9 J. B. Moore 226 (E. C. L. R. vol. 17), Duncan v. Findlater, 6 Clark & Fin. 894, and Manley v. The St. Helen's Canal Railway and Company, 2 Hurlst. & N. 840.†

*Shee, Serjt., Francis, and Galway, in Trinity Term, showed

*195] cause.--The persons whose negligence caused the injury to the

plaintiff having been employed by the salaried servant of the vestry to do the thing complained of, the case falls within the ordinary rule which makes an employer liable for the negligence of his servants and workmen. No ground can be suggested upon which a body like this can claim any immunity or exemption from liability. The case of Ruck v. Williams, 3 Hurlst. & N. 308,† very nearly approaches the present case. There the plaintiff was the owner of premises in Cheltenham which were drained by a sewer which emptied itself into the river Chelt. At the mouth of the sewer there was a flap or penstock which prevented any water of the river from flowing up the sewer. In the year 1852, an Act of parliament passed for improving the town of Cheltenham (15 Vict. c. 1), which directed the Commissioners appointed under it to make new sewers. Accordingly, the Commissioners constructed a new sewer which passed under the river Chelt near the plaintiff's premises, and removed the flap from the mouth of the old sewer and connected it with the new sewer. The plaintiff's premises were twelve feet below the summit-level of the new sewer. In July, 1855, there was a heavy storm of rain, by which the river Chelt was flooded, and in consequence the new sewer burst and the water of the river flowed into it. The Commissioners erected a stank round the hole, but, before the repair of the sewer was completed, another extraordinary flood took place, by which the stank was washed away, and the water of the river rushed into the sewer and forced the sewage matter and water into the plaintiff's premises, thereby causing great damage. The 15 Vict. c. 1, incorporates the 144th section of the Public Health Act, 1844, which provides, "that full *compen*196] sation shall be made out of the general or special district-rates to be levied under this Act, to all persons sustaining any damage by reason of the exercise of any of the powers of this Act. And it was held, first, that the Commissioners were liable to an action for negli gence, and were entitled to reimburse themselves out of the rates,and, secondly, that they were guilty of negligence in not putting up a flap or penstock at the mouth of the old sewer. There are no express words in the Metropolis Local Management Act directing out of what fund damages shall be paid; but the 224th section seems to imply that the vestry or district board are to be liable to damages.(a) In Duncan v. Findlater, 6 Clark & Fin. 894,-which will be relied on for (a)" In every case where the amount of any damage, costs, or expenses is by this Act directed to be ascertained or recovered in a summary manner, or the amount of any damage, costs, or expenses is by this Act directed to be paid, and the method of ascertaining the amount or enforcing the payment thereof is not provided for, such amount shall, in case of dispute, be ascertained and determined by, and shall be recovered before, two justices; and the amount of any compensation to be made under this Act by the said Metropolitan Board, or any vestry or district board, shall, unless herein otherwise provided, be settled, in case of dispute, by, and, shall be recovered before, two justices, unless the amount of compensation claimed exceed 50%, in which case the amount thereof shall be settled by arbitration, according to the provisions contained in the Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), which are applicable where questions of disputed compensation are authorized or required to be settled by arbitration."

the defendants, the persons employed were not in the situation of servants to the trustees. In Kendall v. King, 17 C. B. 483 (E. C. L. R. vol. 84), by the 17th section of the 8 & 9 Vict. c. 126, a select number of the justices for the county or borough, called the "committee of visitors," were empowered to contract for plans, &c., for the erection of a lunatic asylum for the county, &c.; *and by s. 16 they were enabled to sue and be sued in the name of their [*197 clerk and it was held that an action might be maintained against the committee of visitors in the name of their clerk, in respect of a contract so entered into by them,-although the plaintiff might have no means of enforcing his judgment when obtained. Cresswell, J., there says: "I am free to confess that the case is not without difficulties. Wormwell v. Hailstone, 6 Bingh. 668 (E. C. L. R. vol. 19), 4 M. & P. 512, is an instance of an action being held to be maintainable against. a clerk to trustees; for, though the execution against the nominal defendant was set aside, the action was maintained. In Andrews v. Dally, 4 Bingh. 566 (E. C. L. R. vol. 13), 1 M. & P. 490 (E. C. L. R. vol. 17), it was held that an action could not be maintained, not because no action would lie, but because a specific fund was provided to meet the claim. It is no answer, therefore, to say that the action will not lie, because the plaintiff cannot have execution. In general, if a man enters into a contract, and fails to fulfil it, he is liable to be sued." [ERLE, C. J.-There, the parties had made a contract in the regular course of the business for which they were constituted, and it became their duty to raise funds to enable them to perform it. That is very different from the case of an action for unliquidated damages for the negligence of a labourer or servant.] In The Southampton and Itchin Floating Bridge Company v. The Southampton Local Board of Health, 28 Law J., Q. B. 41, it was held that 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 an individual, e. g., for so negligently and improperly constructing a sewer as to cause a nuisance by its discharge. The local board of health," says Lord Campbell, C. J., "is a representative body, constituted by the rate-payers; and *there is no great injustice in saying that the rate-payers must [*198 ultimately be liable for the misconduct of the board which represents them. There would be less injustice in this than in saying that an individual injured has no substantial remedy." [ERLE, C. J.— That was a case in which the board had been guilty of negligence in the performance of a duty cast upon them by the law. The board by a resolution directed that the sewage should be poured out at an improper place: the nuisance was their act.] So, here, the vestry, by their servants, have been guilty of negligence in the performance of a duty cast upon them by the law. [BYLES, J.-Is a surveyor of highways, who has exercised due care in the selection of his subordinates, responsible for the acts of his labourers?] In Scott v. The Mayor, &c., of Manchester, 2 Hurlst. & N. 204,† the defendants, a municipal corporation, were empowered by Act of Parliament to construct gasworks and to supply gas and sell and dispose of the coke; the surplus profits to go in reduction of the water-rates and otherwise towards the improvement of the town. In an action against the defendants, the

66

declaration alleged that they employed workmen to lay down the pipes, who so negligently conducted themselves that a piece of metal was projected against the plaintiff. The defendants pleaded, that the grievances were bonâ fide done by the defendants in the course of executing the powers conferred on them by their Act, and without any neglect, misconduct, &c., of the defendants, otherwise than by their workmen or one of them, and that the workmen were well skilled and qualified and proper persons to be employed by them: and it was held by the Exchequer Chamber,-affirming the judgment of the Court of Exchequer, that the plea was no answer to the action. [BYLES, J.-There the corporation had the benefit of *the work *199] done.] In Jones v. Bird, 5 B. & Ald. 837 (E. C. L. R. vol. 7),

where it was held that commissioners of sewers were responsible for damage resulting from the negligent performance of works done by them, Bayley, J., says: "It is contended that the defendants are protected if they acted bonâ fide and to the best of their skill and judg ment. But that is not enough: they are bound to conduct themselves in a skilful manner." So, in Gibbs v. The Trustees of the Liverpool Docks, 3 Hurlst. & N. 164,† the defendants were held liable for the consequences of their negligence in suffering the entrance to the docks to continue in a dangerous state. [WILLES, J.-The Commissioners there invited people to come to their docks, and therefore were bound to take care that they were in a fit state. They could have no knowledge of that but by their officers or servants. I do not see how the case at all applies here.] By the 96th section it is provided that the vestry or district board shall be subject to the same liabilities as the surveyor of highways. Now, a surveyor of highways is liable for malfeasance: Alston v. Scales, 9 Bingh. 3 (E. C. L. R. vol. 23), 2 M. & Scott 5 (E. C. L. R. vol. 28): and see 5 & 6 W. 4, c. 50, s. 56, which imposes a penalty on a surveyor allowing stones, &c., to remain on a highway unguarded at night. [WILLES, J.-In Alston v. Scales, the thing complained of was the act of the surveyor himself: here, you are seeking to make the defendants responsible for the acts of others.] Davis v. Curling, 8 Q. B. 286 (E. C. L. R. vol. 55), shows that the surveyor would be liable for such an act as is here charged. The principle of the employer's liability for the negligent acts of servants and others, is well expounded by Littledale, J., in Laugher v. Pointer, 5 B. & C. 547, 553 (E. C. L. R. vol. 11),-" For the acts of a man's own domestic servants there is no doubt but the law makes him responsible; and, if this accident had been occasioned by a coachman who constituted a part of the defendant's own family, there would be no

*200] doubt of the defendant's liability: and the reason is, that he is hired by the master either personally or by those who are intrusted by the master with the hiring of servants, and he is therefore selected by the master to do the business required of him. This rule applies not only to domestic servants who may have the care of carriages, horses, and other things, in the employ of the family, but extends to other servants whom the master or owner selects and appoints to do any work or superintend any business, although such servants be not in the immediate employ or under the superintendence of the master. As, for instance, if a man is the owner of a ship, he himself appoints the master, and he desires the master to appoint and select the crew:

the crew thus become appointed by the owner, and are his servants for the management and government of the ship; and, if any damage happens through their default, it is the same as if it happened through the immediate default of the owner himself. So, the same principle prevails if the owner of a farm has it in his own hands, and he does not personally interfere in the management, but appoints a bailiff or hind who hires other persons under him, all of them being paid out of the funds of the owner, and selected by himself or by a person specially deputed by him-if any damage happen through their default the owner is answerable, because their neglect or default is his, as they are appointed by and through him. So, in the case of a mine, the owner employs a steward or manager to superintend the working of the mine, and to hire under-workmen, and he pays them on behalf of the owner. These under-workmen then become the immediate servants of the owner, and the owner is answerable for their default in doing any acts on account of their employer." Hall v. Smith, 2 Bingh. 156 (E. C. L. R. vol. 9), 9 *J. B. Moore 226 [*201 (E. C. L. R. vol. 17), turned entirely on the absence of funds to meet the claim; and the clerk was sued there, not the Commissioners themselves. Harris v. Baker, 4 M. & Selw. 27, was a case of the same class. In Sutton v. Clarke, 6 Taunt. 34 (E. C. L. R. vol. 1), 1 Marsh. 429 (E. C. L. R. vol. 4), and Boulton v. Crowther, 2 B. & C. 703 (E. C. L. R. vol. 9), 4 D. & R. 195 (E. C. L. R. vol. 16), it was assumed that the trustees would have been liable if they had been guilty of negli gence. In the last-mentioned case, Abbott, C. J., says: "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 done so is negatived by the finding of the jury. Persons employed in the execution of works for the Commissioners of Sewers under the 11 & 12 Vict. c. 112, are, by express enactment (s. 128), exempted from personal liability; but the Commissioners, nevertheless, may be sued: Ward v. Lee, 7 Ellis & B. 426 (E. C. L. R. vol. 90). In Whitehouse v. Fellowes, 10 C. B. N. S. 765 (E. C. L. R. vol. 100), where trustees of a turnpike road had been guilty of negligence in constructing and maintaining works, they were held responsible in damages to the party injured. In Meek v. The Whitechapel Board of Works, 2 Fost. & F. 144, an action was held to be maintainable against a local board, under the Metropolis Local Management Act, for not keeping a sewer cleansed, whereby it became choked up, and the overflow therefrom ran into the plaintiff's premises." [WILLES, J.-That would be something like the case of Gibbs v. The Liverpool Dock Company.] The judg ment of Maule, J., in Overton ". Freeman, 11 C. B. 867 (E. C. L. R. vol. 73), is strong to show that the defendants are liable for the negligence of the servants employed under them; as also in Seymour v. Greenwood, 6 Hurlst. & N. 359.+

Raymond and Watkin Williams, in support of the rule.-The rule is neatly stated in 1 Chitty Pl., 7th *edit. p. 87,-"Trustees and commissioners acting gratuitously in the execution of Acts [*202 of parliament for the benefit of the public, and intrusted with the conduct of public works, are not liable in damages for an injury occasioned by the negligence or unskilfulness of workmen and contractors necessarily employed by them in the execution of the works:"

and the cases of Hall v. Smith, 2 Bingh. 156 (E. C. L. R. vol. 9), 9 J. B. Moore 226 (E. C. L. R. vol. 17), Harris v. Baker, 4 M. & Selw. 27, Sutton v. Clark, 6 Taunt. 34 (E. C. L. R. vol. 1), 1 Marsh. 429 (E. C. L. R. vol. 4), and Boulton v. Crowther, 2 B. & C. 703 (E. C. L. R. vol. 9), 4 D. & R. 195 (E. C. L. R. vol. 16), are referred to. The facts of this case bring it precisely within the principle of Hall v. Smith, which was distinctly recognised in Humphreys v. Mears, 1 Man. & R. 187 (E. C. L. R. vol. 17), and Duncan v. Findlater. 6 Clark & Fin. 894. These authorities, it is submitted, are abundantly sufficient to establish the principle laid down by Chitty. The subject was much discussed in Lane v. Sir Robert Cotton, 1 Ld. Raym. 646, Comb. 110, 11 Mod. 12, 12 Mod. 482, 1 Salk. 17, Holt 582, Carth. 487, where it was held that the postmaster-general was not responsible for the loss of a letter through the negligence of one of the servants of the post-office: and that case was followed by Whitfield v. Lord Le Despencer, Cowp. 754, where Lord Mansfield, who goes very fully into the subject, puts it on the ground that public officers are not liable for constructive negligence by the acts of their subordinates. The same principle was acted upon in Nicholson v. Mouncey, 15 East 384, where it was held that the captain of a sloop of war was not answerable for damage done by her running down another vessel; the mischief appearing to have been done during the watch of the lieutenant, who was upon the deck and had the actual direction and management of the steering and navigating of the sloop at the time, and when the captain was not upon deck, nor was called upon by his *203] duty to be there. [WILLES, J.-*The captain of a vessel of war does not employ the other officers or the seamen.] The case is perhaps open to that answer. Here, Freeman, the surveyor, received no specific direction from the vestry to do as he did; nor did he direct the workmen to place the stones where they were placed. Upon what principle, then, can the defendants be liable? The 96th section of the Metropolis Local Management Act, it is true, imposes upon the vestry the duties of surveyors of highways: but the surveyor of the highways is only liable for his own acts. Not one of the cases relied upon for the plaintiff at all trenches on the principle on which the defendants rest their case.

ERLE, C. J.-I am of opinion that this rule should be made absolute. The action is brought to recover damages for an injury sus tained by the plaintiff through his being upset whilst driving along a public highway in a gig, in consequence of certain paving-stones having been negligently and improperly left there. The question was whether the defendants are liable for the act of the workmen employed by their surveyor in so negligently placing an obstruction in the way. The defendants are the vestry of the parish of St. Leonard, Shoreditch,-a public body clothed with a public trust and liable for the performance of a public duty under the Metropolis Local Management Act, 18 & 19 Vict. c. 120. Under the powers conferred upon them by that Act, the vestry appointed one Freeman to be surveyor of highways for the parish, and he employed certain labourers or workmen to do certain work, and in the course of that employment the workmen did the wrongful act which occasioned the damage of which the plaintiff complains. If, instead of a public body,