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&c., no notice was given nor any proper precaution taken by the defendants to guard against the said danger to vessels lawfully navigating the said river, and passing in, along, and over the said place where the said anchor was so sunk, and by means of the premises a vessel of the plaintiffs, while lawfully navigating the said river and passing in, along, and over the said place, struck against the said anchor and was swamped.

The second count charged that the anchor became in a dangerous position, whereby vessels navigating the river and passing over the place where the anchor was sunk were in danger of striking against the same, whereof the defendants had notice, yet the defendants wrongfully and negligently allowed the said anchor to be, and kept the same for a long and unreasonable time in, the said dangerous position.

The third count charged that by the Wallasey Improvement Act 1864, it was enacted that the defendants, subject to the provisions of the said Act and the statutes incorporated therewith, might construct certain works according to certain deposited plans, and among the said works a certain pier or landing stage at New Brighton, with all such jetties, &c., and conveniences, as the defendants should from time to time think fit, and that previously to commencing the said pier, the defendants should deposit plans at the Admiralty Office for approval, and should not extend or alter the said works without the like approval, and that the defendants did deposit such plans, whereto the approval of the Admiralty was signified, yet the defendants did not construct the said pier in accordance with the said approval and the said Act of Parliament, but so that the same deviated from the line or situation thereof shown on the deposited plans, beyond the limits of deviation shown on the said plans, without the defendants having obtained such like approval to such deviation, and by reason of so doing placed and kept the anchor as in the first count mentioned, and omitted to give notice and to take percaution as in the first count mentioned.

The fourth count charged the same matter as the third count, omitting all mention of the approval of the Admiralty Office.

The material pleas were Not guilty by statute 11 & 12 Vict. c. 73, s. 139, a public Act; and 21 & 22 Vict. c. 63, s. 4; 27 & 28 Vict. c. 117, s. 2, and 30 & 31 Vict. c. 132, s. 5.(a)

(a) The following are the material parts of the enactments referred to in the plea :

11 & 12 Vict. c. 63 (the Public Health Act 1848), 8. 139: "No writ shall be sued out . . . for anything done or intended to be done under the provisions of the Act, until the expiration of one month next after notice in writing. . . clearly and explicitly stating the cause of action and every such action shall be brought or commenced within six months next after the accusal of the cause of action."

21 & 22 Vict. c. lxiii. (the Wallasey Improvement Act 1858), s. 4: "This Act shall be executed by the Local Board according to the powers and provisions of the Public Health Act 1848, and of the several Acts supplemental thereto, or otherwise relating to the public health, and from time to time in force within the limits of this Act."

27 & 28 Vict. c. cxvii. s. 2: "This Act shall be executed by the Local Board, subject to the powers and provisions of the Public Health Act 1848."

30 & 31 Vict. c. cxxxii. (the Wallasey Improvement Act 1867), s. 5: "This Act shall be executed by the Local Board, with the powers and indemnities, and according to the provisions of the Public Health Acts."

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And to the first count that the defendants did what was complained of by virtue of their powers under the Wallasey Improvement Act 1864, and the Acts incorporated therewith.

The cause came on to be tried before Kelly, C.B., at the Liverpool Summer Assizes 1871, when a verdict was found for the plaintiffs by consent for 1000l. (the full amount claimed), subject to be reduced or vacated, and instead thereof a verdict for the defendants, or a nonsuit, to be entered according to the decision of the court upon the following case (stated by an arbitrator (Mr. Higgin, Q.C.); the court to be at liberty to draw inferences of fact.

CASE.

1. The plaintiffs are the owners of steam-tug boats plying for hire within the port of Liverpool, and were on the 15th June 1870, the owners of a certain steam tug boat called the Lioness.

2. The defendants were possessed of a certain pier, bridge, and landing-stage at New Brighton, which said bridge at one end thereof was and is attached to the said pier, and at the other end thereof was and is attached to the said landing stage, which said landing stage and bridge rose and fell, and still rise and fall with the tide. The said pier was and is constructed of piles screwed down into the soil of the river, Mersey between high and low water mark, and the whole of the said pier was and is above low water mark of ordinary spring tides. The said bridge did not and does not rest upon or touch the soil or waters of the said river Mersey, and the greater part thereof in length was and is above low water mark of ordinary spring tides; the remaining part thereof was and still is suspended to the said landing stage below low water mark of ordinary spring tides, and the whole of the said landing stage which was and still is moored by anchors fixed into the bed of the river, floated and still floats upon the waters of the said river below low water mark of ordinary spring tides, and certain anchors which moored the said landing stage were and are still fixed into the bed of the said river outside the line of the said river, and below low water mark of ordinary spring tides. The river at the locus in quo runs north and south, and the landing stage, which is 204ft. long and 30ft. 6in. wide, was and still is moored in the said river lying north and south.

3. 5 & 6 Vict. c. 110, 21 & 22 Vict. c. 63, 27 & 28 Vict. c. 177, 30 & 31 Vict. c. 132, and all other Acts relating to the port of Liverpool and to the Mersey Dock and Harbour Board, a copy of the plans deposited under 27 and 28 Vict. c. 117, a plan of the said pier, bridge, and landing stage, showing the low water mark of the river at ordinary spring tides, and also the true position of the old and now disused slip as distinguished from its false position as shown in the parliamentary plan, a general plan showing the whole of the bridge, landing stage, and approaches, and a plan of the mooring of the said landing stage, signed by Admiral Evans, acting conservator, are to be taken as part of the case. (a)

(a) The following are the material parts of the Acts referred to:

5 & 6 Vict. c. cx. By sect. 1 the conservancy of the Mersey, as the same is vested in Her Majesty in right of Her Crown and of Her Duchy of Lancaster, or in the Lord High Admiral or commissioners for executing the office of Lord High Admiral, but not further or otherwise," is vested in three commissioners, who by sect 2

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4. [This paragraph, having set out in full the appointment of Admiral Evans as Acting Conservator of the river Mersey, under the powers and for the purposes of 5 & 6 Vict. c. cx., proceeded as follows:-"The plans for the construction of the said pier, bridge, and landing-stage, as also the plan showing the mode in which the landing-stage was to be moored, were all of them duly approved by the commissioners for the conservancy of the river Mersey, and by the Lord High Admiral or the commissioners for executing the office of Lord High Admiral of the United Kingdom, on the 1st Nov., 1865."]

5. No such notice as mentioned in 5 & 6 Vict. c. cx., s. 6, was sent to the clerk of the peace for the county of Chester and borough of Liverpool, and no Parliamentary plans were deposited with the clerk of the peace for the borough of Liverpool, nor was any notice given to him. Though Parliamentary plans were deposited with the clerk of the peace for the county of Chester, no notice was deposited therewith.

6. The only mooring anchor which is important in this case was laid out with an iron chain from the south end of the said landing-stage, in a southeasterly direction, in a part of the bed of the river Mersey, below low water mark of ordinary spring tides, and over which vessels navigating the said river used and had a right to sail, and where vessels navigating the said river used and had a right to bring up and anchor.

7. The said anchor was a mooring-anchor, with one fluke and an arm at the end of the anchor-shaft, running at right angles to the said fluke, and which, when the said fluke was properly imbedded in the bed of the said river, rested upon the bed of may exercise all jurisdiction exerciseable by the Admiralty, and by sec. 3 may appoint an acting conservator "for the purposes of the Act."

Wallasey Improvement Act 1864 (27 & 28 Vict. c. cxvii.), sect. 7: The local board may make and maintain in the line defined on deposited plans, and upon the lands delineated in the said plans a pier or landing stage at New Brighton . . . . together with all such jetties, esplanades, landing places, toll gates, or bars, and other works and conveniences in connection therewith, as the local board shall from time to time think fit.. Sect. 8: Previously to commencing the pier or landing stage the local board shall deposit at the Admiralty office plans. . . . of the said landing stage and works connected therewith for the approval of the Lord High Admiral of the United Kingdom or the commissioners for executing the office of Lord High Admiral, such approval to be signified in writing under the hand of the Secretary of the Admiralty, and such pier or landing stage shall be constructed only in accordance with such approval. . . . . Sect. 15: The local board in the construction of the pier or landing stage may deviate laterally from the line... shown on the deposited plans to the extent of the limits of deviation, and may deviate from the lands shown on the deposited sections as regards the pier and landing stage, not exceeding five feet.

Wallasey Improvement Act 1867 (30 & 31 Vict. c. cxxxii.), sect. 24: In connection with their ferries, the local board from time to time may erect and provide such warehouses, sheds, and other buildings, works, and conveniences as they think necessary for the loading and unloading of animals and goods.

as

The state of things shown by the plans was follows: The pier only was executed upon the lands delineated on the Parliamentary plans. The landing stage, bridge, and moorings were executed in conformity with the Admiralty plans, and did not extend beyond the limits fixed by them. The Admiralty plans extended beyond the limits of deviation prescribed by sect. 15 of the Act of 1864. Lastly, the buoy was marked upon the Admiralty plans.

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the river, and to the ring at the end of the shank was attached a long piece of light iron chain, having at the end of it a piece of timber, intended to act as a buoy, but which piece of timber, by reason of the strength of the current of the river, was carried below the surface of the water, and in no respect indicated the position of the mooringanchor below, except at and about dead high and low water of the tides. The said piece of timber was wholly insufficient to indicate the position of the anchor, and the defendants were guilty of negligence in not placing a buoy of sufficient size and dimensions over the anchor to resist the current of the ebb and flow of the tides, so as properly and efficiently to indicate the position of the anchor below.

8. The defendants frequently, and as often as they deemed necessary, with a long rope, each end of which was attached to a boat, swept over the whole of their mooring anchors, including the mooring anchor in question, in order to ascertain whether the said anchors were in their proper places and undisturbed, and this they had done two or three days before the occurrence hereinafter mentioned.

9. The defendants were not guilty of any negli gence in the mooring anchors they used, in the mode of laying them down, or in the means they adopted to ascertain from time to time whether they were undisturbed, and in doing what is complained of, acted in the bona fide belief that they were acting under the powers given them by their Act of 1864, and the Acts incorporated therewith. 10. The plaintiffs did not give the defendants any notice of action.

11. Early in the morning of the 15th June 1870, the plaintiffs' steam tug boat Lioness anchored 400 or 500 yards to the south and east of the said landing stage, and in about four hours afterwards, having lifted her anchor, the tide being an ebb tide and near low water, she struck against the arm of the said mooring-anchor, which went through the bottom of the said steam tug boat Lioness, and there and then sank her, and caused her considerable damage. She was afterwards raised, taken in dock, and repaired.

12. The said mooring anchor, by some means unaccounted for and unknown to the defendants had been lifted from the bed of the said river, and the arm of the said anchor, instead of resting in a horizontal position upon the bed of the said river, had assumed an upright position, and penetrated the bottom of the steam tug boat.

13. The plaintiffs were guilty of no negligence whatsoever in navigating the said steam tug boat, in anchoring, or in raising the anchor, but in all respects navigated and managed the said steam tug boat in a lawful, careful, seamanlike, and proper

manner.

14. There was no floating landing stage at the locus in quo, or at or in connection with the old slip, but the present floating landing stage is the only one which has ever been placed in that part of the river Mersey.

15. The question for the opinion of the court is whether the plaintiffs are entitled to recover from the defendants upon the facts as stated in this case. If the court should be of opinion in the affirmative, then the verdict is to stand, but the damages are to be reduced to the sum of 550l. If the court should be of a contrary opinion, then the verdict which has been entered for the plaintiffs is to be vacated,

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and instead thereof a verdict or nonsuit is to be entered for the defendants.

Signed, W. H. HIGGIN.

Nov. 10.-Aspinall Q.C. (Leofric Temple Q.C. with him) for the plaintiffs. First, the defendants bad no right to construct the landing stage in the channel of a navigable river. They had no power either by statute or common law so to do; secondly, assuming that they had such a right, then they having anchors in the fairway of a navigable river, were bound to take precautions so as to prevent damage being caused by them to passing vessels, and the defendants have been expressly found guilty of negligence in this respect; thirdly, no notice of action was necessary.

I. By 27 & 28 Vict. c. cxvii. s. 7, the defendants are empowered to construct "a pier or landing stage at New Brighton," with adjuncts. But this floating landing stage is out of the limits prescribed by the plans and sections referred to in the statute. The plans show no floating stage at all, but only a fixed pier. And this stage is not within the provision as to "landing places," which does not relate to a construction as large as the principal work. [BRETT, J. One cannot call it an" erection any more than one would call another floating ship in the river by that name. This stage does not occupy any fixed place on the land, but moves with the tide.]

II.-Independently of statutes this is a nuisance:
Hart and Hart v. Mayor of Albany, 9 Wendell, 572,
per Sutherland J., p 584;
White v. Crisp, 10 Ex. 312.

[DENMAN, J., referred to The Mayor of Colchester v. Brooke (7 Q. B. 339). The Free Fishers of Whitstable v. Gunn (11 H. of L. C. 192: 35 L. J. 29, C. P.; 12 L. T. Rep. N. S. 150) went further still, while confirming the court in the case of the Mayor of Colchester v. Brooke (sup).] It did. So also

White v. Phillips, 15 C. B., N. S., 845;
Brown v. Mallett, 5 C. B. 599.

An anchor without a buoy to mark its position is more likely to be dragged up by the cables of vessels near than an anchor having a buoy. In the Black Book of the Admiralty (published by the master of the Rolls), p. 111, it is said that "Two ships or more lying in a haven at scant of water, and one of the anchors lying too near another ship, the master of the said ship ought to say, ' Master, take up your anchor, it is too near us and may do us harm.'. . . . And if they lie dry in a haven they ought to set marks and buoys at their anchors that may plainly be seen above the water." [BRETT, J.-That passage seems only to apply to two vessels having a foul berth from having anchored too close together.] If they "lie in a dry haven," they ought to buoy the anchor; where the ship is afloat she herself acts as a buoy by indicating the position of the anchor at which she rides. [BRETT, J.-Do you contend that the Black Book is an authority for saying that whenever a ship takes ground at anchor she is bound to buoy it?] Yes, whenever the ship herself has ceased to be a buoy. In the Laws of the Sea (edition of 1705), p. 142 article 15 is one of same tenor with the passage from the Black Book, and the observation is that the Ordinances of Wisbury require masters to put out buoys to warn others where their anchors lie, on pain of making satisfaction for whatever damage may happen for want of them, for anchors hid

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under water may do a great deal of mischief at ebb and low water. So in Hale, De Portibus Maris, p. 85, "The leaving of anchors in the ports without buoys or marks, whereby ships or vessels may strike against them and be spoiled," is mentioned as one of the "nuisances that are common to all men that have occasion to come, go, or stay at ports." An obligation lies on every one who has a thing which is reasonably liable to become dangerous to take reasonable precautions to protect persons from it.

III. As to notice of action.

The right to

such notice is contained in 11 & 12 Vict. c. 63, s. 139 (The Public Health Act). No doubt the defendants are a local board. In their plea they refer to 21 & 22 Vict. c. 63, s. 4; 27 & 28 Vict. c. cxvii, 8, 2. But it does not follow that what is done under the local Act is done uuder the Public Health Act, so as to make the notice of action prescribed by the latter statute necessary. The Public Health Act (see 30 & 31 Vict. c. cxxxii, s. 5), is only in force in Wallasey township so far as relates to particular limits. And the anchor and chain at least were outside those limits. The act of negligence consists in not guarding the anchor; but that is not something done in execution of the Act. And no amount of bona fide belief that they were acting under the powers of an Act of Parliament will protect the defendants, if they were in fact doing something altogether beyond the powers of the Act. had, as it were, executed the Act, and this omission to place a proper buoy was a distinct act of negligence five years afterwards. [DENMAN, J.Their Act empowers them "to make and maintain" the works.] Assuming, however, that this confeasance comes within the provision as to notice under the words "thing done not intended to be done" as defined in Newton v. Ellis (5 E. & B. 115), there the defendant was actually doing the works authorised, and while doing them omitted to light them: whereas here the works had been long since done: (see as to this the judgment of Coleridge, J., in Newton v. Ellis.) [BRETT, J.-Suppose a drain made twenty years ago falls in for want of repair, would notice of action be needed?] No, for there would be mere nonfeasance.

They

Sir John Karslake, Q.C. (R. G. Williams and Douglas Walker with him) for the defendants.First, the defendants had a right, under the Act, to put the stage on the foreshore, and also the floating dummy, with a connecting bridge. [He reviewed the Acts in question.]

Secondly, they were entitled to notice of action. On the statement in the case the anchor in its proper position could not be a nuisance at all, and it is not found that the anchor itself is a nuisance. Assume the defendants had gone beyond their power, they would still be entitled to notice of action, the only good of which is when powers are exceeded bond fide. [The learned counsel read paragraphs 8 and 12 of the case as to the cause of accident.] The plaintiffs argue that it is an act of omission, and, therefore, that the Act does not apply. But the Act complained of is the negligently omitting to put a better appliance to show where the anchor was. A buoy has been placed and maintained, but the arbitrator says that the buoy is not so good as it might be, so that the defendants are guilty of negligence; and, although it may be described as

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omission, yet it is within the observations of Lord Campbell, C.J., in Newton v. Ellis (sup.): “I am of opinion that the defendant was a person acting under the direction of the Local Board." Sect. 139 of the Public Health Act 1848 is to be read into the local Acts. The defendants will then be protected; although what is complained of was an act of omission:

Newton v. Ellis, 5 E. & B. 115;
Davis v. Curling, 8 Q. B. 286;

Wilson v. Mayor, &c., of Halifax, L. Rep. 3 Ex., 113;
17 L. T. Rep. N. S. 660;

Selmes v. Judge, L. Rep. 6 Q. B. 724; 24 L. T. Rep.
N. S. 904.

Nor was the putting down of the anchor in itself a nuisance. It is an open question whether the owners of a ferry might not put down such an anchor, independently of the Act. It is not necessarily a nuisance to do such a thing: (R. v. Russell 6 B. & C. 566) [KEATING, J.-Do you contend that the public have not a right to every portion of a navigable river?] According to R. v Russell, this right may be infringed without creating a nuisance. Nor is the anchor here found to be a nuisance. [KEATING, J.-Would it be necessary to find such a thing? Is it not an undoubted nuisance to place any obstruction in any water which ships usually navigate ?] The defendants had done nothing to the anchor to make it dangerous; they had swept a day or two before the accident, and found all right, and afterwards the anchor went wrong from some unknown cause, for which the defendants cannot he held responsible: (White v. Phillips) (sup.). [KEATING, J.-The fact of the precautions taken show their own opinion of their liability.] Everybody must have known of the anchor. The plaintiffs passed over the anchor, expecting to find it properly placed; it had been properly placed, but the accident arose from its having been displaced. [DENMAN, J.—But as an anchor is liable to be displaced, an anchor ought to be buoyed, and the not buoying it would seem to be negligence. KEATING, J.-You are inviting us to say that the buoy would not have prevented the accident.]

Aspinall, in reply.-As a matter of fact, not only the anchor, but even the landing stage, extends beyond the prescribed limits within which the local board has authority to construct works. The meaning of limits of deviation is that the works may or may not extend within them, according to circumstances, but may not extend an inch beyond them. By 27 & 28 Vict. c. cxvii, s. 2, the board has authority only to construct works upon the lands delineated upon the said plans. It has been suggested that the landing stage was a "convenience," but whatever it is, it is one of the "works" under the Act, and these may be constructed only on the "lands prescribed by the Act. [BRETT, J.-It may be that "works" includes pier, landing stage, and reservoir. DENMAN, J.—If you may take the strict grammatical view, your argument is strong; but looking to the way in which Acts of Parliament are drawn, is it not more probable that the words are added loosely on purpose to make a working scheme?] The whole river Mersey is delineated on the plans. Is it as arguable that the works may extend over the whole river, as that the narrow construction of the words should prevail? Every plan contains such delineations, for the purpose of illustration, but nothing more. The board might have had power conferred upon them to occupy the whole river, but they have not got it. 5 & 6 Vict. c. cx, from

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which the Conservators of the Mersey derive their powers was much pressed upon the arbitrator, and he probably thought that this enactment was incorporated in the Wallasey Improvement Acts, whereas it is not. [Karslake observed that he did not rely upon this statute, and that it had not been noted in the margin.]

Cur. adv. vult.

Nov. 13.-KEATING, J.-We have carefully considered this case, which, no doubt, is of considerable general importance. It is also of peculiar local importance, both to parties using this ferry and landing-stage, which is the subject of the action, and to all the inhabitants of Liverpool. The plaintiffs complain that while they were lawfully navigating this water where they might lawfully navigate it, while they were exercising an undoubted legal right, their vessel struck against the stock of an anchor, placed there by the defendants, which went through the bottom of the vessel, and caused them very considerable damage.

Now, it appears from the facts in the case, that the defendants are the Wallasey Local Board, and as such local board have, by virtue of several Acts of Parliament, been allowed to engage in the transport of passengers by a ferry upon the Mersey, and to procure boats and other articles and appliances for the purpose of conducting that ferry. Such was the state of things up to the Act of 1864 (27 & 28 Vict. c. cxvii). What led to the passing of that Act was that it was found that the landing place already erected was inconvenient, and therefore it was sought by the defendants to obtain powers from Parliament to construct a ferry and landing stage for the purpose of facilitating the embarking and landing of the passengers at New Brighton. Accordingly the Act of 1864 was obtained, and under that Act a pier and landing stage was constructed. The pier was constructed as a solid structure, but from the pier there ran a bridge to a landing place, which was a structure floating upon the river, and that landing place was so made under the powers of the Act of 1864.

But the plaintiffs contend, first, that in the construction of the landing stage the defendants oxceeded the powers of this Act; that they constructed the landing stage in a way not authorised, and partly in a place not authorised, and then, for the purpose of securing the landing stage, threw out a certain cable from the part not authorised, to which cable was attached the anchor which caused an undoubted injury to their vessel.

Upon the question whether these works were authorised, although the Act is by no means perfectly clear, I think it right to deliver the opinion which I have come to, which is that the Act did authorise these works. The plans are before us, and there is no doubt as to the mode in which this landing stage was constructed. Mr. Aspinall has argued upon the plans at great length and with great ability, and has pointed to certain limits of deviation in the Parliamentary plans, and I think he is right in saying that the Legislature did not authorise expressly any structure beyond certain red lines. Now the northern part of the landing stage is within these lines, and Mr. Aspinall does not, as I understand, contend that that portion of the landing stage was not authorised by the Act. But the southern part is beyond them, and the difficulty arises with reference to that part of the landing

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stage. Now the landing stage, as it has been constructed, and with respect to a part only of which a doubt has arisen, is made under sect. 7 of the Act of 1864. [The learned judge read the section.] Under this section, in my opinion, the local board is undoubtedly confined to "lands" within the limits of the plans, with reference to any permanent structure which they erected; for I think that the words "upon the lands delineated in the said plans" override all the subsequent words in the section. [The learned judge having observed that the conservators of the Mersey represented the Admiralty office, then read sect. 8 and proceeded.] It appears that plans were deposited in fact, and that the approval of the Admiralty was in fact obtained to plan B which, it is admitted, faithfully represents the state of things as it now exists-represents the landing stage as it was afterwards constructed, and the anchor as afterwards laid in the bed of the river. In every respect it represents the works which received the approval of the Admiralty under sect. 8. Now, what is the meaning of these two sections? I think the intention of the Legislature was, "We will deal with the taking by the local board of any lands which it may be necessary to schedule in the book of reference; but in the construction of the landing stage there may arise something that will interfere with the navigation of the river, and therefore we will require that the plans shall be approved by the Admiralty, and that the works shall be executed according to their approval. It was intended, that is, that everything connected with keeping the water way clear should be left, as it was left, in the best possible hands, in the hands of the Admiralty, or of the Conservators of the river. Their approval draws with it the sanction of the Legislature, as much as if the works which they have approved had been originally authorised by the Act itself. I am not quite clear upon the meaning of the Act of Parliament, but I think that the landing stage and the moorings have thus become legalised structures.

As a

But even assuming this to be so, Mr. Aspinall contends, and I think properly, that the local board were bound to exercise their powers with due care; and he says that as the arbitrator has found that the laying down of insufficient buoys was an act of negligence, for which the defendants are to be held responsible, I think that they are so responsible, and would be so responsible even if the anchor had in the first instance been legally placed where it was. matter of fact, looking to the whole of this case, I come to the conclusion that the negligence complained of was negligence causing the accident in question. Taking the whole finding of the arbitrator together, my impression is that the negligence which the arbitrator meant to find here was a negligence contributing to the accident, and therefore I think that that would give the plaintiffs in this case a cause of action against the board.

There remains the question whether notice of action was requisite; and I must say, for myself individually, that I very much regret that the case should be decided on any such point: but the point is raised in the case, and we are bound to consider it. I am of opinion that the defendants were entitled to notice of action under the Public Health Act 1818, sect. 139. But the ques

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tion arises chiefly under subsequent Acts under which the landing stage was constructed. Does the Act of 1848 extend to them? That chiefly depends upon sect. 7 of the Act of 1864. But it is material to consider the objects of the Act of 1864, and look to the recital in the preamble of that Act. [The learned judge read the preamble.] The Legislature then, having recited these objects, goes on to enact that the Act shall be carried out subject to the powers and provisions" of the Public Health Act 1848. I think that these words are quite large enough to take in sect. 139 of the Act of 1848, which is a "provision" of that Act, and a most important one. All the reasons for sect. 139 would be reasons for extending its operation; it would be just as much wanted in working the latter as in working the former Act. But Mr. Aspinall says that the local board are limited to the Wallasey district. I think, however, that the intention of the Legislature was to make the construction of the works a workable scheme in all its parts, and it could not be worked in all its parts if it were confined to the limits that Mr. Aspinall would assign.

But there still remains the question-argued at great length-whether the acts complained of were acts that could be done within the meaning of the statutes stated to authorise them, so as to entitle the board to notice of action. Now the arbitrator has found a bonâ fide belief in the defendants in this respect. The finding is as express as it can possibly be, and if it were necessary, I would say that we are not bound by it. But I see no reason to differ in the slightest degree from the propriety of that finding. It is said, however, that the provisions as to notice of action do not apply to a nonfeasance. I think that the cases of Wilson v. Mayor of Halifax (L. Rep. Ex. 113), Davis v. Curling (8 Q. B. 286), Newton v. Ellis (5 E. & B. 115; 24 L. J. 337, Q. B.), and Selmes v. Judge (L. Rep. 6 Q. B. 724) establish the exact contrary. But the defendants are not driven to a case of dry nonfeasance. The case for the plaintiffs is, not that the defendants have omitted to set up a buoy, but that they have set up a buoy which proved ineffectual. That is, they inefficiently did that which they were bound to do, and the arbitrator has found that they have done it negligently. This is an act which, if they did, and intended to do, as the arbitrator finds, in the belief that they were complying with their Act, comes within the statutory protection. Notice of action indeed is always required where something has been done which ought not to have been done; otherwise no notice would be necessary, for there would be no action. I cannot help repeating my regret that the point should have been taken, and the case decided upon it.

BRETT, J.-I apprehend that the plaintiffs shape their case in one of two ways. First, they say that the defendants had placed an unauthorised structure in a tidal river, that is to say, in a public highway, so as to become an obstruction and a nuisance to the highway, whereby, without any negligence on their own part, the plaintiffs suffered damage. And this no doubt is a valid cause of action. But the plaintiffs go further, and say that even if the obstruction were authorised by Act of Parliament, yet if they did place the obstruction in the river, the defendants were bound not to do something which they have done, or to do