Second plea, that the acts and things complained of and each and every of them were and was committed and happened after the passing and coming into operation of "The Croydon Commercial Gas and Coke Act" (10 & 11 Vict. c. cxxiv.), and after the 1st day of August, 1849; and that the said acts and things and each and every of them were and are, and was and is, such and the like acts and things, act and thing, as are and is described and mentioned in the 21st section of the Gasworks Clauses Act, 1847 (10 & 11 Vict. c. 15), and no other; and that the plaintiff is not and never has been the person into whose water the washings or other substances produced in making or sup plying gas in such act mentioned (being the washings and other waste liquids, substances, and things in the declaration mentioned), were conveyed or flowed, or the person whose water was fouled.

To this plea the plaintiff demurred, the ground of demurrer stated in the margin being, "that the plaintiff's right to sue for the penalty given by the 10 G. 4, c. lxxiii., s. 27, is not taken away by the 10 & 11 Vict. c. cxxiv., incorporating the 10 & 11 Vict. c. 15, s. 21, and that the two penalties are cumulative."

*Grant, in support of the demurrer.(a)—The plaintiff sues [*581 for a penalty incurred by the defendants under the 27th section of the Croydon Lighting and Improvement Act, 10 G. 4, c. lxxiii., which enacts, "that, if the said commissioners [the commissioners for carrying the Act into operation], or any company or companies, or any other person or persons whatsoever, making, furnishing, or supplying any gas used or burnt for lighting any highway, street, or place, or any house, manufactory, building, or other premises within the limits of this Act, shall at any time drain or convey, or cause or suffer to be drained or conveyed, or to run or flow, any washings or other waste liquids, substances, or things whatsoever, which shall arise or be made in the prosecution of the said gasworks, into any river, brook, or running stream, canal, reservoir, aqueduct, feeder, pond, or spring-head, or into any drain, sewer, or ditch, communicating with any of them, or do or cause to be done any annoyance, act, or thing to the water contained in any of them, whereby the water contained therein, or any part thereof, shall or may be spoiled, fouled, or corrupted, then and in every such case the said commissioners, or any such company or companies, or other person or persons as aforesaid, shall forfeit and pay for every such offence the sum of 2007.; and such penalty and forfeiture shall and may be sued for and recovered, together with full costs of suit, in any of His Majesty's Courts of record at Westminster, by action of debt or on the case, or by bill, *plaint, or information, &c.; and such penalty shall be [*582 paid to the person or persons who shall inform or sue for the same." The defendants are incorporated for the supply of gas to Croydon and its vicinity by the 10 & 11 Vict. c. cxxiv., with which act the Companies Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16), and the Gasworks Clauses Act, 1847 (10 & 11 Vict. c. 15), are incorporated. And the question will be, whether the 27th section of the

(a) The points marked for argument on the part of the plaintiff were as follows:"1. That the plaintiff's right to sue for the penalty given by the 10 G. 4. c. lxxiii, s. 27, is not taken away by the 10 & 11 Viet. c. cxxiv, incorporating the 10 & 11 Vict. c. 15, s. 21. "2. That the penalties given by the said two Acts are cumulative."

first-mentioned Act is repealed by any of the provisions of the lastmentioned Act. The material sections are the 21st, 22d, and 29th. The 21st section enacts, that "if the undertakers shall at any time cause or suffer to be brought or to flow into any stream, reservoir, or aqueduct, pond, or place for water, or into any drain communicating therewith, any washing or other substance produced in making or supplying gas, or shall wilfully do any act connected with the making or supplying of gas, whereby the water in any such stream, reservoir, aqueduct, pond, or place for water shall be fouled, the undertakers shall forfeit for every such offence the sum of 2007." The 22d section enacts that "the said penalty of 2007. shall be recovered, with full costs of suit, in any of the súperior Courts, by the person into whose water such washing or other substance shall be conveyed or shall flow, or whose water shall be fouled by any such act as aforesaid; but such penalty shall not be recoverable unless it be sued for during the continuance of the offence, or within six months after it shall have ceased." And the 29th provides that "nothing in this or the special Act contained shall prevent the undertakers from being liable to an indictment for a nuisance, or to any other legal proceeding to which they may be liable, in consequence of making or supplying gas." It is submitted that these provisions in the general Act do not repeal that contained in the *special Act, but that the second penalty is cumulative. It is *583] a well-known rule of construction, that a subsequent general Act of Parliament does not repeal or affect a prior special Act, in the absence of express words of reference: Fitzgerald v. Champneys, 2 Johnson & H. 31. Vice-Chancellor Wood in a very elaborate judg ment goes through the principal authorities. "The Act for the abo lition of fines and recoveries (3 & 4 W. 4, c. 74)," he says, "provides that 'every actual tenant in tail, whether in possession, remainder, contingency, or otherwise, shall have full power to dispose of, for an estate in fee simple absolute, the land entailed, as against all persons claiming the land entailed by force of any estate tail which shall be vested in or might be claimed by, or which, but for some previous Act, would have been vested in, or might have been claimed by, the person making the disposition at the time of his making the same, and also as against all persons, including the King's most excellent majesty, his heirs and successors, whose estates are to take effect after the determination or in defeasance of any such estate tail;' yet no one could argue successfully that those words, large as they are, would affect the entails made by special Acts of Parliament, such as the Marlborough, the Wellington, or the Shrewsbury entails. The reason in all these cases is clear. In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and, having done so, they are not to be considered, by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated." [ERLE, C. J.-Are there any words in the later Act showing *584] an intention on the part of the legislature to make an alteration in respect of the penalty? That is the question. By the 27th section of the special Act, the penalty is recoverable by action at the

suit of a common informer. By the 22d section of the general Act, the penalty given by s. 21 (which is a penalty given in respect of the same offence as that specified in the special Act) is recoverable by action at the suit of the party injured. Does this latter supersede the former, or is it cumulative? WILLES, J.-The rule is "Generalia specialibus non derogant." This is a case in which the second Act has a special provision in regard to the same matter.] In the case of The Trustees of the Birkenhead Docks v. Laird, 4 De Gex, M'N. & G. 732, it was held that a private Act of Parliament does not repeal a former private Act by implication: therefore, where a private Act of Parliament gave power to Commissioners to construct a sea-wall, the property in which was to be vested in them, with liberty to proprietors of adjoining lands to purchase portions of the wall, and to make openings in it under the superintendence of the engineer of the Commissioners, it was held, that, under a subsequent Act empowering a dock company to take some adjoining lands and to make such works for the purposes of their undertaking "as they might deem expedient," the power thus conferred was subject to the provisions of the former Act. [WILLIAMS, J.-The 23d section of the 10 & 11 Vict. c. 15, provides, that, "in addition to the said penalty of 2007. (and whether such penalty shall have been recovered or not), the undertakers shall forfeit the sum of 201. (to be recovered in the like manner) for each day during which such washing or other substance shall be brought or shall flow as aforesaid, or the act by which such water shall be fouled shall continue after the expiration of *twenty-four hours from [*585 the time when notice of the offence shall have been served on the undertakers by the person into whose water such washing or other substance shall be brought or shall flow, or whose water shall be fouled thereby, and such penalty shall be paid to such last-mentioned person." Surely that is inconsistent with the provision in the former Act.] It is a totally separate enactment as to the 207. per day.

Honyman (with whom was Philbrick), contrà, was not called upon.(a)

ERLE, C. J.-This is an action brought by a common informer against the defendants upon the 27th section of the Croydon Local Improvement Act, 10 G. 4, c. lxxiii., for fouling the water of certain streams with gas-refuse, whereby they are said to have incurred under that Act a penalty of 2001. No doubt, if there had been no subsequent legislation on the subject, that enactment being distinct, the defendants would have been liable. But the defendants by their plea rest their defence upon a subsequent statutory provision, which they contend deprives the common informer of the right to sue, and gives the penalty to the party *injured by the wrongful act. The defendants are incorporated by an Act of 10 & 11 Vict. c. cxxiv., [*586

(a) The points marked for argument on the part of the defendants, were as follows:"1. That the defendants, as a Company formed under the provisions of the 10 & 11 Vict. c. cxxiv., are not subject to the provisions of the 10 G. 4, c. lxxiii., s. 27:

2. That the latter Act is repealed by the former as to all offences included in The Gasworks Clauses Act, 1847, 8. 21:

3. That the defendants' plea shows that the alleged offence was so included, and that they are therefore not liable to the penalty sued for:

"4. That, having regard especially to the introductory recital of The Gasworks Clauses Act, 1847, it is evident that the legislature did not intend the two penalties to be cumulative,”

the 1st section of which incorporates therewith the Gasworks Clauses Act, 1847. That general Act, must, therefore, be read as part of the Croydon Gas Act: and the question is whether the enactments of that Act with regard to the penalty and its application are inconsistent with those of the earlier local Act. The title of the Act is, "An Act for consolidating in one Act certain provisions usually contained in Acts authorizing the making of gasworks for supplying towns with gas." The Act has several subdivisions or chapters, each headed with the general subject. The space between the 20th and 21st sections has the heading,-"And with respect to the provision for guarding against fouling water, or other nuisance from the gas, be it enacted as follows,"-That must be taken to be an intimation to all gas companies of the penalties to which they will be liable for fouling water. The 21st section then proceeds to enact, that, "if the undertakers shall at any time cause or suffer to be brought or to flow into any stream, reservoir, or aqueduct, pond, or place for water, or into any drain communicating therewith, any washing or other substance produced in making or supplying gas, or shall wilfully do any act connected with the making or supplying of gas, whereby the water in any such stream, reservoir, aqueduct, pond, or place for water shall be fouled, the undertakers shall forfeit for every such offence the sum of 2007.:" and by the 22d section such penalty is recoverable "by the person into whose water such washing or other substance shall be conveyed or shall flow, or whose water shall be fouled by any such act as aforesaid." It is clear to my mind that the legislature intended by this provision to take from the common informer the penalty imposed by any former Acts upon *587] *this particular offence, and to give it to the party damnified by the nuisance. And this construction is strengthened by the 23d section, which was referred to by my Brother Williams during the argument, and which superadds a further penalty of 201. per day for the continuance of the cause of complaint, "to be recovered in the like manner." Several following sections provide for the digging up roads, &c., for the purpose of examining the pipes, &c., and for the payment of the expenses of such examination. Seeing all this special legislation specifically applicable to gas companies and to the fouling of water by them, it seems to me that that special legislation was intended and is sufficiently declared to be the only provision they are to look to for the penalties to which they are amenable. The preamble of the general Act,-which recites that "it is expedient to comprise in one general Act sundry provisions usually contained in Acts of Parliament authorizing the construction of gasworks for supplying towns with gas, and that as well for avoiding the necessity of repeating such provisions in each of the several Acts relating to such undertakings, as for insuring greater uniformity in the provisions themselves,"-is strongly confirmatory of this view. The defendants, acting under an Act of Parliament which incorporates these general provisions, are liable to the penalties thereby imposed, and to those penalties alone, and in the manner there pointed out. Their liability to actions at the suit of a common informer may continue as to all injuries not provided for by the specific legislation. For these reasons, I am of

opinion that our judgment upon this demurrer ought to be for the defendants.

The rest of the Court concurring,

Judgment for the defendants.

*HAMMACK, Administratrix, v. WHITE. Jan. 14. [*588

The defendant bought a horse at Tattersal's, and the next day took him out to "try" him in Finsbury Circus, a much-frequented thoroughfare. From some unexplained cause, the horse became restive, and, notwithstanding the defendant's well-directed efforts to control him, ran upon the pavement and killed a man:-Held, that these facts disclosed no evidence of negligence which the Judge was warranted in submitting to the jury.

THIS was an action upon Lord Campbell's Act, 9 & 10 Vict. c. 93, by Mrs. Hammack, the widow and administratrix of William Hammack, to recover damages against the defendant for having by his negligence caused the death of the intestate.

The declaration alleged that the deceased, in his lifetime, was lawfully passing in and along a certain common and public highway, and that the defendant so carelessly, negligently, and improperly rode a certain vicious horse in the said highway, that, by and through the carelessness, negligence, and improper conduct of the defendant in that behalf, the said horse ran with great force and violence upon and against the deceased, and cast and threw him down and so injured him that the deceased, within twelve months next before the action, died.

The defendant pleaded not guilty: whereupon issue was joined. The cause was tried before the Recorder of London in the Lord Mayor's Court, when the following facts appeared in evidence:

On the 7th of May, 1861, the deceased was walking on the footpavement in Finsbury Circus, when he was knocked down and kicked by a horse on which the defendant was riding. He was picked up and carried to St. Bartholomew's Hospital, where he died on the 16th in consequence of the injuries he had sustained.

It appeared that the defendant had bought the horse the day before at Tattersal's, and had taken it out to try it, when the horse became unmanageable and swerved from the roadway on to the pavement, notwithstanding the defendant's efforts to restrain him. It did

not appear that the defendant had omitted to do anything he [*589 could have done to prevent the accident: but it was insisted on the part of the plaintiff, that the mere fact of the defendant's having ridden in such a place a horse with whose temper he was wholly unacquainted, was evidence of negligence. Some reliance was also placed upon the fact of there being certain police notices affixed at various parts of the circus, cautioning all persons not to exercise horses there.

The learned Recorder, being of opinion that there was nothing in the evidence to warrant a jury in finding that the defendant had been guilty of negligence, directed a nonsuit.

Patchett, in Michaelmas Term last, obtained a rule nisi for a new trial, on the ground of misdirection. He referred to Weaver v. Ward,