damage did not arise from any breach of duty on the part of the commissioners. They were not bound to light heaps of rubbish, but merely to set up such lamps to light the road as in their discretion they thought proper. It is objected that the defendants have a discretion as to cleansing the docks, under 6 Geo. 4, c. clxxxvii. s. 130(a); and 4 Vict. c. xxx. s. 124 (6). It is not disputed that if they have a discretion, and have exercised it bonâ fide and without negligence, they are not responsible. Perhaps they are not liable for an indiscreet exercise of their discretion. But it is impossible to say that, because the trustees have a discretion as to the time and manner of repairing, they cannot be made responsible for negligence. The first count alleges that "the defendants had in their hands funds produced by the duties sufficient for the maintaining, cleansing, supporting, and preserving the

(a) Which enacts,—"That all the monies which shall be collected, levied, borrowed and raised under this Act, &c., shall be applied in any order with respect to priority of such application as to the said trustees shall seem expedient and proper (except, &c.) in paying and defraying the charges and expenses of obtaining this Act, and in paying the expenses and charges of collecting the rates and duties, and all interest due and to grow due from time to time on monies borrowed or taken up at interest by the said trustees, and any principal monies that may be called in from time to time, and in the general management and conducting of the said trust estate, in the construction of the works by this and the said former Acts

authorized to be erected, estab-
lished and maintained, in support-
ing, maintaining, and repairing
the same and every part thereof,
and in carrying into execution
all the provisions of the said
several recited Acts and this
Act, and in paying off and dis-
charging the whole or any part of
the present bond or other debt,
and any future bond or other
debt, and all interest due and to
grow due thereon, and also in
defraying, paying and satisfying
all the charges and expenses
already incurred or hereafter to
be incurred in carrying into exe-
cution the several purposes of, or
under or in consequence of any
of the clauses, provisions, powers,
or authorities contained in the
said former Acts or this Act."

(b) See vol. 1, p. 442, note (a).

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docks, in addition to the satisfaction and discharge of all other charges, &c. of which the defendants had notice: Yet the defendants did not take due and reasonable or any care in maintaining, cleansing, supporting and repairing the said docks." The defendants are thereby charged with not having exercised their discretion. The second count charges the defendants with negligence; it closely resembles that in Parnaby v. The Lancaster Canal Company (a). The 18 & 19 Vict. c. clxxiv. s. 25 (6) shews that the Legislature considered that the trustees were liable for negligence such as is charged in the count, and the 6 Geo. 4, c. clxxxvii. s. 134 (c) provides for the payment of the amount of any damage out of the funds of the corporation. On that ground the case of Metcalfe v. Hetherington (d) is distinguishable from the present. The judgment in that case does not point to a declaration charging negligence. The principle of that case might be applicable if the declaration in this case was for not applying the funds.— (He also argued that the defendants were liable for the acts of the committee; but as this point was abandoned by the defendants' counsel, who desired to have the opinion o the Court on the general question, no judgment was given upon it, and the argument is therefore not reported.)

Quain, for the defendants.-The defendants are not liable to be sued. They are trustees managing the docks

(a) 11 A. & E. 223.

(b) Which empowers the trustees to run dry the docks for the purpose of repairs and to remove any vessel, "or to give reasonable notice to the master, &c., of such vessel to remove the same out of the said dock And in case the said vessel shall not be removed

after such notice, the trustees shall not be responsible for any damage caused to the said vessel or any cargo therein, by reason of their letting the dock, in which such vessel shall be lying, run dry, as aforesaid," &c.

(c) See vol. 1, p. 442, note (c). (d) 11 Exch. 257.

As

for the benefit of the public. They are a corporation, but
there are no shareholders, no stock and no dividends.
soon as the income exceeds the expenditure the trustees
are bound to reduce the rates: 51 Geo. 3, c. cxliii. s. 27.
Hall v. Smith (a) and Sutton v. Clarke (b) shew that there
is a distinction between the liability of trustees for public
purposes and other persons. The cases in which such
trustees are held liable to actions are where they have been
guilty of misfeazance, or negligence in doing some act in
an improper manner, not for the mere omission to do a
particular act. Here the first count does not shew that
the trustees had funds which they were compellable to
apply in cleansing the docks. It is consistent with this
count that they may have retained funds for the construc-
tion of lighthouses, or other public works which they
have a right to execute. No legal duty for the breach of

which an action at law would lie is shewn to have existed.
At most there was a trust enforceable in equity. The
entrance into the docks is a public highway. Suppose it
had been a turnpike road, no action would have lain against
the trustees for leaving such an obstruction as that in the
present case. By 11 Geo. 2, c. 32, s. 14, the defendants are
empowered to set up lamps along the quays. By 6 Geo. 4,
c. clxxxvii. s. 72, they may erect light-houses for the
safety of vessels navigating to or from the port. Could it
be contended, if the trustees thought that at particular
points lamps or light-houses were not required, that they
could be made liable for an accident occasioned by the
want of such lights, because a jury might choose to say
that there was negligence in not providing lamps or light-
houses? [Crompton, J.-Pardoe v. Price (c) shews that
(b) 6 Taunt. 29.

(a) 2 Bing. 156.

(c) 16 M. & W. 451.

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though an act of parliament may direct that money shall be applied in a particular manner, the nonapplication of it in such manner does not necessarily give a right of action, where the relation of the parties to the action is that of trustee and cestuique trust.] Here the defendants are empowered to erect cranes by 51 Geo. 3, c. cxliii. s. 78; to provide life boats by 6 Geo. 4, c. clxxxvii. s. 68. They are compellable to make accommodation for steamboats by 6 Geo. 4, c. clxxxvii. ss. 65, 66, and to make a landing slip at St. George's Pier by 7 & 8 Vict. c. lxxx. s. 114. How can it be said that the trustees are liable to an action if they secure money for executing these works before cleansing the dock? Suppose, Docks A. and B. being out of repair, the defendants choose to repair Dock A., and a ship goes into Dock B. and is injured, it is surely not a question for a jury which dock the trustees ought to have first repaired. They have a discretion to exercise as to the application of the funds, which cannot be controlled by the verdict of a jury: Metcalfe v. Hetherington (a). The 130th section of the 6 Geo. 4, c. clxxxvii. does not impose on the trustees any legal duty for the breach of which an individual who has sustained damage can maintain an action at law. The principle established by the authorities is, that where a duty is imposed by statute or arises from a grant by the Crown, the remedy for the breach of it is by indictment or mandamus; and an individual can only maintain an action in respect of a peculiar damage sustained by him Henley v. The Mayor of Lyme Regis (b), Russell v. The Men of Devon (c), M'Kinnon v. Penson (d). Here no indictment or mandamus could be supported for not

(a) 11 Exch. 257.

(b) 3 Bing. 91; S. C. in error, 3 B. & Adol. 77; In Dom. Proc.

1 Bing. N. C. 222.

(c) 2 T. R. 667.
(d) 9 Exch. 609.

cleansing the dock: Rex v. The Inhabitants of Netherthong (a), Regina v. The Trustees of the Oxford and Witney Turnpike Roads (b): and the only remedy is in a court

of equity by information at the General for the breach of trust.

suit of the Attorney
Pardoe v. Price (c),

Edwards v. Lowndes (d) and Regina v. The Trustees of the Balby Turnpike Road (e) are authorities that the clauses in question do not create any legal duty as regards the trustees and the public at large, but merely the relation of trustee and cestui que trust. Moreover, the declaration charges mere acts of nonfeazance, and there is no authority that in such case trustees are liable to an action. Sutton v. Clarke (f) decided that if a person who, in the exercise of a public function without emolument, which he is compellable to execute, acting without malice and according to his best skill and diligence, and obtaining the best information he can, does an act which occasions consequential damage to a subject, he is not liable to an action for such damage. That principle has been adopted in subsequent cases; and it is now well established that trustees of public roads are not responsible for an injury occasioned by the negligence of the men employed in making or repairing the road: Hall v. Smith (g), Humphreys v. Mears (h), Duncan v. Findlater (i), Harris v. Baker (k). Indeed, the legislature has protected trustees of roads from liability when acting within the scope of their authority: 7 & 8 Geo. 4, c. 24, ss. 2, 3. The judgment in The Lancaster Canal Company v. Parnaby (1) proceeded on the ground that the Company made the canal for their profit, and

1858.

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t.

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OF THE

LIVERPOOL
Docks.