defendants upon this demurrer (11 C. B. N. S. 579 (E. C. L. R. vol. 103), the plaintiff brought a writ of error, which was argued in the Exchequer Chamber, before Pollock, *C. B., Bramwell, B., Channell, B., Blackburn, J., and Pigott, B. [*570

Joyce, for the plaintiff in error.-By the 10 G. 4, c. lxxiii., certain commissioners are appointed to carry into effect the lighting and improving the town of Croydon: and by s. 27 of that act it is enacted that, "if the said commissioners, 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, &c., or any house, &c., 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 2001.," to be recovered by action, &c., and paid to the person or persons who shall inform or sue for the same; and that section also imposes a further penalty of 201. for each day the nuisance shall be continued,-such last-mentioned penalty to be paid "to the informer or to the person or persons who in the judgment of the justice or justices before whom the conviction. shall take place shall have sustained any annoyance, injury, or damage by any such act so done or committed." The defendants are a company incorporated by the 10 & 11 Vict. c. cxxiv. for supplying Croydon and its vicinity with gas. The 1st and [*571 4th sections of that act respectively incorporate therewith The Companies Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16), The Gasworks Clauses Act, 1847 (10 Vict. c. 15), and the Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18). The 21st section of the 10 Vict. c. 15 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 2001." And the 22d section enacts that "the said penalty of 2001. shall be recovered, with full costs of suit, in any of the superior 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." The question is, whether this is a substitution for the penalty imposed by the former act, or a cumulative penalty. The plaintiff submits that it

is cumulative. In Goldson v. Buck, 15 East 372, it was held that an act passed in the 14 G. 2 (c. 43), enabling T. S., the lord of the manor of F., his heirs and assigns, at their costs, to convey water in pipes from his estate there to Portsmouth, and through the streets, and for that purpose to break up the pavement, making good the same again, was not repealed by the 32 G. 3, c. 103 (passed above fifty years *afterwards), vesting the property and control of the pavement *572] in commissioners, without exception of the former right,—the

two acts not being inconsistent, but giving the several powers to be exercised for different purposes. So, here, it is submitted these two penalty clauses are not inconsistent, and may very well subsist together. The 29th section of the Gasworks Clauses Act enacts that "nothing in this or the special act contained shall prevent the undertakers from being liable to an indictment for nuisance, or to any other legal proceeding to which they may be liable in consequence of making or supplying gas." The two acts were passed with totally different objects: under the first act, any person may sue for the penalty; but, under the 10 Vict. c. 15, the action must be brought by the person whose water is fouled. [MELLOR, J.-The one act is confined to offences by the undertakers; the other extends to offences committed by any one.]

Sir George Honyman, contrà.-The judgment of the court below is correct. [POLLOCK, C. B.-The question is, whether we are to hold that the legislature meant to impose two penalties of 2001. each for the same offence, or merely by the later act to define the person by whom the penalty is to be recovered. The course of modern legisla ture has been to put down the qui tam.] The object of the Gasworks Clauses Act was, to provide one uniform code of regulations for all works of this kind. This appears from the preamble. The general heading which precedes s. 21 also clearly shows what was the intention of the legislature," And with respect to the provision for guarding against fouling water, or other nuisance from the gas, be it enacted as follows:" and then the 21st section proceeds to impose upon the undertakers precisely the same penalty for the same acts as were pro

hibited by the 10 G. 4, c. lxxiii., and the 22d section to make

*573] that penalty recoverable by action at the suit of the party

aggrieved, instead of, as under the former act, at the suit of a common informer: and the 23d section,-as if to make the intention of the legislature yet more clear,-enacts, that, "in addition to the said penalty of 2001. (and whether such penalty shall have been recovered or not), the undertakers shall forfeit the sum of 201. (to be recovered in 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 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." [MELLOR, J.-The daily penalty under the 10 G. 4, c. lxxiii. s. 27, is to go either to the informer or to the party grieved, at the option of the justices.] The declared object of the legislature being to insure "greater uniformity in the provi

sions" in acts of parliament for the construction of gasworks and the supplying of gas, is it reasonable to suppose that they intended that in this district there should be two penalties for the same offence, one recoverable by the informer and the other by the party aggrieved? [BLACKBURN, J.-The Gasworks Clauses Act does not take away the right to recover compensation in damages.] No. It is the same as if the legislature had said, that, if gas companies do the things mentioned, they shall be liable to the penalties in the 10 G. 4, c. lxxiii., s. 27. It may be that any other persons doing these acts would still be liable under the 10 G. 4, c. lxxiii.; but gas companies are only liable to be sued under the 10 Vict. c. *15, s. 22. If the argument on the other side be correct, the party aggrieved [*574 might get 401. a day. In The Great Central Gas Consumers Company v. Clarke, 11 C. B. N. S. 814 (E. C. L. R. vol. 103) (affirmed on error, 13 C. B. N. S. 838 (E. C. L. R. vol. 106), it was held that the general act for regulating the supply of gas to the metropolis (23 & 24 Vict. c. 125) repealed the provisions of all local gas acts as to the rate of charge. [BLACKBURN, J.-The words there showed an intention in the legislature so to do.] In the course of his judgment in the court below, Willes, J., says (11 C. B. N. S. 835),-"I do not assent to the proposition quoted from Dwarris on Statutes (p. 604), that, in order to effect a repeal of a former act, the later or repealing act must contain express words. If that be the proposition which that learned author means to lay down, it clearly is not accurate. It is enough if there be words which by necessary implication repeal it." In The King v. The Trustees of the Northleach and Whitney Roads, 5 B. & Ad. 978 (E. C. L. R. vol. 27), a local turnpike act (24 G. 2, c. 28) directed that the trustees should keep books, in which they should enter their accounts and also their orders and proceedings, and that all persons should have access to such entries: by a subsequent local act (1 & 2 G. 4, c. cix.), it was directed that the trustees should keep a book in which they should enter their accounts, which book should be open to the inspection of the trustees or of any creditor on the tolls. The General Turnpike Act, 5 G. 4, c. 126, s. 73, re-enacted the latter provision as to all turnpike-road accounts, and s. 72 directed that all trustees of turnpike roads should keep a book of their orders and proceedings, which should be open to the inspection of any of the trustees, and should be read as evidence in courts, as there directed. That act also provided that the enactments therein contained should extend to all other turnpike acts, except where by that act it was *otherwise ordered. It was held that these clauses of the [*575 general and of the second local act superseded the provisions. of the original act, and limited the power of inspection at first given to the whole public, confining it to trustees and creditors in the respective cases of orders and accounts. That case, it is submitted, is precisely in point.

Joyce, in reply.-The 10 G. 4, c. lxxiii., is unrepealed. It must be assumed that the legislature knew of the existence of that act: and yet they chose to give by the 10 & 11 Vict. c. cxxiv., powers to these defendants, subject to a summary remedy reserved to parties who might be injured by the mode of conducting their works. The 29th section of the 10 Vict. c. 15, is strong to show that the legislature did

not mean to exonerate the company in respect of any liability under the local act.

POLLOCK, C. B.-All the members of the court who are now present are unanimously of opinion that the judgment of the Court of Common Pleas is right, and must be affirmed. My Brother Blackburn, who has been obliged to go to Chambers, entertained some doubt; but he desired me to say that he is not disposed to dissent from the view taken by the rest of the court. It appears to me, that, in construing a penal statute of any kind, we are bound to take care that the party is brought strictly within it, and to give no effect to it beyond what it is clear that the legislature intended. If there be any fair and legitimate doubt, the subject is not to be burthened. Though, no doubt, in modern times, the old distinction between penal and other statutes has in this respect been discountenanced, still I take it to be a clear rule of construction at the present day, that, in the imposition *576] of a tax or a duty, and still more of a penalty, if there be any fair and reasonable doubt, we are so to construe the statute as to give the party sought to be charged the benefit of the doubt. More might have been urged here in favour of the plaintiff, if the original clause and the subsequent one had been framed in such a way as to show that the legislature intended to make the penalty a substitution for the common-law remedy. But the general statute imposes precisely the same penalty as that which was imposed by the local act, and does not say, as is sometimes said, that the new penalty shall be in addition to the penalty already imposed. It does not pretend to be either a substitution of the right of action, or a cumulative penalty. Upon these grounds, it seems to me that the evident intention of the legislature was, not to make the party liable to a double penalty, but merely to substitute the person aggrieved as the person to sue, for the common informer.

BRAMWELL, B.-I am of the same opinion. The defendants had no existence until the passing of the 10 & 11 Vict. c. cxxiv., which regulates and defines their rights and liabilities. That act may and ought to be read in connection with the Gasworks Clauses Act, 10 Vict. c. 15, which was passed for the purpose of consolidating in one act certain provisions usually contained in acts authorizing the making of gasworks for supplying towns with gas, and for insuring greater uniformity in the provisions themselves. The penalty clauses are introduced with this recital,-" And with respect to the provision for guarding against fouling water, or other nuisance from gas, be it enacted as follows." The 21st section then enacts, that, "if the undertakers,"—that is, the persons by the special act authorized to construct *577] the gasworks," 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." That is the consequence which is to ensue upon that act being done. The 22d section then goes on to provide how the penalty is to be recovered, and who shall

sue for it. It enacts that "the said penalty of 2007. shall be recovered, with full costs of suit, in any of the superior 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." But it is said, that besides this, another consequence is to attach to the commission of the prohibited act, because another act of parliament relating to the watching, lighting, and improving of the town of Croydon (10 G. 4, c. lxxiii.), in s. 27 enacts that any company or other person making or supplying gas within the limits of the act, who shall suffer any impure matter to flow into any stream, &c. (precisely the offence for which by the 10 Vict. c. 15 the undertakers are to pay the same penalty), should be liable to a penalty of 2001. So that, according to the plaintiff's contention, this company is to be liable to a double penalty. It seems to me, however, that that was not the meaning of the legislature; but that, in the absence of any clear enactment to the contrary, the defendants could only incur one penalty of 200%., to be recovered in the manner pointed out by the 10 Vict. c. 15, s. 22. I do not think it necessary to hold that the [*578, 10 G. 4, c. lxxiii., is abrogated. On the contrary, I do not think it is. Any person now setting up gasworks in the town of Croydon might be liable to the penalty under the local act. Why should one set of offenders be liable to one penalty and another set to another and different penalty for the same offence? Further, as was put by Williams, J., in the court below, the Gasworks Clauses Act imposes a further penalty of 20l. a day, to be recovered by the party injured, for each day that the nuisance shall be continued after notice: and the local act imposed a like daily penalty for the like offence, to be paid, at the option of the justices, either to the informer or to the person injured. Is it to be said that a cumulative penalty of 207. per day is given to the person injured? I think it is impossible to say that. It must be conceded that the 207. penalty under the local act is gone as to this company. That is clear almost to demonstration: and, if the 201. penalty is gone, the 2001. penalty must be gone also. With all respect for the doubt intimated by my Brother Blackburn, I think the judgment of the Court of Common Pleas was quite right, and should be affirmed.

CHANNELL, B.-I must own that I have felt disposed to participate in the doubt entertained by my Brother Blackburn: but, upon the whole, I agree that the judgment of the court below should be affirmed. The question is, whether the second plea is an answer to the declaration. It appeared to me at first to be necessary for the defendants to show that the Croydon Improvement Act, 10 G. 4, c. lxxiii., was repealed by the 10 Vict. c. 15, ss. 21, 22, as to this penalty. But the argument of their learned counsel has convinced [*579 *me that it is not necessary to go that length. It is unnecessary to consider whether an action at common law could be maintained against the defendants for an injury of this description, or whether the party injured is limited to the penalty provided by the Gasworks Clauses Act. The defendants here are sued in their corporate character under the special act 10 & 11 Vict. c. cxxiv.: and they