that the defendants had conducted themselves negligently in their execution of the work intrusted to them, and accordingly found a verdict for the plaintiff; which verdict the Court of King's Bench refused to disturb. Per Bayley, J. "The defendants were bound to conduct themselves in a skilful manner." And per Best, J. " Here, too, the action was brought against the parties who negligently executed, and not against the party giving the order, as in Sutton v. Clarke" (a). From this observation, it may be inferred, that, in the case alluded to, the surveyor would have been considered liable, although the trustees were held not to be responsible. Where, however, a remedy is given as against the trustees, then it should seem, that no action will be maintainable against their surveyor or agents, unless, indeed, in the case of a tort (b). Therefore it has been decided, that the surveyor of a turnpike road is not personally liable to answer for wages to labourers, for their work in repair of the road; but that the commissioners or their treasurer, are the proper party to be sued (c). But if the contract is entered into personally with such agent, and he voluntarily stakes his individual credit, it appears, according to the case of Meriel v. Wymondsold (d), that he will thereby render himself responsible. There the plaintiff had agreed with two of the defendants to pave their streets in Putney; and they on the behalf of the parish agreed to pay him for them, which agreement was put into writing, and remained in the ligence, and à fortiori if they are guilty of gross misconduct, they are personally answerable for the consequences; although the act ordered to be done was in itself lawful, and warranted by the powers vested in the trustees. Thus in the case of Hall v. Smith (a), we have seen that the surveyor and contractor, employed by certain paving commissioners, were held liable upon an action brought for an injury inflicted through their leaving unguarded, during the night, a trench, over which the plaintiff fell, and broke his leg, notwithstanding the commissioners themselves were acquitted. (a) See ante, p. 208. (b) See 6 Taunt. 35. (c) Pochin v. Pawley, 1 W. BI. 670. It So in the case of Jones v. Bird and others (b), the plaintiff brought his action against the defendants, who were employed under the commissioners of sewers. appeared that the sewer, which it was necessary to repair, passed close to five houses adjoining to that belonging to the plaintiff, and that a stack of chimneys belonging to one of those houses was built upon the arch of the sewer, In the execution of the work, it became necessary to rebuild this arch, and in order to support the chimneys in the mean time, a transum and two upright posts were placed under them in order to support them, but without success; the chimneys fell, and in consequence of their fall, the adjoining houses, including the plaintiff's house, fell also. There was no specific notice given to the owner of the house to which the chimneys belonged of their dangerous state, or that it would be necessary for him to take them down. But there was a general notice to the inhabitants to secure their houses while the sewer was repairing. The jury, at the trial, were of opinion, that the defendants had conducted themselves negligently in their execution of the work intrusted to them, and accordingly found a verdict for the plaintiff'; which verdict the Court of King's Bench refused to disturb. Per Bayley, J. "The defendants were bound to conduct themselves in a skilful manner." And per Best, J. "Here, too, the action was brought against the parties who negligently executed, and not against the party giving the order, as in Sutton v. Clarke" (a). From this observation, it may be inferred, that, in the case alluded to, the surveyor would have been considered liable, although the trustees were held not to be responsible. Where, however, a remedy is given as against the trustees, then it should seem, that no action will be maintainable against their surveyor or agents, unless, indeed, in the case of a tort (b). Therefore it has been decided, that the surveyor of a turnpike road is not personally liable to answer for wages to labourers, for their work in repair of the road; but that the commissioners or their treasurer, are the proper party to be sued (c). But if the contract is entered into personally with such agent, and he voluntarily stakes his individual credit, it appears, according to the case of Meriel v. Wymondsold (d), that he will thereby render himself responsible. There the plaintiff had agreed with two of the defendants to pave their streets in Putney; and they on the behalf of the parish agreed to pay him for them, which agreement was put into writing, and remained in the hands of the defendant Wymondsold. The work was done according to the agreement, and it came to £360; and for satisfaction the plaintiff preferred his bill in equity against them with whom he had agreed, and against others of the parish, who had agreed with the undertakers for the parish to pay their shares: And per Curiam, "The plaintiff must have relief against the undertakers, especially in this case, because the written agreement, which is his evidence, is in the hands of one of the defendants; and the undertakers must take their remedy against the rest of the parish." (a) See ante, p. 208. (b) See 6 Taunt. 35. (c) Pochin v. Pawley, 1 W. ВІ. 670. SECONDLY. As to the procuration of materials for making the repairs. Power to get materials, gratis, from waste and common land; and from inclosed land, upon making satisfaction. By Stat. 3 Geo. 4. c. 126. s. 97, It is enacted, That it shall be lawful for the surveyor or surveyors to the trustees of every turnpike road, and for all such persons as he or they shall appoint, to search for, dig, gather, take, and carry away any materials for making or repairing any turnpike road, out of any common river or brook (not being within fifty yards of any bridge, dam, weir, or jetty), or out of or from any waste or common in any parish, hamlet, or place, in which any part of such road may lie, or in any adjoining parish, hamlet, or place, and to haul and carry away such materials when got, over any common or waste lands, without paying any thing for such materials, and without being deemed a trespasser or trespassers; the said surveyor or surveyors, or other person or persons, filling up the pits or quarries, from such materials shall be taken, or railing or fencing off such pits or quarries, so that the same shall not be dangerous to any persons or cattle, and paying or tendering for the damage done by going through and over any inclosed lands or grounds for or with such materials, and such damages to be ascertained as hereinafter mentioned: And also that it shall be lawful for the said surveyor or surveyors, and such person or persons as he or they shall appoint, to search for, dig, get, gather, take, and carry away any such materials, in or out of the land of any person or persons where the same may be had or found, in any parish, hamlet, or place in which any part of such road shall lie or be situate, or in any adjoining parish, hamlet, or place (not being a garden, yard, park, paddock, planted walk, or avenue to any house, or any piece of ground planted and set apart as a nursery for trees), making or tendering such satisfaction for such materials, and for the damage done to the owners or occupiers of the lands where and from whence the same shall be dug, gathered, and carried away, or over which the same shall be carried, as the said trustees shall judge reasonable:-And also to land on and carry through or over any inclosed lands or grounds (not being a garden, yard, park, paddock, planted walk, or avenue to a house, or any piece of ground planted and set apart as a nursery for trees), or on, through, or over any open land or common, any stone or other materials for making or repairing such road, or for building or repairing any present or future toll-house or toll-houses on or by the sides thereof, from any river, stream, or canal, in any parish, hamlet, or place in which any such road lies, or in any adjoining parish, hamlet, or place, paying or tendering, for the damage done in landing on or going through or over any |