applies only to proceedings of a hostile character against the persons protected, and does not apply to proceedings the object of which is to ascertain what amount the Metropolitan Board of Works (now the London County Council) ought to pay (3). Neither does the section apply to a person who is not acting under the orders or directions of a district board, but who commits a trespass while making a drain in pursuance of a notice received from the board (4). But where a contractor, who had been employed by the Metropolitan Board of Works to enlarge a sewer, neglected to pump the water out of the sewer, and in consequence the plaintiff's property was injured, it was held that the neglect to pump was "a thing done or intended to be done" under the provisions of the Act, and the contractor was entitled to the protection of sect. 106 (5). In Whatman v. Pearson (6), a contractor employed by a district board was sued for negligence, his servant having left a horse and cart unattended in the (1) 11 & 12 Vict. c. 44. See ante, p. 584. (2) 25 & 26 Vict. c. 102, s. 106; see p. 585. (3) Delany v. Metropolitan Board of Works, L. R. 2 C. P. 532; L. R. 3 C. P. 111. (4) Doust v. Slater, 38 L. J. Q. B. 159. CH. I. PART IX. street at a considerable distance from the place where the defendant's work was being carried on; the horse ran away and damaged the plaintiff's property; the defendant relied upon the protection of sect. 106 of the Metropolis Management Amendment Act, 1862 (1); Byles, J., left to the jury the question whether the injury complained of was a thing done or intended to be done under the Act; the jury found that it was not, and the Court of Common Pleas refused to disturb the verdict, holding that the negligence complained of was collateral to "anything done or intended to be done." Public body acting under a statute. In Edwards v. Vestry of St. Mary, Islington (2), the plaintiff was a driver employed by contractors who had contracted with the defendants to provide horses and drivers for carts used in watering the streets under the Metropolis Management Act, 1855 (3); the defendants negligently supplied a cart with a defective axle, and in consequence the plaintiff was injured; it was held that the defendants were entitled to the protection of sect. 106 of 25 & 26 Vict. c. 102, the action being for something "done or intended to be done" under the powers of the defendants under the Metropolis Management Act, 1855. Where a statute imposes a duty upon a public body, the omission to do something that ought to be done in order to completely perform the duty, or the continuing to leave any such duty unperformed, amounts to done or intended to be done" within the meaning of the section of the statutes which provide for a period of limitation and for notice of action (4). an act The protection of sect. 264 of the Public Health Act, (1) 25 & 26 Vict. c. 102; see p. 585. 22 Q. B. D. 338. (3) 18 & 19 Vict. c. 120, s. 116. (4) Wilson v. Mayor and Corporation of Halifax, L. R. 3 Exch. 114; Jolliffe v. Wallasey Local Board, L. R. 9 C. P. 62; Poulsum v. Thirst, L. R. 2 C. P. 449; Holland v. Northwich Highway Board, 34 L. T. 137. |