establishing that the work was nevertheless wrongful generally, or wrongful towards him personally as a private nuisance to his property.

In the argument the principal stress was laid upon the want of a by-law as sustaining the charge of wrongfulness, as if that omission necessarily placed the defendants in the position of wrong-doers if the plaintiff proved the work injurious in its consequences to his house or lands. I do not think such an inference follows as of course, but that it must depend upon circumstances; for I am satisfied that, irrespective of any special by-law, the defendants may justify many things in relation to the maintenance and repair of the streets that mere volunteers could not do-Lord Lonsdale v. Nelson et al. (3 D. & R. 556).

I think the question must be, not whether it might have been authorized or legalized by a by-law, but whether it is illegal, or can be justified without one; and in considering such a question I do not think the power to sanction and direct improvements of the kind, when they infringe upon private rights through by-laws legally made, confers by implication the power to make them without by-laws-Hopkins v. The Mayor of Swansea (4 M. & W. 633), Gosling v. Veley (7 Q. B. 451). The plaintiff might remonstrate against a by-law while in course of being passed, or he might appeal against it if illegal in its provisions: at all events, acting without it is not executing the powers imparted by the legislature in conformity with the forms and observances required. If then the acts complained of are justifiable irrespective of the 12 Vic. ch. 81, sec. 60, No. 1, the defence is open to the defendants under the fifth plea; if they are not, I do not think a justification can be sustained under that clause; for it only authorizes the making of by-laws for certain specified purposes, and does not confer the power to do the thing it so authorizes without them.

I am at present disposed to think it within the general and incidental powers of the defendants to maintain and repair and to improve the public streets of the town placed under their charge; and, in doing so, to raise or lower them, as may be found necessary, judicious, or convenient for the

public use, not exceeding what is reasonably requisite and proper, and doing no unnecessary injury to the property of others, but using due care and precaution to avoid injury to the same. But if the work cannot be justified on such grounds, then, in the absence of any by-law, I think the defendants would be responsible to the injured parties.

I am not prepared to lay down any general rule touching the line of separation in matters of this kind, between cases in which a by-law may or may not be necessary. In my present impressions, cases of either kind may arise, according to the circumstances. Whatever is cast upon the defendants as executive duties, under the statutes, in relation to the maintenance or repair of the roads, or whatever is fairly included in those terms, they may do without a by-law: when not so, and it is only within their discretion in the exercise of their legislative powers, it would be otherwise. In the present case it may form a question to be decided by a jury when the facts are ascertained.

It is stated that the defendants directed the work in question by a resolution of the municipal council, but not sealed: if so, it would, I suppose, constitute an informal or imperfect by-law; and there is force in the argument that the statute 12 Vic. ch. 81, sec. 198 requires by-laws to be authenticated by the seal of the corporation, to confirm the act and for the purpose of legal proof, without their being entirely void to all intents and purposes if not so sealed and signed, &c. I suppose, however, that the seal would be deemed essential to the validity of a by-law when the occasion necessarily requires a by-law to be made. The safe and prudent course is for the municipality to act through by-laws whenever practicable, and not to rely upon general or incidental powers under circumstances in which the power to proceed thereby is expressly given, and when the omission to do so may lead to actions of the present kind.

I will merely add that, from what was said and took place at Nisi Prius, I am much disposed to think the acts complained of will be found justifiable without a specific by-law made in due form, but not so clearly as to feel justified in upholding the nonsuit. I should desire to learn the facts before I express a distinct opinion on the subject.

MCLEAN, J.-I am still of opinion that the plaintiff cannot maintain this action, and that the nonsuit was right. When it was admitted, as it was upon the trial, that the street had been raised by the defendants in discharge of a public duty -a duty which by law they alone were authorized to per-. form-then, in my judgment the mode by which they had proceeded became wholly immaterial; nothing was done but what the law authorized and duty required the defendants to do, and whether that was done under the sanction of a by-law regulating statute labor, or by contract entered into with an individual sanctioned by a resolution of the council, the act was equally justifiable. The plaintiff appears to rest his right to recover on an alleged fact that though the street was raised under the sanction of the defendants acting in their corporate capacity in behalf of the public, yet as it was not done in pursuance of any by-law that it was therefore illegal. Now I do not admit the correctness of this conclusion, and I am unable to see that the only mode of proceeding to be adopted in such cases must necessarily be by by-law. I can imagine that where statute labor is to be applied to a particular piece of road, or where some provision is necessary to regulate the time and manner of doing statute labor, a by-law may be essential; but I can see nothing to prevent any town council from carrying out any improvement on any highway or street within its jurisdiction by contract with any individual who may agree to make it. It is quite competent for a council to get plans and estimates of any intended improvements including the raising or levelling of particular streets, and, when such are obtainable, to give out contracts for doing the work according to such plans and estimates. A by-law in such a case would be superfluous and unnecessary, and cannot therefore be considered essential in law. It is true that under the 61st section 12 Vic., ch. 81, the inhabitants of the town of Peterborough and the towns similarly situated are severally declared to be a body corporate, with the same corporate powers as the inhabitants of villages incorporated under that act, except in so far as such powers may be by that act increased, lessened, or modified: and when the corporate powers conferred on villages are referred to, we find that they

are authorized to make by-laws for the opening, constructing, making, levelling, pitching, raising, lowering, repairing, planting, improving, preserving and maintaining any new or existing highway, street, square, sidewalk or other communication within the jurisdiction of the corporation. Then, by the 59th section it is declared that the municipality of every village shall have all such powers, duties and liabilities within such village, as the municipality of any township shall have in respect of such township. It becomes necessary then to refer back to the 2nd section of the act, in which the corporate powers of townships are defined, and there we find among other things, that the township municipalities have the power of "making and entering into such contracts as may be necessary for the exercise of their corporate functions." Will it be said that a by-law is in all cases necessary before a contract can be entered into? I think it is not so; but that whenever the council decide upon a particular piece of work and the manner in which it is to be done, and the price to be paid for it, they may by a mere resolution direct a contract to be entered into under the seal of the corporation, and such contract will be binding and valid in law, quite as much as if the formality of passing a by-law under the corporate seal had been previously gone through. If then a formal bylaw is not in all cases necessary to enable a corporation to proceed with works under their control, I cannot see that the want of such a by-law can make such corporation liable for doing what they may do without it. It certainly does seem to me that it would be rather absurd to hold that an act lawful in itself shall be deemed unlawful because done without all the formalities which some might deem necessary but which common sense would pronounce to be superfluous.

The cases which were cited by the counsel for the plaintiff on the argument (21 Eng. Rep. 198, 6 Taun. 29, 7 Q. B. 960, 4 T. R. 794) do not seem to me to help him in any respect; they only shew that where there is a contract to do an unlawful act the employer is liable for any injury arising from the act. The act in this case was not unlawful, for it was a duty thrown by law on the defendants, which they were bound to discharge.

The case recently decided in this court as to the right of the Corporation of the city of Toronto to construct a sewer, by which another corporate body, the City Water Works Company was injured, seems to me to be decidedly in point in this case, and in fact to govern the decision; in that case the mode of doing the act was not questioned, but the right to do it; and in the case of Brown v. The Township Municipality of Sarnia, it was held that the defendants need not shew that they proceeded to do by by-law what the law authorized them to do, and several cases in our own courts establish that where parties have authority by law to do specific acts they cannot be held responsible for any injury arising from the performance of such acts. The plaintiff's declaration alleges the raising of the street to be wrongful on the part of the defendants, but being sanctioned by law it must be regarded as rightful.

On these grounds, therefore, I am of opinion that the rule nisi in this case must be discharged with costs.

RICHARDS, J.-I concur in the judgment of the learned Chief Justice that the nonsuit should be set aside, and a new trial had between the parties.

I am also very much disposed to go the length he does as to the necessity of a by-law to justify the acts referred to by him, even where the legislature has authorized the municipality to make by-laws for these purposes by 12 Vic. ch. 81 and other acts.

As, however, it is not absolutely necessary in this case that any decision on the point should be given, I refrain from expressing a decided opinion. In other respects I concur in the judgment of the Chief Justice.

Per Cur.-Rule absolute.

VOL. V.