held not to be liable. Harris v. Baker (a) was a similar (a) 4 M. & Sel. 27. (c) Page 312. VOL. XI. Ꭲ (d) 1 East, 555. EXCH. 1855. METCALFE v. HETHER INGTON. 1855. METCALFE v. HETHER- themselves under the Act, nor are they responsible, in respect of the management of the harbour, for accidents of the description of which they are charged. Quain contrà.-The first two counts charge the trustees with negligence, and if they are guilty of it they are liable in damages. The defence suggested is open under the plea of not guilty. The harbour-master is alleged to be the defendants' servant, and it is consistent with every allegation that they gave personal directions as to mooring the vessel. [Parke, B.-The declaration charges them "as trustees;" if they acted as is now suggested, they acted in their personal capacity and not as trustees, and therefore they ought not to have been charged as such. We think that the two first counts are clearly bad, and that the defendants' liability depends on the third count.] The third count is good. It contains an allegation that the defendants were guilty of negligence in allowing the accumulation of rubbish in the harbour. The question of negligence would be raised by the plea of the general issue. If the plaintiff should be unable to substantiate such allegations on the trial, he would fail. Persons acting in the capacity of these trustees are liable for injuries arising from acts done where they exceed their jurisdiction, and also in cases where, though acting within their jurisdiction, they are guilty of negligence. The fact that the trustees act without emolument does not affect their liability where they are guilty of negligence. In The Grocers' Company v. Donne (a), it was held, that 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. The decisions in Boulton v. Crowther (b) and Sutton v. Clarke (a), proceeded upon the ground that the defendants were acquitted of negligence. In the former of these cases, Abbott, C. J., in delivering his judgment, says, "The Act of Parliament, I think, authorised the trustees to do what they have done. If, in doing the act, they acted arbitrarily, carelessly, or oppressively, the law in my opinion has provided a remedy. But the fact of their having so acted is negatived by the finding of the jury." In Jones v. Bird (b), Best, J., said, "In Sutton v. Clarke the judgment proceeded on the ground that there was no pretence for imputing negligence to the defendants." Jones v. Bird is an authority that commissioners or trustees acting in a public capacity are responsible for injuries arising from negligence, though acting within their jurisdiction. And accordingly Littledale, J., in Boulton v. Crowther, said, "In Jones v. Bird the commissioners were held responsible for an act done by them in the discharge of their duty; but it was expressly found that they had acted carelessly and negligently." [Parke, B.-The objection is, that the declaration does not contain any allegation from which the duty to keep the harbour safe is to be inferred.] In Parnaby v. The Lancaster Canal Company (c) the declaration, which was in case, stated that by the Canal Act (32 Geo. 3, c. 101) the company was formed to make and maintain the canal, with power to take tolls; and all persons had free liberty to navigate the canal; and if any boat should be sunk in the canal, and the owner or person having care of it should not, without loss of time, weigh it up, it was by the statute to be lawful for the company to weigh it up and detain it till payment of expenses; that the company completed the canal and took tolls on it; that a boat sunk in the canal so that vessels passed with difficulty in the day, and at night were in danger of running foul of it; that (a) 6 Taunt. 29 (b) 5 B. & Ald. 837. (c) 11 Ad. & E. 223. 1855. METCALFE V. HETHER- 1855. METCALFE v. HETHER- although the company could and ought to have requested the owner, &c. to weigh it up, and in the meantime to have caused a light or signal to be placed to enable boats to avoid it, yet the company did not cause the owner, &c. to weigh it up, nor themselves weigh it up, nor place a light or signal, whereby the plaintiffs' boat navigating the canal ran foul of the smaller boat and was damaged: and it was held by the Court of Exchequer Chamber, affirming the judgment of the Court of Queen's Bench, that the declaration disclosed a sufficient duty and breach. [Parke, B.— The defendants in that case were associated together in the undertaking for their private benefit and gain. In order to render these defendants liable for a non-feasance, the declaration ought surely to shew that they had the requisite funds.] That question is either involved in that of negligence, and is therefore open to the defendants under the plea of not guilty, or they ought to plead that they had no funds, for that is a matter entirely within their own knowledge, and of which the plaintiffs are wholly ignorant. Upon this point, Sunderland Marine Insurance Company v. Kearney (a) is in the defendants' favour. [Parke, B. The defence there arose upon a proviso in the deed.] Executors are not liable as such except they have assets, and yet a declaration against them does not allege that they have assets. The principle upon which this question rests is to be found in the notes to Pomfret v. Ricroft (b). If, therefore, the defendants admit by the pleadings that they have been guilty of negligence, they are responsible for its consequences, although they may be intrusted with a discretion in the exercise of their office under their Act, and although they act gratuitously. The rule is well laid down 1 Smith's L. C. 195, n., that "the confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it: (a) 16 Q. B. 925. (b) 1 Wms. Saund. 322 c, n. 3. Brown v. Mallett (a) and White v. Crisp (b) are additional authorities on the subject. Cowling was re-heard in reply to the cases cited, and he also cited Chadwick v. Trower (c) and Reg. v. Norfolk Commissioners of Sewers (d). Cur. ad. vult. The judgment of the Court was now delivered by PARKE, B.-The question in this case is, whether the defendants, in their collective capacity of trustees, are liable on any of the counts upon general demurrer, the plea being bad. The two first are framed on the supposition that the defendants as trustees had the control, guidance, and superintendence, or care, government, and direction of all vessels in the harbour, and were responsible for the neglect of the harbour-master or person employed by them which results in any damage to those vessels. This is not a correct view of their duties. It is clear from the Act of Parliament, 3 & 4 Will. 4, c. cxiii, that no such duties are imposed on the trustees. They are a body named by the legislature in the first instance, afterwards in part by the lord of the manor of Ellenborough, in part elected from persons having a qualification by estate or the ownership of ships, and by persons having qualifications of a like nature. In these persons the legislature vests very large discretionary powers, considering, no doubt, that they will faithfully perform their duties, and requiring them to execute the powers and authorities reposed in them by virtue of the Act faithfully and irreproachably, according to the best of their judgment, and under the obligation of an oath. (a) 5 C. B. 599. (c) 6 Bing. N. C. 1. (d) 15 Q. B. 549. 1855. METCALFE บ. HETHER INGTON. |