this had been the case of a private individual employing workmen to pave a highway, *and an injury had resulted to a third person [*204 from the negligent conduct of the workmen in performing the work, it is agreed on all hands that the employer would have been liable. But the question is whether the defendants, being trustees for public purposes, gratuitously giving their services for the public. good, can be made liable where they have personally been guilty of no default, and in fact were ignorant of the work being done, the employment of the workmen being the act of their surveyor. I am of opinion that they are not liable. The principle which has been contended for by Mr. Raymond and Mr. Watkin Williams appears to have been recognised and acted upon for a very long time, and seems to me to stand upon a perfectly sound ground. That principle is, that persons intrusted with the performance of a public duty, discharging it gratuitously, and themselves taking no personal share in the mode of its performance, are exempted from liability for the negligent acts of the persons employed by them. Hall v. Smith, 2 Bingh. 156 (E. C. L. R. vol. 9), 9 J. B. Moore 228 (E. C. L. R. vol. 17), is cited as the first of a series of authorities ending with Duncan v. Findlater, 6 Clark & Fin. 894, where that principle of the exemption of public trustees has been fully recognised. In the last-mentioned case, a supposed difference between the English and the Scotch law upon this subject was pressed upon the House of Lords; but it was held that the exemption from liability was the same in both. Lord Cottenham, C., there says: "When trusts are created, it is plain that for the public benefit the Courts should have a common principle of dealing with them, on which might be engrafted such special rules as it seemed advisable to adopt on account of the particular circumstances of one or other of the two countries. In England we have long held that the trustees of a turnpike road are not liable in cases *of this sort: Harris v. Baker, 4 M. & Selw. 27; Humphreys [*205 r. Mears, 1 M. & R. 187 (E C. L. R. vol. 17); Hall v. Smith, 2 Bingh. 156, 9 J. B. Moore 226. In all these cases it was distinctly held that such trustees are not answerable but for their own personal default." The circumstances of Duncan v. Findlater were very similar to those of the present case. There, a large open drain on the side of the turnpike-road, which had been constructed by an adjoining proprietor, and was conceived by the road trustees to be very dangerous to passengers, was in the course of being filled up under the superintendence of the surveyor of the trust, and under general directions from the trustees, to the effect that the drain should be filled. The stones which were intended to be used in this operation were carted to the spot and placed in the immediate neighbourhood of the ditch. They were piled up upon the footpath and upon a part of the road. Late in the evening of that day, the pursuer passed the spot in question on his return from Dundee. It happened that a carter was in the middle of the road, to whom the pursuer called out to know whether there was room to pass. He was told that he might pass. The night was extremely dark: there were no lights in the pursuer's gig: the wheels came in contact with the stones, the gig was overturned, and thus the accident happened. The part of the case which makes it a sound decision and applicable here, is, that no evi dence was offered to connect the trustees directly with the cause of the accident. It was not pretended that they were in the slightest degree accessory to the placing of the stones on or near the road. They had given a general direction that the drain should be filled; but they gave no direction as to the particular mode in which the operation should be carried through. They intrusted, as was usual, the execution of the whole details to their surveyor, and the operation *206] was carried on under his direction by persons whom he employed. And the decision of the House was, that the trustees were not responsible for the injury thus occasioned. That is the principle on which the defendants rely for their exemption from liability here they were guilty of no personal default. In The Southampton and Itchin Floating-Bridge Company v. The Southampton Local Board of Health, 28 Law J., Q. B. 41, the defendants directed the sewer to be emptied so as to be injurious to the plaintiffs. The thing complained of was not negligence in the performance of a duty. If it was a violation of the law, it was their act. So, in Alston v. Scales, 9 Bingh. 3, 2 M. & Scott 5, where the surveyor of the highway was held liable for cutting away a portion of the plaintiff's land, the act was wrongful and done under the personal direction of the defendant. Scott v. The Mayor, &c., of Manchester, 2 Hurlst. & N. 204,† does not fall within the class of cases which proceed upon the ground that the defendants are public trustees acting gratuitously: the defendants manufactured gas for the supply of the city of Manchester, deriving a profit therefrom and from the sale of coke; they were therefore liable just as any private manufacturer of gas would be. The case of Gibbs v. The Trustees of the Liverpool Docks, 3 Hurlst. & N. 164,† falls within something like the same principle. Although the trustees personally derived no profit from the dock-dues, yet all persons coming with their vessels to the docks paid for entering therein, and had a right to expect the accommodation for which they paid. The Company allowed the entrance to be and continue unsafe, from neglect to cleanse it, and the plaintiff's vessel in consequence grounded and was damaged. The case was the same, in substance, as that of Parnaby v. The Lancaster Canal Company, 11 Ad. & E. 223 (E. C. L. R. vol. 39), 3 P. & D. 162. There, *the declaration stated that, by the *207] Canal Act (32 G. 3, c. ci.), 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; and that, although the Company could and ought to have requested the owner, &c., to weigh it up, and, if that was not done without loss of time, could and ought to have weighed it up, and in the mean time 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 plaintiff's boat, navigating the canal, ran foul of the sunken boat and was damaged: and it was held by the Exchequer Chamber (affirming the judgment of the Court of Queen's Bench), that the declaration disclosed a sufficient duty and breach,-the Court of error holding that such duty was not created by the clause enabling the Company to weigh the boat, but arose upon a common law principle that the owners of a canal, taking tolls for the navigation, were bound to use reasonable care in making the navigation secure, the want of which reasonable. care might be collected from the declaration, although the complaint was ostensibly founded on the statute. Sutton v. Clarke, 6 Taunt. 29 (E. C. L. R. vol. 1), 1 Marsh. 429 (E. C. L. R. vol. 4), and Boulton ". Crowther, 2 B. & C. 703 (E. C. L. R. vol. 9), 4 D. & R. 195 (E. C. L. R. vol. 16), are also authorities to show that trustees acting gratui tously in the performance of a public duty under an Act of [*208 parliament, are not responsible for acts done by them within. the scope of their duty, provided they are personally guilty of no negligence or oppression; but they have no very proximate bearing upon the present case. The defendants not having exceeded the limits of their duty, or been guilty of any negligence or personal wrong, the case falls within the principle of Hall v. Smith, confirmed as it has been by Humphreys v. Mears and Duncan v. Findlater. WILLES, J., concurred. BYLES, J.-I am of the same opinion. In Scott v. The Mayor, &c., of Manchester, 2 Hurlst. & N. 204,+ Cockburn, C. J., says that the case is distinguishable from those cited by the defendants, because, though the individuals composing the corporation acted gratuitously, yet the corporation and the township derived a profit from the carrying on of the works. That was the ground upon which the judgment of the Court of Exchequer was confirmed by the Exchequer Chamber. With regard to Hall v. Smith, although it was animadverted upon by the Lord Chief Baron, and by Alderson, B., in Scott v. The Mayor, &c., of Manchester, 1 Hurlst. & N. 59,† it was distinctly recog nised as a binding authority by Lord Tenterden in Humphreys v. Mears, and by Lord Cottenham in Duncan v. Findlater. And it is to be observed that the principle was not so well settled then as it has been since. In Whitehouse v. Fellowes, 10 C. B. N. S. 765 (E. C. L. R. vol. 100), the defendants were personally cognisant of and parties to the works which caused the injury complained of; therefore this question did not arise there. Here, the defendants are public officers, acting gratuitously and compulsorily, and having no funds out of which the damages could be paid; and the cases show, that, under such circumstances, being guiltless of personal negligence, they are not liable. I cannot entertain any doubt that the ob: [*209 jection is a valid one, and that the verdict should be entered the other way. Rule absolute. That those charged with the repair of the public roads or streets are responsible at common law for the consequences of their negligence, if their liability be not qualified by the statute imposing it (Mower v. Leicester, 9 Mass. 247), is a familiar doctrine: Rex v. Sheffield, 3 Term Rep. 106; Rex v. Kingsmore, 2 B. & C. (9 E. C. L.) 190; Wheeler v. Troy, 20 N. H. 77; Bartlett v. Crozier, 15 Johnson (N. Y.) 250; 17 Id. 439; Erie City v. Schwingle, 10 Harris (Pa.) 384; City of Dayton v. Pease, 4 Ohio State R. 80; but there is some conflict of authority in this country as to their responsibility for the negligence of the servants of one employed by them either generally, as in the principal case, or as a contractor to do specific work. It has been very generally decided here that Bush v. Steinman, 1 Bos. & Pul. 404, is no longer law, and that, to quote the language of Cockburn, C. J., in Gray and Wife v. Hubble & Pullen, 32 L. J., N. S., Q. B., 1863, cited by Strong, J., in the late case of Painter v. The City of Pittsburgh, 3 Am. Law Reg., N. S., 350, 1864-" if a person in the exercise of his rights as a private individual, or of those conferred upon him by statute, employs a contractor to do work, and the latter is guilty of negligence in doing it, the contractor, and not the employer, is liable." The American authorities upon this point are collected in a valuable note to the case of Painter v. The City, ut supra. In New York the leading case is Blake v. Ferris, 1 Seld. 48, which has since been followed in Peck v. The Mayor, 4 Seld. 222; Kelly v. The Mayor, 1 Kern. 432, s. c. 4 E. D. Smith 291; Potter v. Seymour, 4 Bosw. 140, and others. In Massachusetts the same rule was established in Hilliard v. Richardson, 3 Gray 349, which contains "the most exhaustive examination of the point to be found in any case;" while it was also adopted in Barry v. St. Louis, 17 Mo. 129; De Forest v. Wright, 2 Mich. 368; Carman v. Railroad Co., 4 Ohio State Rep. 399; Scammon v. Chicago, 25 Ill. 424, and others. In Painter v. Pittsburgh, and Barry v. St. Louis, the principle was successfully invoked to shield a municipal corporation from the consequences of an accident caused by a failure to put proper guards around an excavation in the street-that failure being treated as the negligence of the contractor's servants-but in New York a distinction was taken in Storrs v. The City of Utica, 17 N. Y (3 Smith) 104, which materially qualifies the rule enunciated in Blake v. Ferris, and it was held that the corporation cannot escape responsibility by interposing the contract made for the very thing which creates the danger. The distinction was thus stated in O'Rourke v. Hart, 5 Bosw. 511: "Where the injury has resulted from some dangerous condition in which the defendant had put the street, and that condition, and not the means by which it was created, had caused the injury, then it might be said the defendant was the author of the mischief, as he created a condition of things which, in the very state of things he had contracted for, caused the injury." Hence the contractor, and not the corporation, would be liable for an accident caused by the negligence of his servants in the execution of the work, but the corporation, and not the contractor, for one resulting from the condition of the street: and this would seem to be the necessary result from the case of The City of Buffalo v. Holloway, 3 Seld. 493, in which it was decided that a contractor, under a contract to construct a sewer, is under no obligation to the corporation employer to take measures to prevent persons from falling into the ditch while in the process of construction. That this is the settled law in New York, would appear from the fact that the liability of the corporation does not seem to have been even questioned in the last case on the subject (Grant v. City of Brooklyn, 41 Barb. 381). In The City of Chicago v. Robbins, 2 Am. Law Reg., N. S. 529, however, the Supreme Court of the United States decided that an excavation made in the public street would become a nuisance, if not properly guarded, and the one making it would be liable to those injured by the want of proper precaution. In this case, too, the employer of the contractor was not allowed to screen himself by interposing the contract, though Strong, J., suggests (Painter v. The City), that he had the right, which he exercised, to supervise the work, and was held liable apparently for his own negligence." Of course if the injury arises "from the nature of the work contracted to be done, and not from a failure to execute it carefully," the corporation is everywhere held liable: Ellis v. Sheffield Gas. Co., 2 El. & Bl. 767 (E. C. L. R. vol. 75); Lockwood v. New York, 2 Hilton (N. Y. C. P.) 66; Leman v. The Mayor, 5 Bosw. 414; St. Paul v. Seitz, 3 Minnesota 297, and many other cases. It should perhaps be added that in James v. San Francisco, 6 Cal. 528, it was held that the obligation to keep the streets in repair is necessarily suspended while they are undergoing such alterations as, for the time, make them dangerous, and if an injury results, the contractor and not the city is liable. GEORGE RANSLEY WHITE and SARAH ELIZABETH his Wife, and ROBERT KING CROSS and LILLA PHILIPPS his Wife, Appellants; WILLIAM GREENISH, Respondent. Nov. 18. By a deed of settlement of the 7th of August, 1832, a farm was conveyed to A. for life (subject to a term of 1000 years), with power to lease for three lives, with a remainder over which ultimately became vested in B. and C. The term of 1000 years was created for the securing a sum of 30007., and was at the time of such settlement vested in two trustees, one of whom was A., the tenant for life. In exercise of the leasing power, A. granted a lease of the farm for three lives, under which lease the plaintiff (below) became tenant, subject to the rent thereby reserved, and which rent was paid by the plaintiff (below) to B. and C. (or to R. & D., their attorneys) upon their coming into possesion of the property. Subsequently, R. & D., as the attorneys for B. and C., wrote to the plaintiff (below) stating that the legal estate under the term for 1000 years was in J. S., and directing him to pay the rent to J. S.; and, in consequence of that communication, the plaintiff (below) allowed J. S. to recover judgment against him in an action for rent under the lease. B. and C. afterwards distrained for rent as due to them; whereupon the plaintiff (below) brought replevin, and a case was stated by the County Court Judge for the opinion of this Court : Held, that, as the term of 1000 years had (as to one moiety) merged in A. and B., and C. had therefore a right to distrain for a moiety of the rent, the effect of the representation by R. & D. would not estop B. and C. from recovering rent which the plaintiff (below) had not paid in consequence of such representation, or had not made himself liable to pay under the judgment obtained against him by J. S. Whether the representation by R. & D. was binding on B. and C. as an estoppel, they being married women and consequently incapable of appointing attorneys,-quære? THIS was an action of replevin brought in the County Court of Pembrokeshire by William Greenish, plaintiff, against George Ransley White and Sarah Elizabeth his wife, and Robert King Cross and Lilla Philipps his wife, defendants. The taking by the defendants was admitted under a warrant of distress for rent alleged to have been due for the farm of Cotts, in the parish of Hasguard, in the county of Pembroke; and it was alleged on the part of the plaintiff that the defendants were not possessed of the legal estate, which was *alleged to be in one Abraham James Nisbett Connell. [*210 Judgment was given for the plaintiff, with 37. 3s. damages, and against this judgment the defendants appealed. The following documents and facts were admitted before the trial:- |