the defenders, to render them personally liable; and, therefore, the de- 5. Trustees. fences of those trustees against whom nothing was alleged and proved, except the mere fact of presence at meetings, were sustained; but as to those trustees who signed contracts, they were held personally liable for a proportion of the expense of such contracts as they signed; and thus judgment was affirmed in Dom. Proc. And Lord Eldon said—“That when trustees confined themselves to the act of Parliament, and the application of the parliamentary funds, they were not personally liable; but that this also rested on strong principle, that, as the trustees must know whether there are funds to carry on the work, when they contract with those who do not know, they shall be considered as representing that there are funds, and shall be bound to provide funds to pay the contractors." (Higgins v. Levingstone and others, 4 Dowl. P. C. 341). (See Burrell v. Jones, 3 B. & Ald. 47; Iveson v. Conington, 2 D. & R. 307; 1 B. & C. 160, S. C.; Gow's C. N. P. 117; Morton v. Herron, R. &M. C. N. P. 229; Cane v. Chapman, 5 Ad. & E. 647). Decisions as to Personal Liability of Trustees for Torts.]—If the trustees, in the performance of any act which they are empowered to do, behave arbitrarily, wantonly, or oppressively, or are even so careless and negligent as to cause a consequential damage, which might well have been avoided; it seems, that in such case they will be personally liable to an action for the injury incurred. (See Jones v. Bird, 5 B. & Ald. 837; 1 D. & R. 497, S. C.; Moxon v. Leader, 2 Sir W. Bl. 924; Humphreys v. Mears, 1 M. & R. 187). In general, however, no action lies against commissioners (or their servants) appointed under an act of Parliament to effectuate its proviions, unless they exceed their jurisdiction, or do not act carefully, and learly not where the act gives another remedy. (Governor and Comany of Cast Plate Manufacturers v. Meredith, 4 T. R. 794). And if a statute enable trustees to do an act and does not give comensation, they are not liable for a consequential injury resulting to an ndividual from the act done in the pursuance of the statute. Therefore, where trustecs under the General Turnpike Act, by improving the course fa public road, had effected a consequential injury to a private indiidual, whose estate abutted on the road; it was held, that they were ot liable to an action, it appearing that they had not exceeded the uthority given them by the statute. (Bolton v. Crowther, 2 B. & C. 03; 4 D. & R. 195, S. C.) By a turnpike act, trustees were appointed with authority to cut trains in lands adjoining the roads, making reasonable satisfaction to he owners thereof. By the same act, it was provided that all actions or any thing done in pursuance of the act should be brought within six nonths after the doing the thing complained of. A drain was cut by n order signed by a competent number of trustees, and according to he plan of a surveyor, in land adjoining the plaintiff's, by which the atter was overflowed. An action was brought against one of the trusees only, more than six months after the act done, and the first injury sustained, but within six months after a subsequent injury accrued-it was held, 1st, that the action, if it could have been supported at all, was well brought against the defendant only; but 2ndly, that the trustees, having acted to the best of their skill, and with the best advice, were not answerable for the damage which had accrued. (Sutton v. Clarke, 1 Marsh. 429; 6 Taunt. 29, S. C. And see Lloyd v. Wigney, 6 Bing. 489; 4 M. & P. 222, S. C.; ante, 615, and post, Sect. XVI.) The trustees of a public road, who were empowered and required by act of Parliament to place lamps along the road, if they should think necessary, and to make contracts for the cleansing of the road, and to take a night toll for the purpose of enabling them to light and watch the same, were held not liable in an action upon the case, for an injury suffered by an individual in crossing the road at night, by falling over a Decisions as to personal liability of trustees for torts. 5. Trustees, heap of scrapings left on the road side, after cleansing the road with any lights. Et per Lord Ellenborough-"If, by omitting to put lamps where it is necessary, the trustees are guilty of a breach of puik duty, they may be indicted; but to hold, that every trustee of a re is liable in damages for such an accident as this would, I conceive, going further than any case warrants." (Harris and Wife v. Boir, 4 M. & Sel. 27). Trustees may sue and be sued in It seems also, that trustees of a public road, who, in furtherance the trusts thereof, employ others under them, are not to be consider i in the same light as private individuals; and, therefore, are not answer. able for their misconduct, (Id.; Duncan v. Finlater, 6 Cl. & Fin. 24 where it was also held, that the funds raised by the act under which tr trustees are acting cannot be charged with compensation for an in an occasioned by such misconduct), unless, perhaps, where they perso interfere in the management of the works; and a slight interfer may not suffice. (Humphreys v. Mears, 1 M. & R. 187). And whe the trustees of a turnpike road who were employed to make contras for the cleansing of the road, engaged with a contractor, and the laboo~ employed by him did the work so negligently as to injure a passenza the trustees were held not to be liable, since the labourer could * be considered as in their employment. No duty was imposed up trustees to see that the labourers did not commit any nuisance. ( But although the trustees themselves may not be liable to make pensation for damage occasioned by acts ordered by them to be u which are within the scope of their authority, if they proceed sufficient caution; yet it should seem, from Hall v. Smith, (2 Bing, 118 9 Moore, 226, S. C.), that the person who is appointed to execute acts, is liable for any negligence in their performance, post, 673. 10. ACTIONS BY AND AGAINST TRUSTEES. By 3 Geo. IV. c. 126, s. 74, "The trustees and commission name of clerk, &c. every turnpike road may sue and be sued in the name or names of one of such trustees or commissioners, or of their clerk or clerks f time being; and that no action or suit to be brought or commence or against any trustees or commissioners of any turnpike road, by of this or any other act or acts of Parliament, in the name ri any one of such trustees or commissioners, or their clerk or clerks, a abate or be discontinued by the death or removal of such traserar missioner, clerk, or clerks, or any of them, or by the act of such commissioner, clerk or clerks, or any of them, without the const** said trustees or commissioners; but that any one of such tre commissioners, or the clerk or clerks for the time being to the s tees or commissioners, shall always be deemed to be the plain plaintiffs, defendant or defendants, (as the case may be), in every action or suit: Provided always, that every such trustee, commis clerk or clerks, shall be reimbursed and paid out of the monies ing to the turnpike road, for which he or they shall act, all such charges, and expenses as he or they shall be put unto, or chargeable with, or liable to, by reason of his or their being so plaintiff or plaintiffs, defendant or defendants." Indemnity to. For torts. On contracts. Evidence. The 60th section (ante, 657) gives the trustees, &c., power to sac injuries done to the property thereby vested in them. The 78th section of the 4 Geo. IV. c. 95, relates to suits by tra on contracts for amending, &c., the roads. (See post, 706). By 3 Geo. IV. c. 126, s. 134, in an action by or against a tr or commissioner, evidence of such trustee or commissioner havingas such, together with the act of Parliament by which he was appo" | or the order, or a copy of the order, for his appointment or electi case he was appointed or elected by the trustees or commissioners, be sufficient proof of his being a trustee or commissioner. (See the actment and others as to witnesses and evidence, post, Sect. XVII. p. and Doe d. Baggeley v. Hares, 4 B. & Adol. 435; 1 Nev. & M. 237, 5. Trustees. S. C., post, 763). Limitation and notice of action. Decisions as to the As to the limitation and notice of actions, &c., see post, Sect. XVI. A. agreed in writing to pay the rent of certain tolls, which he had ired, "to the treasurer of the commissioners;" it was held, that no parties to actions. action for rent could be maintained in the name of the treasurer. (Pi- &c. cott v. Thompson, 3 B. & P. 147; and see Hellings v. Pratt, 6 Jurist, 914, post, 737). A local act directed, that if any person had cause of action against the trustees, he should sue the treasurer; it was decided, that such proceeding was substituted only for such action as might be maintained against the whole body of trustees, and that an action would not lie against him for the act of five trustees, though they formed a quorum. (Everett v. Cook, 7 Taunt. 1). But in another case, where one trustee was sued for in act done in pursuance of an order signed by a competent number of rustees, the action was held to lie. (Sutton v. Clarke, 1 Marsh. 429; › Taunt. 29, S. C.; and see Boulton v. Crowther, 2 B. & Cres. 703; Cane . Chapman, 5 Ad. & E. 647, post, 679). A paving act empowered commissioners to sue in the name of their lerk for any sums due from certain persons therein named, or any other person or persons, payable by virtue of that act; and enacted, that if any treasurer, collector, officer, or other person appointed by the commissioners to collect money, should become bankrupt with money of the commissioners in his hands, his assignees should pay the money in full, n preference to all other debts except debts due to the King: it was eld, that the commissioners might sue, in the name of their clerk, the ssignees of their banker, to recover the amount of their money in his ands at the time of his bankruptcy, though he had received from the ommissioners no written appointment as their banker. (Frost v. Bolnd, 8 D. & R. 384; 5 B. & C. 611, S. C.) The plaintiff, a clerk to the commissioners for putting into execution local paving act, under which the commissioners were authorized to e by their clerk, drew up a contract for paving, of which contract the efendant, the contractor, was, by agreement, to pay the expense. The efendant offered to execute the contract, but refused to pay the plainf's charges, as unreasonable: the plaintiff refused to allow the contract be executed until his charges were paid: and it was held that he could st sue as clerk to the commissioners for these charges. (Curling v. ohnson, 10 Bingh. 89). By a memorandum of agreement between the trustees of a turnpikeoad and N., the trustees agreed to let, and N. to take, the tolls for a ear, at a certain rent; and N. as renter of the tolls, and D. as his irety, severally promised the trustees that N. should pay the rent at e appointed times, and perform certain conditions annexed to the greement:-Held, that the contract was several, and not joint, and that le trustees could not sue the parties jointly for arrears of the rent. Lee v. Nixon, 1 Adol. & Ell. 201; 3 Nev. & M. 441, S. C.) By the Harwich Paving Act, the commissioners "may sue or be sued Decision as to the or or concerning any thing which shall be done by virtue or in pursuance form of action. f the act, in the name of their clerk," and are empowered to raise honey by rates. Any person may advance money to them, for the purses of the act, in purchase of annuities, which shall be payable and aid by the commissioners out of the money arising from the rates. The act prescribes the form of the grant; which purports that, by virtue of the act, five of the commissioners, in consideration of the sum advanced to them by the party, may grant to him an annuity out of the rates to arise by virtue of the act. A declaration, in case, against the clerk ated, that the plaintiff advanced a sum to the commissioners for the purchase of an annuity; whereupon, by a grant made according to the rm of the statute, five commissioners, by virtue of the act, in con 6. Officers. Execution cannot issue against clerk. Mode of obtaining damages recovered in action against clerk. sideration of the advance, granted to the plaintiff an annuity out of the rates; that a quarterly payment of the annuity became due; that the commissioners then held in their hands, out of the rates, money more than enough to satisfy it; whereupon it became their duty to pay it: and that they had not paid it. It did not appear by the pleadings the there were any annuitants besides plaintiff :-Held (amonst other things that case was maintainable against the clerk for this breach of duty the commissioners. (Cane v. Chapman, 5 Ad. & E. 647; and see Mis v. Bough, 7 Jur. 81-Q. B.) Where the trustees under a road act were sued in the name of the clerk, in pursuance of the 3 Geo. IV. c. 126, s. 74; it was held that the property of the clerk was not liable to be taken in execution to satisf the judgment. (Wormwell v. Hailstone, 6 Bing. 668; 4 M. & P. 51 S. C.; and see Cane v. Chapman, 5 Ad. & E. 661, per Coleridge, Je Harrison v. Timmins, 4 M. & W. 510; 7 Dowl. 28, S. C.; Emery v. Day, 4 Tyr. 695). Et per Tindal, C. J., in Worme Hailstone, (supra), "It is asked, how are the debt or damages ta recovered in this action, if the clerk is not liable? This act, undon edly, makes no direct provision, as do many others of a similar nat upon this subject; but there can be no doubt that the funds of trustees may be made answerable for the amount ascertained in action, in case of a refusal to apply them, either by a mandamus or a bill in equity." (And see R. v. St. Katharine's Dock Company, B. & Ad. 360). By a statute, (7 Will. IV. & 1 Vict. c. xxx.), a company was blished, with power to make calls, and to sue and be sued in the of their treasurer or any director: an action was brought agains treasurer, and judgment entered up against the company, who app to have no assets. The court refused to issue a mandamus command the company to pay the sum recovered and costs. (R. v. The Vict Park Company, Î Ad. & E., N. S., 288). In this case the court also refused to issue a mandamus requiring company to make calls to enable them to satisfy the debt, it appe that calls sufficient to satisfy the judgment had been made, but not and that the company had not the proper officers for making s Quære, whether, if these circumstances had not appeared, would have gone commanding the company to make the calls As to the writ of mandamus in general, see post, tit. "Mad" Vol. V. a Division of subject. Appointing offi cers, &c., in general. Herein of, VI. Officers. 1. Officers in general, their Appointment, Removal, Accounts, Liabilities, p. 670. 2. Treasurer and Clerk, p. 674. 3. Surveyor and Clerk, p. 675; and 4. Collectors and Receivers, p. 675. 1. OFFICERS, THEIR Appointment, REMOVAL, ACCOUNTS, AND LIABILITIES. By 4 Geo. IV. c. 95, s. 43, "The trustees or commissioners for ma or maintaining any turnpike road may, and they are hereby empo by writing under their hands, to appoint (a) such collector or colle of the tolls arising on such road, and clerk or clerks, treasurer or (a) See form, No. 57, post. 6. Officers. 4 Geo. 4, c. 95. Removal. Surers, surveyor or surveyors of the said road, and such other officers as the said trustees or commissioners shall think necessary; and such collectors, clerks, treasurers, surveyors, and other officers, or any of hem, from time to time to remove, and, on removal, death, or resignation of any such collectors, clerks, treasurers, surveyors, or other officers, appoint others in their stead; and may and are hereby authorized Salaries, &c. and empowered, out of any of the monies arising on such turnpike road, to allow and pay to the several collectors, clerks, treasurers, surveyors, and other officers, and to such other person or persons as shall be assisting them or any of them, in or about the execution of the act for making or maintaining such road, and the said recited act (3 Geo. IV. .126) and this act, such salaries, rewards, and allowances for their attendance, care, labour, and services, as such trustees or commissioners shall deem reasonable." If any salary, fee, or emolument appertains to the appointment, it Stamps. nust be stamped. See the Stamp Act, tit. "Grant." (R. v. Lew, 8 3. & C. 655; 3 M. & R. 369, S. C.) hold places of By stat. 3 Geo. IV. c. 126, s. 75, "No person shall be capable of Victuallers not to olding any place of profit under any trustees or commissioners of any profit. umpike road, who shall sell any wine, ale, spirituous liquors, or proisions by retail." officer. The above 43rd section must be taken in conjunction with sect. 39 of Removal of By 9 Geo. IV. c. 77, s. 15, "The treasurer, if appointed consistently quent act." of Officers to hold their offices after any act is repealed, unless removed by trustees. Officers to account trustees. when required by By 4 Geo. IV. c. 95, s. 47, "All such officers as shall have been or shall be pointed by any trustees or commissioners of any turnpike road, shall, om time to time, when thereunto required by the trustees or commisoners, deliver to such trustees or commissioners, or to such person or pers as they shall for that purpose appoint, true, exact, and perfect accounts writing, under their respective hands, of all monies which they and very of them respectively shall have received to that time, by virtue any act, and how much thereof hath been paid and disbursed, and what purposes, together with the proper vouchers for such payments, nd shall pay all such monies as shall remain in their or any of their Lads to the said trustees or commissioners, or to such person or perons as they shall appoint to receive the same, and not otherwise, within rach time as such trustees or commissioners shall limit or appoint; and Proceedings on f any such officer or person shall refuse or neglect to produce or deliver to account. neglect of officers |