Newton against Henry Ellis

[115] newton against henry ellis. Friday, May 25th, 1855. Defendant contracted with a local board of health to dig wells for them, according to a specification prepared by the surveyor: the works to be done to the satisfaction of such surveyor; and the digging to be done entirely under his direction: the surfeyor to have power, if he considered the materials or works improper^ of making the contractor remove them, or of removing them at the contractor's expence; and of ordering the dismissal of workmen with whom he should be dissatisfied, or of dismissing them himself: the Board to have the power of making alterations and additions.-Defendant was sued for having left a hole, excavated in working one of the wells in a highway, without light by night; whereby plaintiff, who was driving a carriage along the way, fell into the hole, and was bruised, and his carriage injured.-Held, that defendant was entitled to notice of action, under sect. 139 of The Public Health Act, 1848 (11 & 12 Viet. c. 63). [S. C. 24 L. J. Q. B. 337; 1 Jur. N. S. 850; 3 W. E. 476. Not applied, Williams v. Golding, 1865, L. E. 1 C. P. 78. Principle applied, Poulsum v. Thirst, 1867, L. E. 2 C. P. 451, Eeferred to, Jolliffe v. Wallasey Local Board, 1873, L. E. 9 C. P. 81.] Declaration charged that plaintiff, before and at the time of the committing &c., was lawfully possessed of a carriage, and of a horse drawing the same, in wljich carriage plaintiff was then riding with his son in the night time, iu and along a public and common highway : yet defendant, well knowing the premises, while plaintiff was so possessed &c., and riding &c., wrongfully, negligently and improperly made and dug a certain bole or cutting in and into the soil of the said highway, and kept and continued the same, so made and dug, during the night time without fixing or placing, or causing to be fixed or placed, any proper or sufficient light or signal at or near such hole or cutting, to denote or shew that the same was so made and dug as aforesaid : that, by reason thereof, the carriage in which plaintiff and his son were riding, in and along the said highway as aforesaid, waa then driven and upset into the said hole or cutting: and, by reason thereof, plaintiff and his son were thrown with great BEL. SBL.116. NEWTON V. ELLIS force and violence out of the said carriage, and were bruiaed &c., and the carriage was broken &e. Plea : Not guilty. In the margin was written : " By statute. The Public Health Act, 1848, 11 & 12 Viet. c. 63, s. 139, a public Act." Issue thereon. [116] On the trial, before Alderson if., at the last Lincolnshire Assizes, it appeared that The Local Board of Health of Holbeaeh in Lincolnshire (constituted by a provisional order of The General Board of Health, confirmed by stat. 13 & 14 Viet. c. 108), had, upon the application of some inhabitants of the district, resolved that five new wells ahould be made, at places severally specified, one being " on the Boston Road, in a place to be selected by the surveyor" (a); and that the clerk should advertise for tenders, on receiving specifications from the surveyor. The specifications were prepared ; and the advertisement issued accordingly : and the defendant contracted to make the wells, by contract under seal, of which the parts material to the present decision were as follows. "Articles of agreement, made" 25th September 1854, between Hanry Ellis, "of the one part, and the undersigned, being five members of The Holbeach Local Board of Health, in the county of Lincoln, of the other part. Recital that the Board had received from defendant...