5 Q. B. 218) followed and approved. Cowley v. | of highways. Foreman v. Canterbury CorporaNewmarket Local Board, 62 L. J., Q. B. 65; tion. 40 L. J., Q. B. 138; L. R. 6 Q. B. 214; 24 [1892] A. C. 345; 1 R. 45; 67 L. T. 486; 56 L. T. 385; 19 W. R. 719. J. P. 805-H. L. (E.)

Where a statute empowers the corporation of a town to maintain and repair the highways of the town, and the corporation allows one of the highways to fall into disrepair, in consequence of which a member of the public is injured, such failure to repair being a nonfeasance and not a misfeasance, the injured party cannot maintain an action against the corporation, but the remedy (if any) is by indictment. Bathurst (Borough) v. Macpherson (4 App. Cas. 256) distinguished; Cowley v. Newmarket Local Board ([1892] A. C. 345) followed. Sydney Municipal Council v. Bourke, 64 L. J., P. C. 140; [1895] A. C. 433; 11 R. 482; 72 L. T. 605; 59 J. P. 659—P. C.

Trustees of a public road, who were empowered and required by act of parliament to place lamps along the road, if they should think necessary, and to make contracts for the cleansing of the road, and to take a night toll for the purpose of enabling them to light and watch the same, held not liable in an action for an injury suffered by an individual in crossing the road at night, by falling over a heap of scrapings left on the roadside after cleaning the road, without any lights. Harris v. Baker, 4 M. & S. 27 ; 16 R. R. 370.

Liability of Surveyor of Highways.]— By a resolution of the committee of management it was ordered that a part of a road should be C., who was the owner of certain cottages in a raised for about 150 yards, and that the surveyor public highway, received a notice from the of the highway appointed by the vestry should defendants under the Public Health Act, 1875, employ men to do it. The surveyor contracted requiring him to connect the drains of his cot- with G. to do the work at so much per yard, the tages with the main sewer, and in compliance vestry finding the materials. G. proceeded to do therewith he dug a trench in the road and made the work, employing his own men. During the the connection to the satisfaction of the defen- progress of the work one-half of the width of the dants' surveyor, and he then filled up the trench. road was raised first, and the other half left The soil afterwards subsided, and the subsidence temporarily about a foot lower. No fence or was the cause of an accident to the plaintiff light was put up to warn persons using the road while driving in a pony cart. The defendants at night, and the plaintiff driving with a horse were the sewer authority and the highway and dogcart was upset and injured. The surauthority of the district. In an action for veyor had not personally interfered in doing the damages for personal injuries:-Held, that the work, or in directing the road to be left as it defendants were not liable as the sewer authority, was :-Held, that he was liable for the injury to on the ground that the notice did not constitute the plaintiff by reason of 5 & 6 Will. 4, c. 50, C. their agent; nor as the highway authority, on s. 56. Taylor v. Greenhalgh, 24 W. R. 311— the ground that no action would lie against a C. A. Reversing, 43 L. J., Q. B. 168; L. R. 9 local board for personal injuries arising from the Q. B. 487; 31 L. T. 184; 23 W. R. 4. non-repair of a highway. Steel v. Dartford Local Board, 60 L. J., Q. B. 256-C. A.

By a local improvement act, incorporating the Towns Clauses Act, 10 & 11 Vict. c. 34, commissioners for carrying the act into execution were incorporated, and were empowered to levy rates to a limited amount, and to be applied to specified purposes. By 10 & 11 Vict. c. 34, s. 47, the management of streets is vested in the commissioners; by s. 48 they are made surveyors of highways; and by s. 49 they are to be guilty of a misdemeanour for neglecting to repair any public highway within the limits of the special act, and liable to be indicted in the same manner as the inhabitants of a parish :-Held, that the commissioners were liable to an action for an injury to a person caused by a footway within the limits of the local act being out of repair; and that it was not necessary to aver in the declaration that they had funds applicable to the repair of the footway. Hartnall v. Ryde Commissioners, 4 B. & S. 361; 33 L. J., Q. B. 39; 10 Jur. (N.S.) 257; 8 L. T. 574; 11 W. R. 963.

Obstruction on Highway.]—A heap of stones was left by the side of a road without light, and the plaintiff on a dark night drove his cart against it, and was upset and injured. The road was in the district of which the corporation was the local board of health, and the heap was left there by the negligence of persons employed by the corporation to repair the roads :-Held, that the corporation was liable, as the local board, to an action for the negligence of their servants; and was not exempt from liability by reason of 11 & 12 Vict. c. 63, s. 117, which imposes on them the same duties and liabilities as a surveyor

No action lies against a surveyor of highways, appointed under 5 & 6 Will. 4, c. 50, for damage resulting from an accident caused by his neglect to repair the highway. Young v. Davis, 2 H. & C. 197; 10 Jur. (N.S.) 79; 9 L. T. 145 ; 11 W. R. 735-Ex. Ch.

Negligence is necessary to Constitute Liability.]-An action will lie against a local board of health of a corporate district, under the 11 & 12 Vict. c. 63, as a body, for negligently carrying out works within their powers so as to cause injury to any person, e.g. for so negligently and improperly constructing a sewer as to cause a nuisance by its discharge. Southampton & Itchen Roads Co. v. Southampton Local Board, 28 L. J., Q. B. 41; 6 W. R. 223.

Commissioners acting under statutable powers are liable for injuries arising from the execution of works which they order, and which are defective in proper precautions against danger. Ruck v. Williams, 3 H. & N. 308; 27 L. J., Ex. 357; 6 W. R. 622.

Therefore, where a local board of health ordered new sewers to be constructed under a contract and plans which did not provide for a penstock or a flap, necessary to prevent premises from being flooded, and the consequence was that the premises were flooded with sewage :— Held, that the commissioners were liable to be sued for negligence, and that they were properly sued in the name of their clerk. Ib.

In order to render commissioners, acting in the bonâ fide performance of a public duty, liable to an action for an injury to an individual resulting from an act so done by them, it must appear that they have been guilty of negligence, or want of skill in the conduct of it. Grocers' Co. v.

Donne, 3 Scott, 356; 3 Bing. (N.C.) 34; 2 Hodges, 120; 5 L. J., C. P. 307.

Where a work of a public character has been constructed under the authority of an act of parliament, a right of action for an injury not occasioned wilfully, nor by any act necessarily causing it, but arising from the user of the work, must be founded on negligence, and negligence is of the essence of the action. Whitehouse v. Birmingham Canal Co., 27 L. J., Ex. 25.

By Lessees Liability of Lessors to give Notice.] An act enabling commissioners to grant a lease of a canal contained a clause as follows:-In case the lessees during the term should permit the navigation to be out of repair, the commissioners are authorised and required to give notice thereof to such lessees, and in such notice to specify the particular repairs which ought to be done, and the commissioners may require that such repairs should be comWhen a specified duty is imposed by statute menced, proceeded with, and finished within upon a public body, it is, in the absence of reasonable periods, to be named by them, and in express enactment, to be assumed that the legis-case the lessees shall neglect to commence such lature intended to exempt the public body from repairs, it shall be lawful for the commissioners, liability to make compensation for alleged and they are thereby authorised, to take possession omissions to fulfil that duty, unless negligence of the tolls and to cause such repairs to be done can be proved to exist. Hammond v. St. Pancras under their own direction, and to pay the necessary Vestry, 43 L. J., C. P. 157; L. R. 9 C. P. 316; expenses of making such repairs out of the tolls. 30 L. T. 296; 22 W. R. 826. A lease having been granted in pursuance of the act, during its continuance one of the locks of the canal became out of repair, but the commissioners, though they knew of the want of repair, gave no notice of it to the lessee, though a sufficient time had elapsed for giving such notice. A barge entered the canal while the lock was so out of repair, but was prevented from getting out again by the falling in of the lock :Held, that, assuming a duty in the commissioners to give notice to the lessee to repair, they were not liable in an action by the owner of the barge for neglecting to give such notice, inasmuch as the detention of the barge was not a damage naturally flowing from their neglect. Walker v. Goe, 4 H. & N. 350; 28 L. J., Ex. 184; 5 Jur. (N.S.) 737; 7 W. R. 289-Ex. Ch.

The Metropolis Management Act, 1855, s. 72, imposes upon vestries the duty of keeping the sewers in their respective parishes properly cleared, cleansed and emptied. An occupier of a messuage in one of these parishes received injury from the overflow of a sewer; the overflow happened without any default on the part of the vestry:-Held, that the occupier could not maintain an action against the vestry for the injury which he had sustained. Ib.

The trustees of a turnpike road converted an open ditch, which used to carry off the water from the road, into a covered drain, placing catchpits with gratings thereon to enable the water to enter the drain. Owing to the insufficiency of such gratings and catchpits, the water, in very wet seasons, instead of running down the ditch as it formerly did before the Water Company-Control by Commissioners.] alterations by the trustees, overflowed the road-By a local act, a waterworks company was and made its way into the adjoining land and bound at the request of town improvement cominjured a colliery:-Held, that the trustees were missioners, to fix fire-plugs into their mains, and liable for such injury, if they were guilty of to repair and keep them in proper order, at the negligence in respect of such gratings and catch-cost of the commissioners, in whom the property pits. Whitehouse v. Fellowes, 10 C. B. (N.S.) 765; 30 L. J., C. P. 305; 4 L. T. 177; 9 W. R. 557.

in the plugs was vested by virtue of their act. In consequence of the cap of one of the fireplugs being broken. a horse placed his foot in the plughole, and was lamed-Held, that the company was, and the commissioners were not, liable for the injury. Bayley v. Wolverhampton Waterworks Co., 6 H. & N. 241; 30 L. J., Êx. 57.

Commissioners-Irregular Meeting-Liability under Contract.]—By a local act commissioners were appointed for improving a navigation, all their powers to be executed by a majority present at a meeting of not fewer than three; they were For what Amount Liable.]-By a drainage act not to be personally liable on contracts made, or the commissioners were to construct a cut, with for damages incurred in relation to anything proper walls, gates and sluices, to keep out the done in pursuance of the act, but might be sued waters of a tidal river, and also a culvert under in the name of their clerk. The commissioners, the cut to carry off the drainage from the lands at a meeting duly held, resolved to accept a on the east to the west of the cut, and to keep the tender for executing works in pursuance of the same at all times open. In consequence of the act; their clerk thereupon drew up a contract negligent construction of the gates and sluices, according to the tender, and it was afterwards the waters of the river flowed into the cut, and signed by the contractor. It purported to be bursting its western bank, flooded the adjoining made by A., B. and C., being three of the com- lands. The plaintiff and other owners of lands missioners appointed for putting the act in on the east side of the cut closed the lower end execution, and recited the previous resolution; of the culvert, which prevented the waters overbut it did not appear (unless as before men- flowing their lands to any considerable extent; tioned) that the contract was executed or but the occupiers of land on the west side, sanctioned by the majority of a regular meeting: believing that the stoppage of the culvert would -Held, that the contract made in consequence be injurious to their lands, reopened it, and so of the resolution was a contract entered into by let the waters through on to the plaintiff's land the commissioners in execution of their office; to a much greater extent :-Held, that the comand that they were liable, and might be sued in the name of their clerk, for damage negligently done by the contractor to third persons in execution of such contract. Allen v. Hayward, 7 Q. B. 960; 15 L. J., Q. B. 99; 4 Railw. Cas. 104; 10 Jur. 92.

VOL. X.

missioners were responsible for the entire damage thus caused to the land. Collins v. Middle Level Commissioners, 38 L. J., C. P. 236 ; L. R. 4 C. P. 279; 20 L. T. 442; 17 W. R. 929.

Default of Servants or Agents.]-Trustees 4

appointel by statute for public purposes, with | bridge was unfinished, and in the hands of the power to levy tolls, but not deriving any personal contractor, from some defect in the machinery it benefit, are liable in their corporate capacity for could not be opened, and the plaintiff's' vessel damage sustained by reason of the defaults of their servants or agents to the same extent as absolute owners levying tolls for their own individual profit, although there is no improper conduct on the part of such trustees. Mersey Docks v. Gibns. 11 H. L. Cas. 486; 35 L. J., Ex. 225; L. R. 1 H. L. 93; 12 Jur. (N.S) 571; 14 L. T. 677; 14 W. R. 872.

was thereby prevented from navigating the river:-Held, that the company was liable. Hole v. Sittingbourne and Sheerness Ry., 6 H. & N. 488; 30 L. J., Ex. 81; 3 L. T. 750; 9 W. R. 274.

A local authority who employ a contractor to do work which they are empowered by statute to execute, and which is likely to prove In an action against the commissioners of dangerous to others, are bound to see that the Kingstown Harbour, appointed by the lord work is properly carried out, and are not relieved lieutenant under 56 Geo. 3, c. 62. the plaint-- from liability for injuries caused by the negligent after stating that it was their duty, as such com- execution of the work by the fact of having missioners, to apply dues, &c., received by them employed a contractor. Hardaker v. Idle Disfrom vessels entering the harbour, in its main-trict Council, 65 L. J., Q. B. 363; [1896] 1 tenance and regulation, so as to be in a fit state Q. B. 335; 74 L. T. 69; 44 W. R. 323; 60 J. P. for vessels to lie in-alleged that they neglected 196-C. A. their duty, and omitted to take due and reasonable care in maintaining and regulating the harbour, insomuch that a vessel of the plaintiff. while lying in the harbour, struck against stones remaining there, through the negligence of the commissioners; and in a second count, alleged that they, knowing that the harbour was, by accumulation of stones, in an unfit state to be used by vessels, allowed it, for want of necessary and reasonable maintenance and regulation, to remain in that condition while it was, with their knowledge and permission, lain in by vessels; insomuch that the vessel in question, while lying in harbour, struck against stones. It was proved that the vessel struck against two stones lying at the bottom of the harbour, close to one of the piers; that one of the stones was chiselled, and appeared to have been used in the construction of the pier; and that there was a gap in the face of the pier immediately above the stones:Held, that the principle of liability of negligence, established in Mersey Docks v. Gibbs (L. R. 1 H. L. 93) was applicable, and that the plaint disclosed a good cause of action. Campbell v. Hornsby, Ir. R. 7 C. L. 540-Ex. Ch.

Where a statutory obligation is imposed on a person, he is liable for any injury that arises to others in consequence of its having been neglgently performed, and this, whether it was performed by himself, or by a contractor, employed by him. Gray v. Pullen, 5 B. & S. 970; 34 L. J. Q. B. 265; 11 L. T. 569; 13 W. R. 257-Ex. Ch.

A. was employed, under 18 & 19 Vict. c. 120. ss. 77, 110, 111, to make a drain from his premises to a sewer, by cutting a trench across a highway, and filling it up after the drain should be completed. For this purpose he employed a contractor, by whose negligence it was filled up improperly, in consequence of which damage ensued to B. :-Held, that A. was responsible for it. Ib.

A railway company was empowered by act of parliament to construct an opening bridge over a navigable river, and was forbidden to detain any vessel navigating the river for a longer space of time than would be sufficient to allow trains ready to traverse the bridge to pass, and for opening the bridge; and in case the company. or any one acting under the company, should detain any such vessel for more than ten minutes, the company was to be liable to a penalty, in addition to any claim for damages sustained by reason of such detention. The company employed a contractor to build the bridge in conformity with the requirements of the act. While the

By an act, commissioners were appointed for improving a navigation: their powers were to be executed by the majority present at a meeting of not fewer than three. They were not to be personally liable on contracts made, or for damages incurred, in relation to anything done in pursuance of the act, but might be sued in the name of their clerk. The commissioners, at a meeting held, resolved to accept a tender for executing works in pursuance of the act. Their clerk thereupon drew up a contract according to the tender, and it was afterwards signed by the contractor :Held, that the contract made in consequence of the resolution was a contract entered into by the commissioners in execution of their office, and that they were liable and might be sued in the name of their clerk for damage negligently done by the contractor to third persons in execution of such contract. Allen v. Hayward, 4 Railw. Cas. 104; 7 Q. B. 960; 15 L. J., Q. B. 99; 10 Jur. 92.

Trustees of a turnpike road are not liable for any injury occasioned by the negligence of contractors, or others employed under them in the performance of public works on the road, unless they personally interfere in the management of the works. Humphreys v. Mears, 1 M. & Ry. 187; 6 L. J. (0.8.) K. B. 89.

Trustees appointed under a public road act are not responsible for any injury occasioned by the negligence of the men employed in making or repairing the road. Duncan v. Findlater, & Cl. & F. 894.

The funds raised by such an act cannot be charged with compensation for such an injury; the persons employed on the road not being in the situation of servants to the trustees. Ib.

Persons intrusted with the performance of a public duty, discharging it gratuitously, and being personally guilty of no negligence or default, are not responsible for an injury sustained by an individual through the negligence of workmen employed under them. Holliday v. St. Leonard's, Shoreditch, 11 C. B. (N.S.) 192; 30 L. J., C. P. 361; 8 Jur. (N.s.) 79; 4 L. T. 406; 9 W. R. 694.

The Harbours Act, 1878, by s. 49, empowers the harbour board to appoint a harbour-master, pilots, and other officers to assist in the execution of the act. Sect. 76 empowers the board to appoint or license pilots to act within the districts attached to the harbour. The appellants employed a licensed pilot, who was also deputyharbour-master, to navigate their ship, which was sunk through want of due care in navigating :-Held, first, that the sole duty of the

board as constituted by the statute in respect of pilots was to license pilots; secondly, that the board had no power to enter into pilotage contracts, and was not responsible for the default of their officer in respect of pilotage. Shaw, Sarill & Co. v. Timaru Harbour Board, 59 L. J., P. C.,77; 15 App. Cas. 429; 62 L. T. 913 -P. C.

Distinction between Private Companies.] The principle which imposes liabilities upon a private company, as arising in consideration of the statutable powers granted to them, has no application in the case of commissioners appointed under a public act of parliament, to do, on behalf of the executive government, certain things for the benefit of the public. Reg. V. Woods and Forests Commissioners, 19 L. J., Q. B. 497; 15 Jur. 35.

F. BROKERS-See PRINCIPAL AND AGENT.
G. CARRIERS-Se3 CARRIERS.
H. INNKEEPERS-See INNKEEPER.
I. MASTER AND SERVANT-See MASTER

AND SERVANT.

J. SOLICITORS-See SOLICITOR.

K. TRUSTEES-See TRUST AND TRUSTEE.

L. IN OTHER CASES.

Trespass Injury caused by Dog-Liability of Owner or Person in charge of.]-The plaintiff, a labourer, was digging a hole in the garden of a house adjoining that of the defendant, T. There was a small wall, only three feet high, between these gardens. This wall belonged to the defendant T. The plaintiff was engaged in doing some work at the bottom of the hole. Three dogs belonging to the defendant T. had been taken out for a walk by another defendant, S.. and as he was returning, the dogs ran through | a gate into a garden adjoining the one where the plaintiff was at work. As the dogs were running about in playfulness, one of them, a large Newfoundland, jumped over the wall, and jumped or fell into the hole where the plaintiff was working at the time in a stooping posture. The dog fell on the nape of the plaintiff's neck, causing injuries through which he was confined to bed for three weeks, and he was unable to work for some time after. In an action for these injuries

against the defendant T. as the owner of the dog, and against the defendant S. as having the dogs in charge-Held, that inasmuch as the dogs were not shown to be mischievous to the knowledge of the owner, the plaintiff had no cause of action against either of the defendants either as for a trespass or as for any breach of duty. Sanders v. Teape, 51 L. T. 263; 48 J. P.

757.

know the law relating to the practice of obtaining patents, and therefore if he, in ignorance of a legal decision, delays taking the requisite steps, it is evidence of negligence for which he is liable to his employer. Lee v. Walker, 41 L. J., C. P. 91; L. R. 7 C. P. 121; 26 L. T. 70.

Valuer -Negligence and Misrepresentation.] -An intending mortgagor, at the request of the solicitors of an intending mortgagee, applied to a firm of valuers for a valuation of the property proposed to be mortgaged. A valuation at the sum of 3,000l. was sent by the valuers direct to the mortgagee's solicitors, and the mortgage was subsequently carried out. Default having been made in payment of the mortgagor, and a loss having resuited to the mortgagee, he commenced an action against the valuers for damages for the loss sustained through their negligence, misrepresentation, and breach of duty. The court being satisfied on the evidence that the defendants knew at the time the valuation was made that it was for the purpose of an advance, and that the valuation as made was in fact no valuation at all:-Held, that, under the circumstances, the defendants were liable on two grounds: (1), that they (independently of contract) owed a duty to the plaintiff which they had failed to discharge; (2), that they had made reckless statements on which the plaintiff had acted. George v. Skivington (L. R. 5 Ex. 1), and Heaven v. Pender (11 Q. B. D. 503), followed. Peck v. Derry (37 Ch. D. 541) discussed. Cann v. Will. son, 57 L. J., Ch. 1034; 39 Ch. D. 39; 59 L. T. 723; 37 W. R. 23.

A firm of valuers were employed to value certain property with a view to its being offered as a mortgage security. The valuers were suggested by a firm of solicitors, who were to find a mortgagee, it being understood, both by the valuers and the solicitors, that the valuation was to be made on behalf of the intended mortgagee. The plaintiff, who was a client of the solicitors, becaine the mortgagee, on the faith of the valuation being made by the valuers. The valuation was not conducted with due skill and care, and the security turned out greatly insufficient :Held, that the true inference to be drawn from the evidence, apart from an admission contained in the pleadings, was that the valuers were actually employed by the plaintiff; and that, as they had been negligent in the performance of the work undertaken, they were liable to the plaintiff for the damage caused by such negligence. Scholes v. Brook, 64 L. T. 674—C. A.

Surveyor-Liability for Misstatements in Certificate without Fraud.]-Mortgagees advanced money to a builder upon the faith of certain certificates given by a surveyor. The certificates contained untrue statements, the result of the negligence of the surveyor, but there was no fraud on his part, and no contractual relation between him and the mortProtection of Trade Society.]-Persons form-gagees :-Held, that the surveyor owed no duty ing themselves into a society for the protection to them to exercise care in giving the certificates, of trade, and issuing prospectuses, in which they and that he was not liable to them in an action represented that they instituted inquiries for for negligence. Cann v. Willson (39 Ch. D. 39) subscribers with reference to the respectability of proposed customers, are liable to subscribers for the damages caused by their neglect to take due and reasonable care to make such inquiries. Woods v. Woods, 3 F. & F. 244.

overruled; Heaven v. Pender (11 Q. B. D. 593) distinguished; Derry v. Peek (14 App. Cas. 337) followed. Le Lievre v. Gould, 62 L. J., Q. B. 353; 1893] 1 Q. B. 491; 4 R. 274; 68 L. T. 626; 41 W. R. 468; 57 J. P. 484-C. A.

A declaration, that the plaintiff, being rector, Patent Agent.]-A patent agent is expected to agreed with the executrix of the late incumbent

Who entitled to Sue-Child en ventre sa mère.] Wharfinger-Liability-Obstruction in Bed-A child en ventre sa mère is entitled to sue under

of River.]-The appellants were the proprietors of a wharf, but according to the finding of the house of lords, were neither owners nor lessees of the foreshore upon which their wharf abutted. Their foreman invited the respondents, owners