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194
1903]
(London) Act, 1891, the following state of things must exist before any obligation
additional to the Common Law, can be cast upon the owner (the equivalent
to the ' landlord ' under the by-laws) —(I.) A nuisance injurious to health,
and (II.) inability to find the person by whose act, default, or sufferance the
nuisance exists, or structural defect the cause of the nuisance; (d) that even if
the by-law be otherwise good, in making the landlord responsible it is unreasonable,
because it does not cast a primary, or at least a concurrent liability
upon the lodger to cleanse his rooms, and also relieves the " keeper," who has
more immediate control of the premises than the landlord, from all liability in
the matter, either concurrent or prior, so far as the rooms and exclusive staircases,
etc., are concerned.
In the Islington case Messrs. Nokes and Nokes .appealed against the
decision of the Magistrate, while in the Stepney case the Borough Council of
Stepney appealed against the decision.
After considerable delay the appeals were heard conjointly by the High
Court of Justice, where they were fully argued, with the result that the
by-laws were declared unreasonable, not on the point raised by Messrs.
Nokes and Nokes, that the time specified was too limited, but on the ground
that the by-law did not provide for the service of a notice, and that in consequence
a person who, under certain circumstances, was merely entitled to the
rack-rent of the premises might become liable to penalties under the by-laws.
There was no objection to a by-law which, under certain circumstances, placed
responsibility on the landlord, but the objection to the particular by-law was
that a landlord, who might be quite unaware that the requirements of the
by-laws had not been complied with, would be subjected to penalties without
a notice having been served on him. It is a singular fact that although it was
not necessary in this particular case to serve a notice on Messrs. Nokes and
Nokes, they had in fact been served with one, yet because the by-law did not
provide for the service of a notice under the circumstances mentioned, it was
declared to be bad. On the other hand the court held on the point raised by
the appellants as to the limited period of time in which to effect the cleansing,
that the by-laws were not bad. Thus Messrs. Nokes and Nokes succeeded on
a point not raised in their pleadings, but by the Court itself.
The judgment of the Court is so important and so far reaching in its
results, for it effects nearly all the by-laws in the country, that it is now given
in extenso.