1907. Tozeland v. Union. out without negligence, and their liability would not be affected. Brennan v. Limerick Union (1878) 2 L. R. Ir. 42, and Dunbar v. Ardee Union, 1897, 2 Ir. R. 76, are distinguishable. They were both cases of omission, and in each case the guardians, acting in their administrative capacity, failed to provide something which it was their duty to provide. In Levingston v. Lurgan Union (1868) Ir. R. 2 C. L. 202, which is an authority that an action will lie against guardians quá guardians, and also in Southampton Bridge Co. v. Southampton Local Board (1858) 8 E. & B. 801; 28 L. J. Q. B. 41, the defendants were held liable as owners of property for wrongful acts of commission. The principle of Levingston v. Lurgan Union was applied in Clements v. Tyrone County Council, 1905, 2 Ir. R. 415. There is no difference in principle between wrongdoing and negligence. This is an ordinary common law action against guardians for negligence by a pauper. He is under no disability in that respect, the only statutory disability to which he is subject being that he is disqualified from voting: see 2 Will. IV. c. 45, s 36, re-enacted in the Representation of the People Act, 1867 (30 & 31 Vict. c. 102), S. 40. The onus, therefore, is on the guardians to show that their position as guardians protects them from liability to be sued. They have failed to discharge this onus, and consequently they are liable. AVORY, K.C., in reply. Cur. adv. vult. Feb. 16. SIR GORELL BARNES P., after stating shortly the facts, continued: Two points were taken in the Divisional Court, and the same two points were argued on this appeal. The first point taken by counsel on behalf of the defendants was that it was a case to which the doctrine of common employment ought to be applied. I do not propose to consider that point at any length, because upon that I fully agree with the judgments of the learned Judges in the Court below and with the reasoning in the judgment of the Lord Chief Justice, and it would be waste of time to re-state afresh the considerations which have led me to the conclusion at which I have arrived upon it. The second point is one of much greater difficulty. It was that, apart from the application of the doctrine of common employment, the plaintiff, in the circumstances of the case, had no right of action against the defendants. That that is a difficult question appears from what was said in the course of the judgments in the Court below, and there is little doubt that the learned Judges came to the conclusion that they did with very great hesitation. The Lord Chief Justice says at p. 546 of the Law Reports (1906, 1 K. B.): "These facts bring the case, in my opinion, within the class of case in which the guardians, having 1907. I West Ham work to do as guardians, do it under circumstances in which a person to whom they owe a duty would have a right of action against them if Tozeland v. injured through the negligence of a servant acting on their behalf. have therefore come, though with considerable hesitation, to the conclusion that this action can be maintained." Ridley J., in agreeing with the view taken by the Lord Chief Justice, said, at p. 548, "The present case is more akin to Levingston v. Lurgan Guardians (1868) Ir. R. 2 C. L. 202, in which an action was held to be maintainable against guardians for making a sewer and discharging sewage from the workhouse into a stream to the use of which the plaintiff was entitled." Darling. J. said, at p. 550: "In my opinion, this case is quite distinguishable from Brennan v. Limerick Union (1878) 2 L. R. Ir. 42, and has a much greater resemblance to Levingston v. Lurgan Union, in which the action was held to be maintainable. With considerable hesitation, therefore, I think that this action will lie against the guardians." It is reasonably clear from these judgments that the point was thought to be one of very considerable doubt, and I have certainly myself felt some difficulty in considering it. We have, however, one advantage which the Court below did not have. Counsel for the defendants, since the former argument, have discovered a case before the Irish Court of Appeal, which, although not precisely the same as this, has certain features about it which make it a very valuable authority in arriving at a conclusion in this case. That was the case of Dunbar v. Ardee Union, 1897, 2 Ir. R. 76, to which I shall refer presently. To my mind, the question to be determined does not depend upon a mere consideration of which of two classes of cases is the more applicable to the present, but depends upon a careful consideration of the position of the board of guardians who are the defendants in this case. The exceptional character of a case of this kind is pointed out in a passage in Beven on Negligence in Law, Vol. I., p. 288, which runs thus: "A case, exceptional in its nature, but somewhat analogous in its incidents to the relations existing between the different officers of Government departments, is found where the arrangement and control over matters of public concern is given by statute to one body, while the power of carrying them out is assigned to another; as in the case of the jurisdiction exercised by the Local Government Board over Poor Law guardians." Therefore, in order to arrive at a conclusion in this case, it is necessary to consider what is the statutory position of the defendants, so far as regards persons in the position of the plaintiff. That depends upon a careful examination of the various Poor Law Acts, of which there are a great number. The most important Act is the Poor Law Amendment Act, 1834 (4 & 5 Will. IV. c. 76); but before considering that Art, I wish to refer to the Poor Relief Act, 1815 1907. Tozeland v. Union. (55 Geo. III. c. 137), s. 5, which I think has some bearing on the point. That section provides: "And whereas persons maintained in public workhouses sometimes refuse to work, or are guilty of drunkenness and other misbehaviour, and by the laws in being no sufficient punishment is provided for such offences: Be it therefore enacted, that in case any person or persons maintained in any public workhouse or workhouses established for the relief, maintenance and employment of the poor, shall refuse to work at any work, occupation or employment, suited to his, her or their age, strength and capacity "-then there are other offences mentioned-"every such person or persons, being thereof lawfully convicted before any justice or justices of the peace, shall thereupon by such justice or justices of the peace be committed to the common gaol or house of correction, there to remain without bail or mainprize for any period of time not exceeding twenty-one days, and during such time to be kept to hard labour." I now pass on to the Act of 1834. Section 15 provides that "From and after the passing of this Act the administration of relief to the poor throughout England and Wales, according to the existing laws, or such laws as shall be in force at the time being, shall be subject to the direction and control of the said Commissioners; "-now the Local Government Board-“ and for executing the powers given to them by this Act the said Commismissioners shall and are thereby authorised and required, from time to time as they shall see occasion, to make and issue all such rules, orders, and regulations for the management of the poor, for the government of workhouses, . . . and for the guidance and control of all guardians, vestries, and parish officers, so far as relates to the management or relief of the poor, and the keeping, examining, auditing, and allowing of accounts, and making and entering into contracts in all matters relating to such management or relief, or to any expenditure for the relief of the poor, and for carrying this Act into execution in all other respects, as they shall think proper." Then they may suspend or alter the rules. By section 23 the Commissioners are empowered to order workhouses to be built, hired, altered, or enlarged with the consent in writing of a majority of the guardians of the union; and then there are powers to levy rates for that purpose. By section 25 the Commissioners are empowered to order workhouses to be altered or enlarged without consent. Section 26 provides that parishes may be united by the Commissioners. Section 32 empowers the Commissioners to dissolve, add to, or take from any union. Section 38 deals with the constitution and election of boards of guardians for unions; and section 39 makes the like provision for single parishes. Section 42 is a very material section. It provides that "the said Commissioners may and are hereby authorised, by writing under their hands and seal, Union. 1907. to make rules, orders, and regulations, to be observed and enforced at every workhouse already established by virtue of the said recited Act Tozeland v. made and passed in the twenty-second year of the reign of his said late West Ham Majesty King George the Third, intituled 'An Act for the better Relief and Employment of the Poor,' or any general or local Act of Parliament, or hereafter to be established by virtue of such Acts or of any of them, or of this or any other Act of Parliament relating to the relief of the poor, for the government thereof, and the nature and amount of the relief to be given to and the labour to be exacted from the persons relieved, and the preservation therein of good order, and from time to time to suspend, alter, vary, amend, or rescind the same, and make any new or other rules, orders, and regulations"; and the rules affecting more than one union are to be deemed general rules. Section 46 is also important. The marginal note shows sufficiently the point to which I wish to refer: Commissioners may direct overseers and guardians to appoint paid officers for parishes or unions; and fix their duties, and the mode of appointment and dismissal, and the security; and regulate their salaries." Section 93 imposes a penalty on masters of workhouses allowing the use of spirituous liquors, or ill-treating poor persons, or misconducting themselves. The portion of the section dealing with misbehaviour or misconduct is as follows: "or shall in any way abuse or ill-treat, or be guilty of any other misbehaviour, or otherwise misconduct himself towards or with respect to any poor person in such workhouse; every such master or officer of a workhouse so offending shall for every such offence, upon the complaint of the overseers or guardians of the parish or union to which such workhouse shall belong, or of any such poor person, and upon conviction of such offence before any two justices, forfeit and pay such sum of money, not being more than twenty pounds, as such justices may direct." Then power is given to the justices to order salaries to be stopped and applied towards the payment of penalties. Section 95 imposes penalties upon overseers and other officers disobeying the guardians; and section 98 imposes a penalty upon persons wilfully disobeying any of the rules, orders, or regulations. I think those are all the sections to which I need refer, except the interpretation clause (section 109), which provides that "the word 'officer' shall be construed to extend to any clergyman, schoolmaster, person duly licensed to practise as a medical man, vestry clerk, treasurer, collector, assistant overseer, governor, master or mistress of a workhouse, or any other person who shall be employed in any parish or union in carrying this Act or the laws for the relief of the poor into execution, and whether performing one or more of the above-mentioned functions." Then the Poor Law Amendment Act, 1842 (5 & 6 Vict. c. 57), s. 5, is as follows: "It shall be lawful 1907. Tozeland z. Union. for the guardians of any parish or union, subject always to the powers of the Poor Law Commissioners "-now the Local Government Board -"to prescribe a task of work to be done by any person relieved in any workhouse, in return for the food and lodging afforded to such person." Then the section provides that it shall not be lawful to detain such person against his will for more than a certain time, and that "if any such person, while in such workhouse, refuse or neglect to perform such task of work suited to his age, strength, and capacity," and do certain other things which are not material, “he shall be deemed an idle and disorderly person within the meaning of an Act passed in the fifth year of the reign of King George the Fourth, intituled. 'An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in that part of Great Britain called England.' The next Act to which I wish to refer is the Poor Law Amendment Act. 1866 (29 & 30 Vict. c. 113), s. 8. That merely repeals part of section 25 of the Poor Law Amendment Act, 1834, and substitutes another provision, and it contains certain provisions relating to the enlargement, alteration, or improvement by the guardians of their workhouse, or the premises, drainage, or other appurtenances belonging thereto. Then there is the Pauper Inmates Discharge and Regulation Act. 1871 (34 & 35 Vict. c. 108), ss. 6 and 7. Section 6 provides that "Every casual pauper shall, subject to the provisions of this Act, be admitted, dieted, and set to work and discharged in such manner and shall be subject to such regulations as the Poor Law Board shall prescribe, and the work so prescribed shall supersede any task of work prescribed under section five of the fifth and sixth Victoria, chapter fifty-seven." Section 7 says, "Any pauper who "-amongst other things-"refuses or neglects, whilst an inmate of any casual ward, workhouse, or asylum to do the work or observe the regulations prescribed; . . . shall be deemed an idle and disorderly person within the meaning of section three of the fifth George the Fourth, chapter eighty-three." Those are all the sections to which I need refer to give a general idea of the operation of these statutes; but in addition to the statutes themselves there are certain general regulations made by the Local Government Board and their predecessors which it is desirable shortly to mention. First, there is the General Order (Consolidated) of July 24, 1847, which provides by Article 153 what officers may be appointed, and a General Order of August 19, 1867, by Article 1 of which it was ordered that "the guardians may employ such persons as they shall deem requisite in or about the workhouse or workhouse premises, or on the land occupied for the employment of the pauper inmates of the workhouse or otherwise in or about the relief of the indoor poor, upon such terms and conditions as shall appear to them to be suitable." Article 172 of |