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Hong Kong, in an action, was reversed, and a nonsuit directed to be entered. On the receipt of this order in the colony, the successful appellant, to carry the order into execution, applied to the Supreme Court for an order for repayment of the amount of the judgment, with interest upon the whole sum paid by way of principal and interest by the appellant. The Supreme Court was of opinion, that as there were no express directions in the order in council for payment of interest on the judgment, it had no power to allow interest, and refused to make any order thereon :-Held, that although by the terms of the order in council the judgment of the Supreme Court was only reversed, and a nonsuit directed to be entered, yet, (1) that interest upon the judgment was to be implied under the general words there used; and (2) that inasmuch as under the general regulations of 1845, applicable to appeals from Hong Kong to the Queen in council, the Supreme Court is to execute and carry into effect the judgments and orders of the Queen in council, that court had power, without more, to have ordered payment of interest; as otherwise the successful appellant would not be restored to all he had lost by reason of the judgment being reversed. Rodger v. Comptoir D'Escompte de Paris, 3 L. R., P. C. 465 40 L. J., P. C. 1; 24 L. T. 111; 19 W. R. 449; Moore, P. C. C., N. S. 314.








1. Extent of, 217.

2. Cesser of, 218.


1. Compensation, 218.

2. Contracts, 218.

3. Negligence, 221.

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I. APPOINTMENT AND QUALIFICATION. By Majority of Proprietors-Neglect of Conditions-Validity.]-By a local inclosure act it was provided that whenever the office of commissioner should be vacant, the lord of the manor, with the major part in value of the proprietors of lands and common rights in the parish (such value to be ascertained according to their respective assessments in the last rates made for the relief of the poor of the parish, in the said parish) present at a public meeting, should elect another. The office of commissioner having become vacant, a new one was elected by the lord of the manor and the major part in value of the proprietors of lands at a public meeting. No one there disputed that he had such majority, but no reference was made to the poor-ratesHeld, that, nevertheless, the appointment was valid. Doe d. Harris v. Bodenham, 9 B. & C. 495.

Of Agents-Right to Officiate.]-A local drainage act created the lords or ladies of three manors, or, in his, her or their absence, their agents appointed in writing under their hands, commissioners for executing the act. It authorized the commissioners to take lands for the purpose of the drainage, and it contained clauses for that purpose to the same effect as those in the Lands Clauses Act, 8 & 9 Vict. c. 18, subsequently passed; and it provided that no person should be capable of acting as a commissioner or agent for a commissioner till he had made a declaration that he would duly execute the powers, in the exercise of which he should act as commissioner or agent. The three lords of the manors, by writing under their hands, appointed the defendants their agents, but without having first made the declaration. These acted as commissioners (first making the declaration), and gave the plaintiff a written notice that they required to take, for the purposes of the act, his land, describing the specific acres, roods and perches. The plaintiff refused to treat, and the commissioners thereupon issued a warrant to the sheriff of the county to summon a jury to assess the sum to be paid to the plaintiff for the purchase of the land required for the purpose of the act. Both the notice and warrant were in the defendants' names as commissioners. A jury was empannelled, and assessed the price of the land. The plaintiff, who had throughout protested against the proceedings, refused to receive the price so assessed. The defendants paid it into a bank, under the authority of the local act enabling them so to do, and entered on the land. The

IV. ACTION BY AND AGAINST CLERKS OF plaintiff having thereupon brought an action


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against them :-Held, that the lords and ladies of the manors were commissioners by virtue of See CHA- the local act, and if they did not choose to associate, might appoint agents for such time as

they thought proper, which agents thereupon missioners, and transferring to them the powers became commissioners, and might issue notices of the former commissioners, enacted, that "all and warrants in their own names, and were provisions in the former act contained in refernot bound to shew, on the face of their proceed-ence to the commissioners thereby appointed ings, for what lord or lady they respectively shall be held to apply to the commissioners to be acted. Ostler v. Cook, 18 Q. B. 831; 22 L. J., appointed under this act and the acts of such Q. B. 71; 17 Jur. 370-Ex. Ch. commissioners, in the same manner as if the same were re-enacted and repeated in that act (except as far as the same are repealed by or are inconsistent with its provisions), and that the two acts shall be construed together as one act ;" sect. 7 required a different qualification, but there was no clause in the act of Victoria which in terms imposed a penalty on persons acting as commissioners without such qualifications:Held, that a person who acted as a commissioner under the 1 Vict. c. 33, without being qualified as required by that act, was liable to the penalty imposed by the 3 Will. 4, c. 68. Gough v. Hardman, 5 H. & N. 112.

Held, also, that such appointment of an agent was well executed, though the lord or lady had not previously made the declaration required by the local act. Ib.

Money Qualification — Construction.] - By a local act a commissioner of a court of requests was liable to a penalty of 501. if he acted without having a qualification of 50l. a year in real property, or 1.5007. in personal, or 257. a year real, and 1.0007. personal property, "above all charges and incumbrances whatsoever," the proof of which qualification was by that statute to lie on him in any action against him for the penalty: -Held, that the words "above all charges and incumbrances whatsoever" did not mean beyond payment of all his debts, but only applied to specific charges on the property in respect of which he claimed to be qualified. Dumelow v. Lees, 1 C. & K. 408.

Disqualification by Interest.]-A local act directed that no person should be capable of "acting as a commissioner in execution thereof, in any case wherein he shall be personally interested in the matter in question," and that any person who should so act as a commissioner being so disqualified, should forfeit 1007. The commissioners were in part elected by parishes within a certain precinct. An order had been made by them for constructing a footway along the frontage of the defendant's, among other premises, in a particular manner. The defenProperty Qualification—Occupier.]-By a light-dant, who was afterwards elected a commissioner, ing and watching act no person was qualified attended at a special meeting of the commisto be a commissioner unless he should be an occu- sioners, and first moved to rescind the order as pier of premises in the township, and be rated to all except his own premises, which was negafor the same on the poor rate, at 357., or unless tived. On a motion being made to alter the he should be rated on such rate, and be possessed order, by adopting a less expensive mode of payof property in the township of the value of ing, he supported the proposition in a speech, 1,5007.-Held, that a person possessed of pro- and took an active part in the discussion and in perty to that amount at the time of election, but opposing the original order. He then proceeded who was not an occupier until after making the to the ballot with the other commissioners. In rate preceding the election, and whose name was an action for the penalty, there was a count not on the rate when it was made, though in- charging the defendant with acting as commisserted after, in pursuance of the 17 Geo. 2, c. sioner where he was personally interested, and 38. s. 12, was not qualified. Reg. v. Eddowes, voting accordingly. Another count only charged 1 El. & El. 330; 28 L. J., Q. B. 84; 5 Jur., him with acting as such commissioner in a case N. S. 469. in which he was personally interested. The jury found that the defendant did not vote on the occasion in question, and gave him a verdict:

Held, that he did not act as a commissioner in proposing or rescinding the order, except as to his own premises, but there was evidence that he had acted as a commissioner by addressing the meeting on the motion for altering the order, and by taking an active part in the discussion ; and that, as the only question left to them was whether he had voted, and not whether he had acted as a commissioner in any other manner, he was entitled to a new trial. Charlesworth v. Rudgard, 1 C. M. & R. 498; 4 Tyr. 824.

The evidence of a person who proceeds to a ballot, is admissible as to the share he personally took in it. Ib.

Held, also, that in such an action it was sufficient if he shewed that he had property to the required amount ; and that it was not incumbent on him to give any evidence with a view of shewing that the property was not encumbered. Ib.

According to Rates.]-By a local act it was enacted that twelve inhabitants, householders, resident in the town or parish of Rye, rated to the relief or maintenance of the poor of the parish, by one or more rate or rates, to the amount of 101. per annum, should be appointed commissioners of the harbour of Rye-Held, that the rateable annual value, and not the rates payable, conferred the qualification. Easton v. Alice, 7 H. & N. 452; 31 L. J., Ex. 115; 8 Jur., N. S. 156; 5 L. T. 323; 10 W. R. 110.

Acting without Qualification under 1 Vict. c. 33.-A local act of 3 Will. 4, c. 68, for improving a township, provided that no person should be capable of acting as a commissioner in the execution of that act, unless he should have the qualification thereby required; sect. 10 imposed a penalty of 501. on any person who should act as a commissioner without being qualified. The 1 Vict. c. 33, repealed the provisions of the first act as to the appointment, number, mode of election, and qualification of commissioners; sect. 2, after defining the number of the new com

By an act for lighting a town. no person shall be capable of acting as a commissioner in the execution of the act who shall be interested in any contract for furnishing, supplying, or selling any article, matter, or thing to be employed or made use of for the purposes of the act:-Held, that a person who had contracted with former commissioners to sell a plot of land to be used for the purposes of the act was not disqualified

from acting, though the conveyance had not been executed. Woolley v. Kay, 1 H. & N. 307; 25 L. J.. Ex. 351.

Assessment of Damage-Trial of Facts.]-An act gave powers to a company to make a canal, and provided that certain commissioners should determine, by the verdict of a jury, the sum to be paid for damage caused by the works authorized by the act. Action on a judgment of the commissioners to recover the damage assessed by a jury. Plea, that the damage for which compen

A local act incorporated 10 & 11 Vict. c. 16. By sect. 2 of the local act, every male person of fall age, rated to the relief of the poor in a certain amount, shall be a commissioner. By 10 & 11 Vict. c. 16, s. 9, any person who after his appointment as a commissioner shall be concerned or participate in any manner in any contract, shall thenceforth cease to be a commissioner. By sect. 15, every person who shall act as a com-sation was awarded was not caused by reason of missioner, after having become disqualified, shall the execution of the company's powers, and that be liable to a penalty of 501. In an action, the commissioners had no jurisdiction to assess against a person for the penalty for having acted the damage:-Held, that the commissioners had as a commissioner after he was disqualified, an no jurisdiction to try the question as to the fact invoice was produced, in his handwriting, ad- of damage, but only to assess the damage, if any. dressed "To the Commissioners of St. Ives," and Barber v. Nottingham and Grantham Railway charging them for lime supplied on several acca- and Canal Company, 15 C. B., N. S. 726; 33 sions during four months. He became a com- L. J., C. P. 193; 10 Jur., N. S. 260; 12 W. R. 376. missioner by reason of possessing the qualification required by sect. 2 of the local act-Held, first, that he was appointed a commissioner within the meaning of 10 & 11 Vict. c. 16, s. 9. Nicholson v. Fields, 7 H. & N. 810; 21 L. J.. Ex. 233; 10 W. R. 304.

Held, secondly, that by being concerned in a contract, he became disqualified to act as a commissioner within the meaning of sect. 15. Ib.

Held, thirdly, that the invoice was evidence from which a jury might find that he was concerned or participated in a contract within sect. 9. Ib.

Of Oyer and Terminer.]-In commissions of oyer and terminer, while the whole body of the justices named in the commission constitutes the court of over and terminer, each judge sitting under it represents the court so that whatever takes place before a single judge is considered as done constructively before the whole court. Leverson v. Reg. (in error), 4 L. R., Q. B. 394 ; 38 L. J., M. C. 97; 20 L. T. 485; 18 W. R. 251; 10 B. & S. 404.

10 L. R., Eq., 152; 39 L. J., Ch. 624; 18 W. R. 685.




Application of Funds.]-Commissioners under a local act, the object of which was to supply a town with water, were empowered to raise funds by assessment to be applied in certain having immediate reference to the purposes of the act, and in otherwise carrying it into execution:-Held, that although the commissioners might have properly applied the funds raised in resisting a proceeding in parliament prejudicial to the object of the act; yet they were not justified in applying them to defray the expense of obtaining another act of parliament, giving more extensive powers for carrying out the object of the existing act. Att.-Gen. v. Andrews, 2 Mac. & G. 225; 2 Hall & T. 431; 20 L. J., Ch.

467 14 Jur. 905.



Death of Commissioners - Successors appointed.]-By a navigation act the undertakers were authorised to make and maintain such navigation, and from time to time to alter their dams and weirs for that purpose; and to enter and make works upon lands for the purpose of the undertaking; first making satisfaction to the owners as commissioners under the act should direct. By a subsequent clause any person injured by the works was to receive compensation, to be assessed by the commissioners. The commissioners were named in the act, and power given them to appoint successors from time to time. The navigation was made; and, as part of it, a dam across a river was enlarged. Subsequently, all the commissioners died without having appointed successors. The company afterwards raised the dam to the injury of a mill-owner below:-Held, by Wightman, Erle, and Compton, JJ., that the power to alter the dam still existed, even though the millowner should no longer have any means of obtaining compensation, as to which they gave no opinion. Lord Campbell, C. J., dissentiente, and holding that the compensation clause having become incapable of execution by extinction of the commissioners, the powers which the act had conferred upon the company to cause injury to other persons could no longer be exercised. Kennet and Aron Navigation Company v. Witherington, 18 Q. B. 531 ; 21 L. J., Q. B. 419.



Extent of.]-When an act authorizes commissioners to effect certain specified objects, with a clause providing for the payment of comaffected, such authority extends not only against pensation to all persons whose interests may be accountable, but also against the persons whose the persons to whom the commissioners are rights may be interfered with. Holt v. Rochdale (Mayor, &c.), 10 L. R., Eq. 354; 39 L. J., Ch. 761; 23 L. T. 43; 18 W. R. 885.

Improvement commissioners empowered by a local act to levy rates, and do all acts, matters, and things for promoting the health, comfort, and convenience of the inhabitants within their district, and for that purpose to exercise the powers vested in them by their act, will be restrained from applying the rates to the promotion of a bill in parliament to extend their Woods and Forests' Commissioners.] The district and enlarge their powers. Att.-Gen. v. commissioners of Woods and Forests are not, West Hartlepool Improvement Commissioners, under 7 Geo. 4, c. 77, entitled to sue, or liable to


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be sued, for a specific performance of contracts that the commissioners were indebted to B. in entered into with or by them. Nurse v. Sey-moneys for his agreed salary for his services as mour (Lord), 13 Beav. 254. But see 23 & 24 the clerk to the commissioners, and upon their

Vict. c. 34.

retainer, and for other work and labour, of B., as the attorney and solicitor of, and otherwise for, the commissioners, at their request, in and about the business of the commissioners, and for money paid by him for their use and on accounts stated; and that the debt and moneys were a charge commissioners collected under the act; and if they should not have in their hands any such moneys and funds, then the same debts became and were a charge upon a rate and assessment leviable under the act; and the executors demånded of the commissioners to pay the moneys due out of the funds in their hands, or to levy a rate under the act; and alleging a neglect and refusal, and claiming a writ of mandamus commanding the commissioners to pay or assess a rate:-Held, that the declaration was bad, it being consistent with the allegations that to part at least of the claim the commissioners were personally liable, and the remedy by mandamus being therefore inapplicable. Bush v. Beavan, 32 L. J., Ex. 54.

By Clerk in accordance with a Resolution.]By an act, commissioners were appointed for improving a navigation; their powers were to be executed by the majority present at a meeting of not fewer than three. They were not to be per-upon any moneys and funds in the hands of the sonally liable on contracts made, or for damages incurred, in relation to anything done in pursuance of the act, but might be sued in the name of their clerk. The commissioners, at a meeting, held, resolved to accept a tender for executing works in pursuance of the act. Their clerk thereupon drew up a contract according to the tender, and it was afterwards signed by the contractor:-Held, that the contract made in consequence of the resolution was a contract entered into by the commissioners in execution of their office, and that they were liable and might be sued in the name of their clerk for damage negligently done by the contractor to third persons in execution of such contract. Allen v. Hayward, 7 Q. B. 960 4 Railw. Cas. | 104; 15 L. J., Q. B. 99; 10 Jur. 92.

Whether Funds in Hand or not.]-To an Salary of Officer.]-Commissioners, appointed action for salary due from commissioners under under a local act, were empowered to appoint a town improvement act to their clerk, they officers at such salaries as they should think reasonable, and to remove such officers, and appoint others. In some sections of the act the officers were spoken of as employed by the commissioners. The commissioners were empowered to make rates, which were vested in them, and they were directed to apply the moneys which should come to their hands under the act, in paving, lighting, &c., the parish, and carrying the several purposes of the act into execution:Held, that an action did not lie against them by one of their officers for arrears of salary. Bogg v. Pearse, 2 L. M. & P. 21; 10 C. B. 534; 20 L. J., C. P. 99.

Clerk Suing Successor.] Commissioners were appointed to be annually elected for executing a local act. They had power to levy rates. They had power to appoint clerks and other officers, and to pay them salaries out of the money to be raised by the rates. They had power to execute many works. They might sue and be sued by their clerk, and they were exempted from personal liability for any contracts entered into by them as commissioners :-Held, that a clerk, appointed by the commissioners for one year, might maintain an action for his salary against the clerk of the commissioners in a subsequent year. Iall v. Taylor, El., Bl. & Bl. 107; 27 L. J., Q. B. 311; 4 Jur., N. S. 877.

pleaded that they never had at or since the accruing of the debt funds applicable to the payment of it, and that they had applied all the moneys which had come to their hands as such commissioners, except a small sum set apart by them to satisfy certain other claims which had accrued since that of their clerk, and they never had nor were they likely to have any surplus out of which they could pay his claim :—Held, that the plea was bad, and that, a debt being due, the clerk was entitled to judgment, whether it could be enforced by execution or not. Bush v. Martin, 2 H. & C. 311; 33 L. J., Ex. 17; 10 Jur., N. S. 347; 9 L. T. 510; 12 W. R. 204.

Judgment against Clerk-Distress upon Commissioners' Property.]-By an act the commissioners thereby appointed for improving a town were empowered to sue and be sued in the name of their clerk, who was expressly exempted from personal liability in respect of any such action, and they were also empowered to appoint a clerk and other officers, and it was enacted that they should and might, out of the moneys to arise by virtue of the act, pay such officers such salaries as the commissioners should think reasonable. An action was brought by the executors of a former clerk to the commissioners against their present clerk, for arrears of salary due to the deceased, in which judgment was entered up against the defendant and a fi. 'fa. issued, under which the sheriff scized the fireengines and other goods of the commissioners vested in them by the act for public purposes, and a rule nisi having been obtained to set aside the judgment and fi. fa., on the ground that Charge on Rates — Mandamus.]-Com-execution could not be had against different missioners under a local improvement act, were persons from the party sued, and that a manempowered to appoint a clerk and other officers, damus to compel the commissioners to pay the and to pay them reasonable salaries out of the debt out of the rates was the proper remedy :moneys to be collected under the act; and power The court discharged the rule, on the ground was given to levy rates for the purpose of paying that if the commissioners were right they had the salaries of officers. Executors of B. sued other means of redress, as by action of trespass, the commissioners' clerk, the declaration alleging but that, if the rule was made absolute, there

Held, also, that it was within the scope of their authority to employ an attorney; and that he might recover in an action against the clerk of the commissioners in a succeeding year. Ib.


were no means of reviewing the decision of the A lease having been granted in pursuance of the court. Saunders v. Slack, 11 L. T. 484.

Grant of Annuity.]-A grant of an annuity by five commissioners named in a local act in these words: "We five, &c., do grant unto A. an annuity of . out of the rates granted and to arise by virtue of this act," according to the form prescribed in the act, does not raise any personal liability in the grantors, as, on a contract, the act empowers any five to be a quorum. Cane v. Chapman, 1 N. & P. 104; 5 A. & E. 647; 2 H. &. W. 355.


act, during its continuance one of the locks of the
canal became out of repair, but the commissioners,
though they knew of the want of repair, gave no
notice of it to the lessee, though a sufficient time
had elapsed for giving such notice. A barge en-
tered the canal while the lock was so out of
repair, but was prevented from getting out
again by the falling in of the lock :-Held, that
assuming a duty in the commissioners to give
notice to the lessee to repair, they were not
liable in an action by the owner of the barge
for neglecting to give such notice, inasmuch as
the detention of the barge was not a damage
naturally flowing from their neglect.
v. Goe, 4 H. & N. 350; 28 L. J., Ex. 184 ; 5 Jur.,
N. S. 737-Ex. Ch.

Water Company-Control by Commissioners.] By a local act, a waterworks company was missioners, to fix fire-plugs into their mains, and to repair and keep them in proper order, at the cost of the commissioners, in whom the property in the plugs was vested by virtue of their act. In consequence of the cap of one of the fireplugs being broken, a horse placed his foot in the plughole, and was lamed-Held, that the company was, and the commissioners were not, liable for the injury. Bayley v. Wolverhampton Waterworks Company, 30 L. J., Ex. 57.

Bursting of Sewer-Liability for-Reimbursement.]-A. was owner of premises in Cheltenham, which were drained by a sewer which emptied itself into the river Chelt. At the mouth of this sewer there was a flap or pen-bound at the request of town improvement comstock, which prevented any water of the river from flowing up the sewer. In 1852, an act passed for improving Cheltenham, and which directed the commissioners appointed under it to make new sewers. Accordingly the commissioners constructed a new sewer, which passed under the Chelt, near A.'s premises, and removed the flap from the mouth of the old sewer and connected it with the new sewer. The premises were twelve feet below the summit level of the new sewer. In 1855, there was a heavy storm of rain, by which the Chelt was flooded, and in consequence the new sewer burst, and the water of the river flowed into it. The commissioners erected a tank round the hole, but before the repair of the sewer was completed, another extraordinary flood took place, by which the tank was washed away and the water of the river rushed into the sewer and forced the sewage matter and water into the premises, thereby causing great damage. The local act incorporated the 144th section of the Public Health Act of 1848, providing that "full compensation 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 :"-Held, first, that the commissioners were liable to an action for negligence, and were entitled to reimburse themselves out of the rates. Ruck v. Williams, provement act, incorporating the Towns Clauses 3 H. & N. 308; 27 L. J., Ex. 357. Act, 10 & 11 Vict. c. 34, commissioners for carryHeld, secondly, that they were guilty of negli-ing the act into execution were incorporated, gence in not putting up a flap or pen-stock at the and were empowered to levy rates to a limited mouth of the old sewer. Ib.

By Lessees-Liability of Lessors to give Notice.]An act enabling commissioners to grant a lease of a canal contained a clause as follows:-In case the lessees during the term should permit the navigation to be out of repair, the commissioners are authorized and required to give notice thereof to such lessees, and in such notice to specify the particular repairs which ought to be done, and the commissioners may require that such repairs should be commenced, proceeded with, and finished within reasonable periods, to be named by them, and in case the lessees shall neglect to commence such repairs, it shall be lawful for the commissioners, and they are thereby authorized, to take possession of the tolls and to cause such repairs to be done under their own direction, and to pay the necessary expenses of making such repairs out of the tolls.

Footways-Omission to Fence.]-By 10 & 11 Vict. c. 34, s. 52, commissioners shall from time to time place such fences and posts on the side of the footways of the streets under their management, as may be needed for the protection of passengers on such footways :-Held, that under this section no discretion was vested in commissioners as to the fencing of footways under their government, but that an action lay against them for injuries sustained by a passenger, by reason of their omission to fence, although they acted gratuitously, and it was not shewn that they had, or were empowered to raise, funds to meet damages which might be recovered against them. Ohrby v. Ryde Commissioners, 5 B. & S. 743; 33 L. J., Q. B. 296; 10 Jur., N. S. 1048; 12 W. R. 1079. Omission to Repair.]-By a local im

amount, and to be applied to specified purposes. By 10 & 11 Vict. c. 34, s. 47, the management of streets is vested in the commissioners; by sect. 48 they are made surveyors of highways; and by sect. 49 they are to be guilty of a misdemeanor for neglecting to repair any public highway within the limits of the special act, and liable to be indicted in the same manner as the inhabitants of a parish:-Held, that the commissioners were liable to an action for an injury to a person caused by a footway within the limits of the local act being out of repair; and that it was not necessary to aver in the declaration that they had funds applicable to the repair of the footway. Hartnall v. Ryde Commissioners, 4 B. & S. 361; 33 L. J., Q. B. 39; 10 Jur., N. S. 257; 8 L. T. 574; 11 W. R. 963.

Default of Servants or Agents.] - Trustees appointed by statute for public purposes, with

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