SCOTT v. THE MAYOR, ALDERMEN AND CITIZENS

OF THE CITY OF MANCHESTER (1).

(2 H. & N. 204-210; S. C. 26 L. J. Ex. 406; 3 Jur. N. S. 590; 5 W. R. 598.) 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 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. Plea: That the grievances were bona 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: Held, by the Court of Exchequer Chamber (affirming the judgment of the Court of Exchequer), that the plea was no answer to the action.

THIS was a proceeding in error on the judgment of the Court of Exchequer for the plaintiff. The pleadings and judgment of the COURT below are reported 1 H. & N. 59 (2).

Hugh Hill (with whom were 'Monk and Milward) argued for
the defendants (3):

The defendants are mere trustees for public purposes, acting in the execution of a public Act of *Parliament (4). Now, it is a

(1) Mersey Docks and Harbour Trustees v. Gibbs (1864) L. R. 1 H. L. 93, 115, 35 L. J. Ex. 225.

(2) 108 R. R. 454.

(3) Before Cockburn, Ch. J., Wightman, J., Erle, J., Crompton, J., Crowder, J., and Willes, J.

(4) By 14 & 15 Vict. c. cxix., s. 6,– "It shall be lawful for the council from time to time to construct and maintain such gasworks and apparatus, and such buildings with approaches thereto, &c. and to supply gas upon such terms as shall be agreed upon between them and the persons supplied therewith, and to sell and dispose of the coke and other residuum arising from the materials used in the manufacture of gas, in such manner as the council may think proper."

Sect. 13. "Whereas, by 7 & 8 Vict. c. xli., provisions were enacted, directing the application of monies to be received by the council from the gasworks in paying off the mortgages, &c., and certain expenses connected with their gasworks, and as to the residue of such monies in and towards the improvement of the township of Manchester

and it is expedient that the council should be authorized to apply, for a limited period, certain portions of such residue in reduction of the expense to the inhabitants of supplying the borough

with water; be it enacted, that it shall
be lawful for the council from time to
time, during the period of ten years
next after the passing of this Act, to
appropriate and apply such portion of
the said residue as they may think fit,
not exceeding one moiety thereof, in
or towards payment of the annual
expenses to be incurred in supplying
the inhabitants of the borough with
water, and in reduction of the water
rates authorized to be levied by 'The
Manchester Corporation Waterworks
Act, 1847;' and subject to such appro-
priation and application, all the pro-
visions contained in the 141st, 142nd
and 143rd sections of the 7 & 8 Vict.
c. xli., shall, notwithstanding the
passing of this Act, continue in full
force and effect; provided that any
agreement already entered into and
now subsisting in reference to the
appropriation of gas profits or any
part thereof in or for the benefit of
any township within the borough shall,
at the expiration of the said ten years,
be as binding and valid in all respects
as the same now is or was at the time
of the passing of this Act."

The 7 & 8 Vict. c. xli., s. 141, is as
follows: "From and after the passing
of this Act, all sums of money to be
received by the council for gas, &c.,
and profit to arise or be made from
carrying on the said works, &c., shall

1857.

May 13.

[204]

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SCOTT

ፖ.

OF MAN

CHESTER.

[*206 ]

[ *207 ]

In

general rule, that trustees or Commissioners for carrying into MAYOR, &c. execution a public Act of Parliament, not acting for their personal advantage, but in performance of a public duty, are not responsible for the *consequences of acts done within the scope of their authority. To render them liable, it must be shown that they acted in excess of their authority, or in abuse thereof, by acting arbitrarily, wantonly, or oppressively in the mode of carrying the Act into execution; and if they do not personally interfere, and employ competent persons in executing the powers of the Act, they are not liable for the negligence of those persons. The 14 & 15 Vict. c. cxix., s. 13, directs that such portion of the residue of the profits from the gasworks as the council shall think fit, not exceeding one moiety, may be applied by them towards payment of the annual expenses to be incurred in supplying the inhabitants of the borough with water and in reduction of the water rates authorized to be levied by "The Manchester Corporation Waterworks Act, 1847." The 7 & 8 Vict. c. xli., s. 141, also relates to the application of monies to be received *by the council for gas,-they are to be applied for keeping up the works, making good any damage, paying interest on monies borrowed, and the like,-and the surplus is to be applied by the council in and towards the improvement of the town of Manchester in such manner as the council shall think proper. the case of Sutton v. Clarke (1), where the defendants were trustees under a Turnpike Act: GIBBS, Ch. J., said,-" The trustees, as they derived no benefit from their office, are not answerable for any damage which may have accrued in consequence of any act done by them within the limits of their authority, provided be applied in the manner following (that is to say); in the first place in paying and discharging the costs, charges, and expenses of keeping up and carrying on the said works, and of making good all damage and injury [*206, n. ] occasioned by laying down any mains, pipes, or other apparatus, &c.; and in the next place in paying all the interest which may be due on any monies borrowed under the recited Acts, or any of them, and on any mortgages, &c., or to pay off the said last-mentioned monies; and in the next place in paying, &c., every annuity which shall be granted, by the council, under the authority of this Act, &c.; and in the next place in setting aside or appropriating such a sum annually as, &c., a sinking fund, for the liquidation of the said principal monies in the manner hereinafter directed; and in the next place in paying all the interest which may be due on any mortgages granted under

this Act, for securing monies borrowed to pay off the sums borrowed under the said recited Act, 1 & 2 Geo. IV., or for the purpose of effecting the alterations and improvements contemplated by this Act; and in the next place in paying every annuity, &c.; and in the next place in setting aside or appropriating a sum annually as a sinking fund, for the liquidation of the said monies, &c.; and after making the several payments and appropriations hereinbefore directed, the surplus of the said gas rents and profits shall from time to time be applied by the council in and towards the improvement of the township of Manchester, in such manner as the council or the committee, &c., shall think proper, and without being subject to any restrictions in the said Acts, or any of them, contained as to the amount of the sum to be expended in any of such improvements."

(1) 16 R. R. 563 (1 Marsh. 429).

SCOTT

OF MANCHESTER.

they used their best skill and diligence and obtained the best advice that was to be procured." In The Governor and Com- MAYOR, &C. pany of the British Cast Plate Manufacturers v. Meredith (1), it was held that where the acts of Commissioners appointed by a Paving Act occasioned damage to an individual without any excess of jurisdiction on their part, the Commissioners were not liable to an action.

(WIGHTMAN, J.: Does the plea raise this point? Are persons who are guilty of negligence, misconduct and mismanagement "competent persons"? This is not a case where a thing done. strictly in accordance with the directions of the Act produced the mischief.

ERLE, J. It was an accident which happened while the defendants were acting in the execution of the powers of the Act.) Boulton v. Crowther (2) shows that turnpike trustees are not liable to an action for a consequential injury resulting from an act which they are authorized to do. Hall v. Smith (3) goes the full length of this case; it was there held that clerks of Commissioners entrusted with the conduct of public works were not liable in damages for an injury occasioned by the negligence of *artificers employed under their authority.

(WIGHTMAN, J.: In that case the work was done by a contractor.)

The judgment did not proceed on that ground. In Duncan v.
Findlater (4), in which all these cases were commented on, Lord
COTTENHAM quoted the judgment of Lord WYNFORD in Hall v.
Smith, that "if Commissioners under an Act of Parliament order
something to be done which is not within the scope of their
authority, or are themselves guilty of negligence in doing that
which they are impowered to do, they render themselves liable
to an action; but they are not answerable for the misconduct of
such as they are obliged to employ." He said that this was
the true distinction, and that the law thus laid down had ever
since been recognised in England. Here, it appears that the
corporation of Manchester were carrying out the purposes of the
Act; they were not guilty of negligence themselves, and had
employed skilled persons to do the work; therefore they are not
responsible.

Atherton (with whom was Spinks), for the plaintiff:
Powers were conferred upon the defendants to lay down gas

(1) 4 T. R. 794.

(2) 26 R. R. 528 (2 B. & C. 703).

(3) 2 Bing. 156.

(4) 49 R. R. 255 (6 Cl. & Fin. 894).

[ *208 ]

SCOTT

v.

MAYOR, &C.
OF MAN-
CHESTER,

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[ *210 ]

pipes. They did not think proper to employ a contractor, but chose to undertake the execution of the works themselves. It may be that the cases cited decide that where an individual is clothed with an authority and a duty, so that he cannot be said to be a volunteer, he is not personally responsible for injury resulting from acts which he is compelled to do. Trustees of a turnpike road have a duty cast upon them, viz. to employ persons to repair the road: if they do so bonâ fide, they fulfil their duty; and not having the control over any fund, out of which to reimburse themselves, are not responsible for injuries occasioned *by the negligence of the persons employed by them. Here, however, there is a fund out of which the council may make compensation to persons injured. The making of gas is an adventure carried on for purposes of profit. Before the passing of 6 & 7 Vict. c. xvii. and 7 & 8 Vict. c. xli., there existed a Gas Company, incorporated under a local Act, the property and powers of which were by those Acts vested in the council. By the 14 & 15 Vict. c. cxix., s. 6, the council have power to construct and maintain the gasworks, and to supply gas and to sell and dispose of the coke. By the 13th section of that Act, and by 7 & 8 Vict. c. xli., s. 141, the surplus profits of the gas are to go in reduction of the water rates and otherwise towards the improvement of the township of Manchester. The 14 & 15 Vict. c. cxix., s. 6, shows that the works are carried on by the corporation voluntarily. If they were undersold by another Company, they would not be bound to carry on the works.

Hugh Hill, in reply:

If the corporation are liable to make compensation to the plaintiff, it must be under the 141st section of the 7 & 8 Vict. c. xli. No action can be maintained, because a particular remedy is given by the Act: The Governor and Company of the British Cast Plate Manufacturers v. Meredith (1).

(CROMPTON, J.: That clause only applies where damage results. from an act expressly authorized by the statute.)

COCKBURN, Ch. J.:

This case is distinguishable from those cited and relied on by Mr. Hill. Here, though the individuals composing the corporation acted gratuitously, yet the corporation and the township derive a profit from the *carrying on of the works. We are all of opinion that the judgment of the COURT below must be affirmed.

(1) 4 T. R. 794.

Judgment affirmed.

GRAVES v. LEGG AND OTHERS.

(2 H. & N. 210-213; S. C. 26 L. J. Ex. 316; 3 Jur. N. S. 519; 29 L. T. O. S. 145; 5 W. R. 597.)

The defendants, London merchants, employed a broker at Liverpool to purchase some wool. The broker negociated a sale by the plaintiff to the defendants of certain bales deliverable at Odessa, "the names of the vessels to be declared as soon as the wools were shipped." In this transaction the broker acted for both plaintiff and defendants. By the custom of Liverpool, where a contract contained a stipulation that notice of an event should be given by the seller to the buyer, it was usual for the seller to give the notice to the broker who communicated it to the buyer: Held, in the Exchequer Chamber, affirming the decision of the Court of Exchequer, that the defendants were bound by such a usage, and therefore that a notice by the plaintiff to the broker of the names of the vessels on which the wools were shipped was a performance of that stipulation, although the broker omitted to communicate them to the defendants.

THIS was an appeal by the defendants against the decision of the Court of Exchequer in discharging a rule to enter a verdict for the defendants on a point reserved at the trial. The case set out the pleadings (which fully appear in the reports sub. nom. Greaves v. Legg, 96 R. R. 931 (9 Ex. 709), 105 R. R. 702 (11 Ex. 642)), and a transcript of the learned Judge's notes of the trial. The effect of the evidence was, that according to the usage of Liverpool, where there is one broker between seller and buyer, and by the terms of the contract, notice of any event is to be given by the seller to the buyer; the usage is for the seller to give it to the broker, who forwards it to the buyer.

Hugh Hill (Kemplay with him), argued for the defen-
dants (1):

The

The usage of merchants at Liverpool is not *binding on the defendants, who are London merchants. The brokers were not the agents of the defendants for the purpose of receiving the notice for them. The wool was to be laid down either at Liverpool, Hull, or London, and the object of the notice was that the purchasers might be made aware of the vessel on which the wool was shipped and to what place it was coming. It was a stipulation for their benefit: Graves v. Legg (2). brokers were not, by force of their employment as brokers, agents to receive the notice. They were specially employed to make the contract, and, after it was made, their authority and power ceased. In Story on Agency, s. 28, it is said,"The true definition of a broker seems to be, that he is an agent, employed to make bargains and contracts between other persons, in matters of trade, commerce, or navigation, for a compensation, commonly called brokerage.' In Baring v.

(1) Before Cockburn, Ch. J., Coleridge, J., Wightman, J., Cresswell, J., Erle, J., Williams, J., Crompton, J.,

R.R.-VOL. CXV.

and Crowder, J.

(2) 96 R. R. 931, 937 (9 Ex. 709, 717).

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1857.

May 12.

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