cially in a matter over which he had jurisdiction. [The Court called upon

Archibald to support his rule.-The petition has reference [*186 only to the debts mentioned in the insolvent's schedule: the protection, consequently, must also be limited to those debts: the Commissioner has no jurisdiction to grant a protection against process for debts subsequently contracted. The words "all process" must have a reasonable construction; and can only apply to process against which the petitioner asks for protection. [ERLE, C. J.-The legisla ture may very well have intended to give the interim order a more extensive operation than the final order, for the purpose of leaving the petitioner free to assist in the realization of his assets. By the 1st section of the 5 & 6 Vict. c. 116, the interim order is to be a protection from all process whatever. The final order under s. 4 is a protection only against the debts mentioned in the schedule.] In Beavan v. Walker, 12 C. B. 480 (E. C. L. R. vol. 74), where it was held that a final order under these statutes is no protection against an execution on a judgment in an action for tort signed after, upon a verdict obtained before, the making of such final order. Jervis, C. J., there says: "The question turns upon the construction of two statutes,-the 5 & 6 Vict. c. 116, and the 7 & 8 Vict. c. 96. With regard to the former of these statutes, the words seem to me to show plainly that it was intended to apply to debts, and to debts only. Indeed, the only argument urged by Mr. Hawkins upon that statute is founded upon the 4th section, which says that the order shall be called a final order, and shall be for the protection of the person of the petitioner from all process, and for the vesting of his estate and effects in the official assignee. It is manifest that that section was not meant to have so extensive a meaning as that suggested; but that it was intended that the final order should protect the party from all process which shall have reference to the subject-matters which could under the [*187 statute come before the Commissioner for adjudication. The 7 & 8 Vict. c. 96, so far as regards the jurisdiction, seems to me to come to the same result." The only debts which can be inquired into are those inserted in the schedule: and to these only would the final order be a bar under s. 10. [KEATING, J.-Could the Commissioner amend the schedule by inserting this debt?] He could not. The 22d section of the 7 & 8 Vict. c. 96 enacts "that the final order to be made under the provisions of the said Act (5 & 6 Vict. 116) as amended by this Act, shall protect the person of the petitioner from being taken or detained under any process whatever in the cases hereinafter mentioned, that is to say, from all process in respect of the several debts and sums of money due or claimed to be due at the time of filing the petition from such petitioner to the several persons named in his schedule as creditors, or as claiming to be creditors for the same respectively, or for which such persons shall have given credit to such petitioner before the time of filing such petition, and which were not then payable, or in respect of the claims of any other persons not known to such petitioner at the time of making the final order, who may be endorsees or holders of any negotiable securities set forth in such schedule." The whole of the legislation has reference to debts contracted before the time of filing the petition, and to debts men

*

tioned in the schedule. [WILLIAMS, J.-The section just referred to applies to the final order.] It may be that the execution-debtor might have been entitled to be discharged on application to a Judge,-see Rideal v. Fort, 11 Exch. 847,+-but still it was the duty of the sheriff to execute the writ: it was not for him to determine the nature and extent of the protection afforded by the order. If it had been the intention of the legislature to give the insolvent a more *188] extensive protection under the interim order than that given by the final order, one would have expected to find the language of the two sections different. The meaning of the two statutes is only to be judged of by the whole scope and object of them. [BYLES, J.— Why is it that no mention is made of the interim order in the 7 & 8 Vict. c. 96?] That statute contemplates only persons in actual custody. [BYLES, J.-Cresswell, J., in giving judgment in Phillips v. Pickford, 9 C. B. 459, 476 (E. C. L. R. vol. 67), 1 L. N. P. 136, points out the inconsistency of the 4th section of the 5 & 6 Vict. c. 116 with the 22d section of the 7 & 8 Vict. c. 96.] Then, the plea of not guilty puts in issue only the act alleged to have been wrongfully done, and not the wrongfulness of the act. [WILLIAMS, J.--The sheriff did not wrongfully discharge Knights, if the facts constituted a defence.] All the authorities, from Francum v. The Earl of Falmouth, 2 Ad. & E. 452 (E. C. L. R. vol. 29), 4 N. & M. 330 (E. C. L. R. vol. 30), down to Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 83), show that the wrongfulness is not put in issue by not guilty. [BYLES, J.-I should ask you what the plea ought to be, and amend the record accordingly. It is quite unnecessary to discuss this point.] Cur. adv. vult.

ERLE, C. J., now delivered the judgment of the Court:(a)This was an action against the sheriff for the wrongful discharge of a prisoner. It appeared that the sheriff had discharged the former defendant on the production of an interim protection order given under the 5 & 6 Vict. c. 116, s. 1; and it also appeared that the debt for which the plaintiff had recovered judgment did not exist *189] till after the petition of that defendant had been filed: and,

under these circumstances, the question has been, whether the production of such an order to the sheriff made the discharge lawful.

The statute enacts, that, after filing the petition, "it shall be lawful for the Court to give a protection to the petitioner against all process whatsoever either against his person or his property of every description; which protection shall continue in force and all process be stayed" until the party appears for examination,-his estate being thereupon vested in the assignee.

The words "a protection against all process whatsoever against his person" clearly comprise a protection against the capias here in question: and there may be reasons for giving an interim entire protection, to enable the debtor to assist in collecting his assets. The clause directing the protection to continue in force, and the process to be stayed until the appearance, also expresses clearly an absolute protection, and directs that the process shall be stayed, that is, shall not be executed. The words of the order produced in evidence expressed an absolute protection in the words of the statute: and it would be (a) The case was argued before Erle, C. J., Williams, J., Byles, J., and Keating, J.

(11

11

inconvenient to require the sheriff to understand that words expressing an absolute protection meant only a qualified protection.

The plaintiff contended that the interim order for protection ought to be confined to the debts specified in the schedule, upon the same. ground as had led to a limited construction of the absolute words in the final order for protection given under s. 4 of the same statute: and he relied on Beavan v. Walker, 12 C. B. 480 (E. C. L. R. vol. 74), where the sheriff had arrested a defendant who had a final order for protection, in an action of tort, where the verdict was before the petition and the judgment after: and the Court held that the defendant was not entitled to be discharged, not only because it *was an [*190 action of tort, and the plaintiff who has got a verdict is not a creditor for the sum given by the verdict before judgment, but also because the final order only protected from all process which could have reference to the subject-matters which could come before the Commissioner for adjudication under s. 4; under which section protection is to be given after adjudication. The reason here lastly assigned for limiting the final order to the matters to be examined into has no application to the interim order, which is given absolutely without reference to any examination.

This distinction between the final order and interim order is confirmed by subsequent legislation. By the 7 & 8 Vict. c. 96, s. 22, it is enacted that the final order made under the 5 & 6 Vict. c. 116, amended by this Act, shall protect the person of the petitioner in effect from the debts in the schedule, according to the principle expressed in Beavan v. Walker. While the legislature thus qualified the absolute words of the final order, it not only left the absolute words of the interim order without qualification, but by s. 6 again enacted that the interim protection should be absolute, for, it extends the power of petitioning to prisoners in custody, and enacts that every such petitioner to whom an interim order for protection shall have been given shall not only be protected from process as provided by the recited Act, but also from being detained in prison on any judgment, &c.

It is further worthy of notice that the legislature at the same time, by 7 & 8 Vict. c. 70, s. 7, considers the effect of the interim protection; and, in respect of interim orders under that Act, gave the Commissioner power to give a temporary protection from arrest within limits and upon conditions. It seems clear, therefore, that the legis lature intended to leave an absolute protection under the interim order now in question.

*This construction was judicially confirmed in Thomas v. [*191 Hudson, 14 M. & W. 353, 372,† where the Court say, "The policy of the legislature in the first statute appears to have been to relieve the petitioner in the first instance from all apprehension of arrest immediately on presenting his petition, and so giving up all his property, though, after examination, this protection might be taken away."

The case of Rideal v. Fort, 11 Exch. 847,t was cited to show that the sheriff was found to arrest and leave the party to apply to a Judge for his discharge. But the case does not decide that this was the duty of the sheriff. The action was trover against the sheriff for levying under a fieri facias goods of a petitioner which were excepted out of the C. B. N. S., VOL. XI.-9

statutes; and it was held that the sheriff was not liable, but that the party might obtain his goods by applying to a Judge. The case has no application to the duty of a sheriff in respect of arrest.

For these reasons, we think that the interim order was a protection to the former defendant, and rendered the discharge by the present defendant lawful.

If there had been a doubt upon the construction of the statutes, the principle of the decision in Thomas v. Hudson, suprà, protecting the gaoler in obeying the plain words of the order for protection, would apply to a sheriff obeying the plain words of the order produced to him in this case.

We think the sheriff was not guilty of a wrongful discharge, and that the plea is sufficient. We did not hear Mr. Archibald further on this point, because, if he altered our opinion, the Court would have amended the record. Rule discharged.

*192]

*HOLLIDAY v. The Vestry of the Parish of ST. LEONARD,

SHOREDITCH. May 22.

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.

The vestry of L., in whom were by the Metropolis Local Management Act (18 & 19 Vict. c. 120) vested the powers and duties of surveyors of highways, under the powers conferred upon them by that Act appointed a surveyor at a salary. Workmen employed by the surveyor, and paid out of the parish funds, being directed to carry certain paving-stones from a public street under repair, and place them in another public street, so negligently performed that duty that the plaintiff in driving through the last-mentioned street was upset and injured :-Held, that the vestry were not responsible.

THIS was an action for negligence. The declaration stated that the defendants, on the 12th of September, 1860, in a certain street called Shaftesbury Street, in the parish of St. Leonard, Shoreditch, in the county of Middlesex, laid, put, and placed a quantity of stones on and above the level of the surface of the said street, and wrongfully, carelessly, and negligently suffered and permitted the same to be left and remain in the said street on and above the level of the surface thereof, during the night, the same being a dark one, without a sufficient or any light or signal at or near to the said stones to cause the same to be seen by persons driving in and along the said street, and without having any watchman or person to take care of the same, and without having any board or protection, and without taking any reasonable or proper means or precautions to prevent the said last-mentioned persons from driving against or upon the said stones, and being injured thereby; and that, by means of the premises, the plaintiff, who was then riding and being driven in a cart in the said street, on the said night, was driven, and the said cart ran against and came into collision with and upon and against the said stones, and the plaintiff was cast and thrown from and out of the said cart down to and upon the ground, and was much hurt, bruised, wounded, and injured, and was put to great expense, to wit, &c., in and about endeavouring to get healed, &c.

Plea, not guilty by statute,-the statute referred to *in the margin being the General Highway Act, 5 & 6 W. 4, c. 50.

[*193

The cause was tried before Erle, C. J., at the sittings in Middlesex after last Hilary Term, when the following facts appeared in evidence: The defendants, the vestry of St. Leonard's, Shoreditch, in whom, by virtue of the Metropolis Local Management Act, 18 & 19 Vict. c. 120, s. 96,(a) are vested the powers and duties of surveyors of highways, and who by s. 62 of the same Act are empowered to appoint such surveyors, officers, and servants as they may think fit, duly appointed one Freeman to be the surveyor of the highways for the parish, at a salary.

In the early part of September, 1860, the pavement *in a [*194 certain street in the parish called Cavendish Street being under repair, the labourers employed, by the direction of the surveyor or his deputy, removed a quantity of old paving-stones from Čavendish Street to Shaftesbury Street, and there left them without any light or signal to give notice of the obstruction, and in consequence the plaintiff whilst being driven along the road there in a gig was upset and severely injured.

The surveyor, who was called, stated that he, as well as his deputy, were appointed by the vestry at a salary; that he employed the labourers, who were paid out of the parish funds; and that he directed the stones to be placed in Shaftesbury Street, but did not indicate the particular spot on which they were to be placed, and never saw them there.

On the part of the defendants it was submitted, that, being a public body acting gratuitously for the benefit of the public, and guilty of no negligence, they were not responsible for the negligence of their ser

vants.

The learned Judge declined to nonsuit, but directed a verdict to be entered for the plaintiff,-reserving leave to the defendants to move to enter a verdict for them, or a nonsuit, if the Court should be of opinion that they were not under the circumstances liable.

Raymond, in Easter Term last, obtained a rule nisi accordingly, on the grounds," first, that there was no evidence to go to the jury as against the defendants,-secondly, that the evidence showed that the defendants were not liable." He referred to Whitfield v. Lord Le Despencer, Cowp. 754, Hall v. Smith, 2 Bingh. 156 (E. C. L. R. vol. 9),

(a) Which enacts that "every vestry and district board shall, within their parish or district (exclusively of any other persons whatsoever), execute the office of and be surveyors of highways, and have all such powers, authorities, and duties, and be subject to all such liabilities as any surveyor of highways in England is now or may hereafter be invested with or liable to by virtue of his office, under the laws for the time being in force, so far as such powers, authorities, duties, and liabilities are not inconsistent with this Act; but all expenses which under any such law ought to be defrayed by highway-rates shall be defrayed by means of the rates to be raised under this Act, and all moneys which would be applicable in aid of such highwayrates shall be applied in aid of the said rates to be raised under this Act; and no such vestry or board shall be subject to any provisions concerning the accounts of surveyors of highways, or requiring any returns to be made to any special sessions; and all streets, being highways, and the pavements, stones, and other materials thereof, and all other things provided for the purposes thereof by any surveyor of highways, or by any person serving the office of surveyor of highways, or by any vestry or district board under this Act, shall vest in and be under the management and control of the vestry or district board of the parish in which such highways are situate."