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in the name of Gibson for the benefit of Plympton, to whom Gibson had given an order on the defendant to pay Plympton $175.33 "as my income becomes due." The defendant held property in trust to pay over the "net proceeds once a quarter" to Gibson and others. The court held that it did not appear that "at the time of the assignment, or at any period since, the whole amount due to Gorham Gibson would correspond with the amount of the draft," and that "a debtor is not to have his responsibilities so far varied from the terms of his original contract as to subject him to distinct demands on the part of several persons, when his contract was one and entire."

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Knowlton v. Cooley, 102 Mass. 233, was trustee process, and the trustee had in his hauds $147 due the defendant as wages, and the claimant held an order given by the defendant, before the wages were earned, for the payment to him of the defeudant's wages as fast as they became due, to the amount of $150," which the trustee had accepted. The court held that the order was an assignment of wages, and not having been recorded, was invalid against trustee process by St. 1865, ch. 43, § 2. The court say that "the acceptance of the order by Barton (the trustee) does not change its character. His assent was necessary to give it any validity even as an assignment. Gibson v. Cooke, 20 Pick. 16."

Papineau v. Naumkeag Steam Cotton Co., 126 Mass. 372, was an action of contract, and the court say: "The order of Couillard on the defendant in favor of the plaintiff was not an order for the payment of all that should be due the drawer at the several times when the installments were to be paid. It was not therefore an assignment of wages to the plaintiff, unless the defendant saw fit to assent to it as such, but a mere order for money."

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It is settled that an assigument of a part of a debt, if assented to by the debtor in such a manner as to imply a promise to pay it to the assignee, is good against trustee process, or against an assignee of insolvency. Taylor v. Lynch, 5 Gray, 49; Lannan v. Smith, 7 id. 150.

In Bourne v. Cabot, 3 Metc. 305, the court say: "The order of Litchfield on the defendant was a good assignment of the fund pro tanto to the plaintiff, and the express promise to the assignee to pay him the balance when the vessel should be sold constituted a legal contract." It is also settled that an equitable assignment of the whole fund in the hands of the trustee is good against trustee process, although the trustee has received no notice of the assignment until after the trustee process was served, and has never assented to it. Wakefield v. Martin, 3 Mass. 558; Kingman v. Perkins, 105 id. 111; Norton v. Piscataqua Ins. Co., 111 id. 532; Taft v. Bowker, 132 id. 277; Williams v. Ingersoll, 89 N. Y. 508.

Before as well as since St. 1865, ch. 43, § 1 (Pub. St., ch. 183, § 38), if the assignment was for collateral security, and the assignee was bound to pay immediately to the assignor, out of the sum assigned, any balance remaining after payment of his debt, it has been held that the excess above the debt for which the assignment was security was attachable by the trustee process. Warren v. Sullivan, 123 Mass. 283; Giles v. Ash, id. 353; Macomber v. Doane, 2 Allen, 541; Darling v. Andrews, 9 id. 106. See Lannan v. Smith, 7 Gray, 150.

In Macomber v. Doane, ubi supra, the court say that "an order constitutes a good form of assignment, it being for the whole sum due or becoming due to the drawer, and it needs not to be accepted to make it an assignment." The order was for one month's wages, which as subsequently ascertained,amounted to $37.50, but it was given as security for groceries furnished and to be furnished, and on the day of the service of

the writ the defendant owed the claimant for groceries $28.79, and the remaining $8.71 was held by the trustee process. Some of these cases were noticed in Whitney v. Eliot Nat. Bank, 137 Mass. 351; S. C., 50 Am. Rep. 316, and the court then declined to decide "whether in equity there may not be an assignment of a part of a debt."

Without considering the cases upon the effect of orders or drafts for money as constituting assignments of the debt, or a part of it, it seems never to have been actually decided in this Commonwealth that an assignment, for value, of a part of an entire debt is not good to the extent of the assignment against trustee process. In trustee process the trustee of the defendant, if charged, is by the statute compelled to pay to the plaintiff so much of what he admits to be due to the defendant as is necessary to satisfy the plaintiff's judgment, and as an entire debt may thus be divided, it seems equitable that assignees of a part of the debt should be admitted as claimants, and this is in effect done when the assignment is as collateral security.

Palmer v. Merrill, 6 Cush. 282, was assumpsit against the administrator of Spaulding, who had caused his life to be insured, payable to himself, his executors, administrators, or assigns; and he, "by a memorandum in writing, indorsed on the policy, for a valuable consideration, assigned and requested the insurers to pay the plaintiff the sum of $400, part of the sum insured by the policy, in case of loss on the same, of which assignment and request the insurers on the same day had due notice." "The policy, with this indorsement thereon, remained in the custody of Spaulding until his decease," and came into the hands of the administrator of his estate, who collected the whole amount of the insurance, and represented the estate insolvent; and the question was "whether the case shows an assignment which vested any interest in the policy, legal or equitable, in the plaintiff." The court held that it did not. The court say: "According to the modern decisions, courts of law recognize the assignment of a chose in action so far as to vest an equitable interest in the assignee, and authorize him to bring an action in the name of the assiguor, and recover judgment for his own benefit. But in order to constitute such an assignment two things must first concur: First, the party holding the chose in action must, by some significant act, express his intention that the assignee shall have the debt or right in question, and according to the nature and circumstances of the case, deliver to the assignee, or to some person for his use, the security, if there be one, bond, deed, note, or written agreement upon which the debt or chose in action arises; and secondly, the transfer shall be of the whole and entire debt or obligation of which the chose in action consists," etc.; that "it appears to us that the order indorsed on the policy, and retained by the assured, fails of amounting to an assignment in both these particulars; " and that an order "for a part only of the fund or debt ""is a draft or bill of exchange which does not bind the drawer, or transfer any proprietory or equitable interest in the fund, until accepted by the drawee. It therefore creates no lien upon the fund. Upon this point the authorities seem decisive. Welch v. Mandeville, 1 Wheat. 233; S. C., 5 id. 277; Robbins v. Bacon, 3 Greenlf. 346; Gibson v. Cooke, 20 Pick. 15."

Welch v. Mandeville, ubi supra, was an action of covenant broken, brought by Prior, in the name of Welch. against Mandeville, who set up a release by Welch, to which Prior replied that Welch, before the release, had assigned the debt due by reason of the covenant to him, of which the defendant had notice. The court consider the effect of certain bills of exchange, and say: "But where the order is drawn either on a gen

eral or a particular fund, for a part only, it does not amount to an assignment of that part, or give a lien against the drawer, unless he sonsents to the appropriation by an acceptance of the draft," etc.; that "a creditor shall not be permitted to split up a single cause of action into many actions without the assent of his debtor;" and that "if the plaintiff could show a partial assignment to the extent of the bills, it would not avail him in support of the present suit."

The equitable doctrine now maintained by the Supreme Court of the United States is shown by Wright v. Ellison, 1 Wall. 16; Christmas v. Russell, 14 id. 70; Trist v. Child, 21 id. 441; and Peugh v. Porter, 112 U. S. 737; S. C., 5 Sup. Ct. Rep. 361.

In Peugh v. Porter that court ordered that a decree be entered that Peugh, subject to certain rights in the estate of Winder, was entitled to one-fourth of a fund by virtue of an assignment of one-fourth of a claim against Mexico, made before the establishment of the claim from which the fund was derived, and before the fund was in existence, and declared the law to be that "it is indispensable to a lien thus created that there should be a distinct appropration of the fund by the debtor, and an agreement that the creditor should be paid out of it." In Robbins v. Bacon, ubi supra, the order was for the payment of the whole of a particular fund, and was held good.

The existing law of Maine is declared in Exchange Bank v. McLoon, 73 Me. 498; S. C., 40 Am. Rep. 388, by an elaborate opinion, and the conclusionfreached is that an assignment of a part of a chose in action is good in equity and against trustee process.

of a part of a fund or debt which will constitute an equitable lien or charge upon it, and will be enforced in equity against the debtor or person holding the fund. Palmer v. Merrill, ubi supra, may well rest upon the first reason given for the decision. See Stearns v. Quincy Ins. Co., 124 Mass. 61, 63; S. C., 26 Am. Rep. 647. The decisions of courts of equity in other jurisdictions are almost unanimous in maintaining such a lien, where the assignment is for value, and distinctly appropriates a part of the fund or debt, and makes the sum assigned specifically payable out of it.

Without undertaking to decide what is not before us, and confining ourselves to the facts in the case, which are that the debt remains unpaid, and the debtor in his answer asks the court to determine the right of the different claimants, we think that there should be a decree that the city of Newton pay to the plaintiff $600, and that the remainder of the sum due from the city, after deducting its costs, be paid to Gilkey, assignee. The assignment was not made in fraud of the law relating to insolvency. So ordered.

NUISANCE-FIRE-PLUG IN HIGHWAY-WEARING
AWAY OF ROAD.

ENGLISH COURT OF APPEAL, APRIL 17, 1886. MOORE V. Lambeth WATER WORKS COMPANY.* A fire-plug had been lawfully fixed in a highway by the defendants. Originally the top of the fire-plug had been level with the pavement of the highway, but in consequence of the ordinary wearing away of the highway the fire-plug projected half an inch above the level of the pavement. The fire-plug itself was in perfect repair. The plaintiff, whilst passing along the highway, fell over the fire-plug, and was hurt. Held, that as the fire-plug was in good repair, and had been lawfully fixed in the highway, no action by the plaintiff would lie against the defendants.

CTION to recover damages for bodily injuries.

In England it is held that the particular fund or debt out of which the payment is to be made must be specified in the assignment (Percival v. Dunn, 29 Ch. Div. 128); but the assignment of a part of a debt or fund is good in equity. The present case is like Ex parte Moss, 14 Q. B. Div. 310, and a stronger case for the plaintiff than Brice v. Bannister, 3 Q. B. Div. 569, where, although the procedure was under the statute of 36 & 37 Vict., ch. 66, the foundation of the liability was that the assignment was good in equity; and the case at bar is relieved from the difficulties which induced Brett, L. J., in that case, to dissent; and Brice v. Bannister was affirmed in Ex parte Hall, 10 Ch. Div. 615. The present case also resembles Tooth v. Hallett, 4 Ch. App. 243, except that there the sums paid by the trustees for creditors, in finishing the house, exhausted all that became due under the contract. See also Ad-plug, or at all events a plug, was put down in a highdison v. Cox, 8 Ch. App. 76.

In Appeals of the City of Philadelphia, 86 Penn. St. 179, it is conceded that the rule that an assignment of a part of a debt is valid prevails in equity between individuals, but the court refused to apply it to a debt due from a municipal corporation, on the ground that the policy of the law is against permitting individuals by their private contracts to embarrass the principal officers of a municipality. See Geist's Appeal, 104 Penn. St. 354. But there is no ground for any such distinction in this Commonwealth.

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In New York the assignment of a part of a debt or fund is good in equity, Field v. Mayor, etc., 6 N. Y. 179; Risley v. Phoenix Bank of New York, 83 id. 318; S. C., 38 Am. Rep. 421; and the same doctrine is maintained in other States, Daniels v. Meinhard, 53 Ga. 359: Etheridge v. Vernoy, 74 N. C. 800; Lapping v. Duffy, 47 Ind. 51; Fordyce v. Nelson, 91 id. 447; Bower v. Hadden Blue-stone Co., 30 N. J. Eq. 171; Gardner v. Smith, 5 Heisk. 256; Grain v. Aldrich, 38 Cal. 514; County of Des Moines v. Hinkley, 62 Iowa, 637; Canty v. Lutterner, 31 Minn. 239; First Nat. Bank v. Kimberlands, 16 W. Va. 555.

From the examination of our cases it appears not to have been decided that there cannot be an assignment

A

Winch (Edwards Clarke, Q. C., with him), for defendants.

Waddy, Q. C., and Aspland, for plaintiff.

LORD ESHER, M. R. This is a curious case. A fire

way; it was, so far as the evidence goes, put down with due care, and was in proper condition in the highway. It remained there, and it must be taken that the plug itself was kept in perfect order, and that there was no defect in it. But the plug being in the highway, the roadway was worn away, so that the roadway had got half an inch below the top of the plug. The plaintiff caught his foot against the plug, and fell down, and then he brings this action against the water works company, and obtains judgment for a considerable amount. The question is whether the water works company are under those circumstances liable. Now the argument for the plaintiff really amounted to this, that whoever puts into a highway that which becomes from any cause a nuisance or dangerous to persons going along the highway, is liable to make compensation if it occasions injury to any person. But to my mind that doctrine has always been applied only where a thing has been put without au thority in the highway. If something is put without

authority in the highway, that of itself does not make the person putting it there liable at the hands of an individual; an obstruction in a highway will not entitle an individual to bring an action. But if something is

*17 Q. B. Div. 462.

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put in a highway without authority, and is left there, so that it becomes that which is generally called a nuisance, but which is really an obstruction, and if a person, lawfully using the highway, falls over it, or is otherwise injured by it, the person putting it in the highway must make compensation. But the water works company were certainly authorized by act of Parliament to put this plug in the highway. I infer that they were compelled to put it in the highway; because, although a great deal of argument was brought forward to show that this was not a fire-plug, to my mind it is clear as a matter of fact that it was a fire-plug, whether it was originally put there as a fireplug or not; and I think the evidence clear that the plug must have been originally put there as a fireplug. Besides being used as a fire-plug, it was no doubt used by the water works company as that which is called an end plug, for flushing the sewers. But a fire-plug can always be used for flushing sewers, and I do not know of any act of Parliament which says that when the water works company are obliged to keep a fire-plug, they may not themselves use it for other purposes. There are always two keys to a fire-plug, one which is given to the fire brigade, another which is kept by the water works company; and the water works company are brought into disgrace if their turnkey is not in the way with the key before even the fire brigade come with their key. I believe that the water works company were compelled to put this fire-plug in the highway; at all events it is obvious to my mind that it was adopted as a fire-plug, because it is proved that the fire brigade had a key of it.

In this case the water supply is not in the hands of the road authority; the water works company and the road authority are perfectly distinct; therefore the question is whether the water works company are to be made liable for this accident. It was argued that they must be liable. Then it was asked, “But how are they to prevent this mischief? If the road is worn down, are they to mend the road?" It was answered: "No, they cannot mend the road." Then what are they to do? Why they must cut down the fire-plug; as the road wears down, they must keep cutting down the fire plug. That seems to be a curious liability to put upon the water works company. One would think that the act of Parliament which obliges them or authorizes them to put this plug in the road, if it meant to impose upon them such a liability as that, would have said so in direct terms; but the act of Parliament only says that they are to keep the plug in repair. Something was argued about whose property the plug became. I think that is immaterial. The act of Parliament allows the water works company to put it in the highway, and says that they are to keep it in repair. It was in perfect repair, but it was the road which had been worn down.

further, what is to be the condition of things if a company is compelled to put it down by act of Parliament? It seems to me that the proper result under those circumstances is, that the road authority must take notice of the act of Parliament, and that they must keep the road fit for the public to pass along it, having regard to that which is in the road by virtue and authority of Parliament, just the same as if it had been there before the road was made, so that the road was dedicated subject to it. The act of Parliament has said that the plug may be in the road, and the authorities must keep the road having regard to that which may or must be there by authority of the act of Parliament. If that be true, the water works company have done all that the statute obliged them to do, and their whole obligation was imposed by statute, and no express liability was laid upon them in the statute; on the contrary, a minor liability was laid upon them, and nothing is to be implied from the act of Parliament under these circumstances.

If either party was in the wrong, it seems to me to have been the road authority. I think that no action will lie by this plaintiff against the road authority; but it does not follow that because no action will lie against the road authority, therefore he can maintain an action against the defendants, who have done no wrong. I think that he cannot maintain an action against the water works company under these circum

stances.

It has been held that if we come to this conclusion we must overrule Kent v. Worthing Local Board, 10 Q. B. Div. 118. I do not think it necessary to say that we must overrule Kent v. Worthing Local Board, supra. In that case the water supply was in the hands of the defendants, and they were also the local authority for keeping the road: they were the authority for both. It is true that in that case the valve-cover was not out of order, and in that respect it was like this case; it was only the road which was out of order with regard to the valve-cover. If the case cannot be upheld upon the ground that the one authority was master of both situations, I respectfully differ from it, and think it was wrongly decided. It may be that it can be upheld on that ground. My brother Lindley has pointed out a case extremely like Kent v. Worthing Local Board, 10 Q. B. Div. 118; it is Blackmore v. Vestry Mile End Old Town, 9 id. 451. In that case a water-meter, which was the property of a water company, and used for measuring the water supplied by the company to the defendants, the vestry of a parish, for watering the streets, was placed by the defendants in a box of theirs sunk in the footway of one of the streets and covered with an iron flap. The defendants, as such vestry, were by section 96 of the Metropolis Management Act (1855) the surveyors of highways, and by section 16 authorized to cause the streets in their parish to be watered. Therefore so far as the watering and the keeping of the road in order were concerned there was but one authority. But then in that case the cover of the water meter had worn away until it was quite smooth, and so had become slippery. Therefore something had happened there to the water meter; it was not in its original condition, but it had been allowed to be worn smooth. In that case the defendants were held liable, they having the control of both the roadway and the water supply. It is obvious to my mind that that case would not of itself necessarily support Kent v. Worthing Local Board, supra, because in Kent V. Worth

Now it is said that if the fire-plug had not been in the highway the wearing down of the roadway was not sufficient to make the road so out of repair as to render the authority having care of it indictable. That is true. Then we must see what the liabilities of these two parties are. Now if the fire plug had been put down by authority before the road was dedicated to the public and adopted by them, then, as is clear from the decision in Fisher v. Prowse, 2 B. & S. 770, the road authority and the surveyor must keep the road in repair with regard to that plug, and if they allow the road to come into such a condition that the road, having regard to the plug, is not safe, then they may be indicted. They must keep the road in repairing Local Board, supra, there was nothing the matter having regard to it. If that is the law when the plug is put down before the road is dedicated, what is the condition of things when it is put there after the road exists, but is put there by authority of Parliament and not merely by contract, not merely by leave? and

with the valve-cover, whereas in this case of Blackmore v. Vestry of Mile End Old Town, supra, the cover of the water meter was out of order; it had been worn smooth so as to become slippery. I do not think it absolutely necessary to say that we disagree

with Kent v. Worthing Local Board, supra. It may possibly at some future time be upheld on the ground of the double anthority. If it cannot be upheld on that ground, I think it was wrongly decided. I do not say that this is the ground on which it was decided, but I say that unless it can be upheld as a decision on that ground, I respectfully think that it was wrong, and I am not prepared to follow it.

In this case I think the water works company are not liable.

LINDLEY, L. J. I am of the same opinion, and I will consider the case first of all upon the acts of Parliament, and secondly, with regard to the authorities relied on by the plaintiff, upon which Day, J., decided❘ in his favor.

Now we cannot ascertain very accurately the his tory of this fire-plug; but having regard to the act of the company passed in 1834, and the evidence of one of the witnesses, I should infer, if it is open to me to do so, that this plug, or at least the predecessor of this plug, was put down in this spot under the provisions af the act of 1834. If I am right in that respect, it was the statutory duty of this company to put down a fire-plug somewhere about this spot; in other words this fire-plug would have been put there in pursuance of the statutory duty. If it was not put down under that authority, it would be put down under section 38 of the Water Works Clauses Act (1847), 10, 11 Vict., ch. 17, or under the Metropolitan Fire Brigade Act (1865), 28, 29 Vict., ch. 90, § 32. Be that as it may, it was considered at all events that the old plug was lawfully in the highway, and had been there for many years. In 1880, or thereabouts, the old plug was removed and the new plug was put in its place.

We are invited by the counsel for the plaintiff to say that the evidence authorized the inference that this plug was not properly fixed at the time when it was put down, that is to say, that no reasonable allowance was made for that which would obviously take place, namely, a certain amount of wear and tear in the asphalt. If that had been made out, the plaintiff's case would be very different from what it is; but I cannot, from the evidence, arrive at that conclusion. On the contrary, the evidence appears to me to establish beyond doubt that this plug, when put down in this road of asphalt, was put down in every sense properly. There was some inspection on the part of the road surveyor. The plug itself was a trifle below the dead level of the road; some allowance was made, and so far as we can see, a reasonable allowance was made, to provide against all unforeseen circumstances, and I do not think from the evidence that the contention that there was negligence in putting in the plug can be supported. Now it is admitted on all hands that unless that contention can be sustained, no fault can be found with the plug; the plug itself was not out of repair, and there was nothing the matter with it. It had not grown; it had not changed in any way. The history of the matter is that the asphalt road was worn away, and the result was that the fire-plug stood up three-eighths of an inch above the level of the pavement. The plaintiff unfortunately fell over it, and was very seriously injured. When we look at the duty cast on the water works company by the acts of Parliament which related to them, and more particularly by the Water Works Clauses Act (1847), we cannot find any thing more extensive than the obligation which is cast upon them by the 39th section, to "renew and keep in effective order every such fire-plug." Then there are provisions about keys which I need not notice. Nothing in the act expressly or by necessary implication either compels the company to repair the road, or authorizes them to repair the road, and I cannot find that they have committed any breach of any statutory obligation. Their statutory right and their

statutory obligation are satisfied by putting down this plug and keeping it in repair, and doing what the stat ute requires as regards keys and other matters. Then it is said that at common law, if any one maintains something in a highway, he must take care that it is not a muisance, and does not obstruct the traffic. I think that as a universal proposition, that is not true, as is shown by those cases where high roads have been dedicated subject to obstruction, and I am not able to find any authority which goes the length of deciding that a person who is authorized or compelled by act of Parliament to put a thing in the highway, is bound to do more than the statute requires him to do. Suppose, for example, the pipes of this water works company to be somewhat below the level of the surface, and a storm to carry the whole of the surface away, so as to leave their pipes uncovered and projecting; I take it that the company could not be indicted for a nuisance for having the pipes so exposed, although the pipes might be an obstruction to the. traffic. It appears to me however, apart from authority, that the plaintiff has not shown that these defendants have either by a matter of commission or omission neglected any duty which is cast upon them by law.

Then it has been argued that there are cases which show that the company are liable, and in particular there is the case of Kent v. Worthing Local Board, supra. Now that case unquestionably in some respects was extremely like this. In the first place, I will observe there that the decision of the court proceeded upon a decision in the Privy Council in Borough of Bathurst v. Macpherson, 4 App. Cas. 256, which I do not think myself warranted the inference which the court drew from it. In Borough of Bathurst v.Macpherson, supra, the defendants were held liable for a drain which was out of repair, and which it was their duty to keep in repair, and which led to the accident on the highway. Of course if the drain was out of repair, and by reason of that there was a hole into which some one fell, there could be no defense to the action. But here we are assuming that there was nothing the matter with the plug, except the fact that it projected above the level of the road.

There are some other cases which would enable the plaintiff to maintain this action if this plug had been unfit for its position, the road being in the state in which it ought to have been. For example, in the case referred to by the master of the rolls, Blackmore v. Vestry of Mile End Old Town, supra, the same authority had control over the road and over the flap which protected the water meter, the flap itself having become worn away so as to become slippery. There it was held that an action would lie against the defendants upon the ground that they were maintaining in the highway that which of itself was dangerous, the rest of the highway being in the condition in which it ought to have been. I do not feel myself pressed in any way by that authority. But in Kent

V.

Worthing Local Board, supra, there is certainly a difficulty, because the valve cover was in repair, but projected a little above the road. This distinction-and it appears to me, I confess, to be a distinction which is well worth considering is this, that in the case of Kent v. Worthing Local Board, supra, the same authority had control over the highway and over the valve cover; and although the decision did not proceed upon this ground, the importance of it appears to me to arise in this way: we all know that a parish and a surveyor could not be sued at law for an accident arising from mere non-repair, and that doctrine, so far as the parish is concerned, rested upon the ground that there was no one to sue. The parish might be iudicted, but was not liable to an

action.

Gibson v. Mayor of Preston, L. R., 5 Q. B., 218, decided that that common-law doctrine applied, even although the road authority was incorporated, and therefore was capable of being sued in an action at law. It was held there, that upon the construction of the Public Health Acts, the local board, although it was capable of being sued, was no more liable for accidents of this kind than the parish or the surveyor. It may be that the principle of that case does not apply to the road authority where they have a control, not only over the road, but over the thing which creates a nuisance; in other words, it may be that Gibson v. Mayor of Preston, supra, is somewhat anomalous, and that it is not to be extended to cases which are not exactly like it. If Kent v. Worthing Local Board, supra, is not to be distinguished from this case upon that ground, then in my opinion it is erroneous. But I am not prepared to say that it cannot be so distinguished, and am not prepared therefore now to overrule it. It appears to me that when we look into the authorities we find none of them touching this, and that to decide in favor of the plaintiff would be to make the water company liable for a breach of duty by other persons. I am aware that this will be rather a hard decision on the plaintiff, for if Gibson v. Mayor of Preston, supra, was right and I do not say that it was wrong-then the plaintiff cannot sue the road authority; but it does not follow that because the road authority-who, in my opinion, are in the wrong-cannot be sued, therefore the water works company, who have done no wrong, are to be held liable. I think therefore that the judgment ought to be for the defendants, with costs here and below.

LOPES, L. J. This case raises a difficult and an im. portant question. The facts of the case, I think I am justified in saying, are pretty well admitted.

The fire-plug, beyond all question, had been lawfully placed where it was; it was proper in itself; it was properly fixed; at the time of the accident it was in proper order. With regard to the asphalt path, that too was in perfect order; only its level had been reduced by ordinary wear and tear, so that the effect was that the plug was three-eighths of an inch higher than the level of the path. Therefore nothing was wrong either with the fire-plug or with the path. The plaintiff however, when walking along the path, fell over the plug and was seriously injured, and has brought this action, and obtained damages against the defendants.

It has been argued that under these circumstances the defendants, the water works company,fare liable to the plaintiff. I take it that the defendants cannot be made liable, unless they have been guilty of some breach of duty. I am at a loss to see any breach of duty of which they have been guilty; so far as the statute is concerned, clearly there is no breach of duty. The 39th section of the Water Works Clauses Act (1847) provides that they are to renew and keep the plug in effective order. It cannot be said here that this fire-plug was not in effective order, because as I have already said, there was nothing the matter with it.

Then at common law can it be said, that there was any obligation upon them to keep this plug so as to accommodate it to the varying level of the path? I know of no authority for that contention except the case of Kent v. Worthing Local Board, supra, with which I will deal presently.

It may be that the plaintiff has suffered a wrong for which there is no remedy; but still the plaintiff, in order to maintain a judgment in his favor, must make out that the defendants have committed an actionable

wrong. I can see no actionable wrong that they have committed.

Now whether the road authority could be made liable if an action had been brought against them, it is not necessary for me to express any opinion; but speaking for myself, I should be inclined to think. on the authority of Gibson v. Mayor of Preston, supra, that they could not have been made liable. That case was decided some time ago, and has been consistently acted upon ever since.

The judgment of the court below proceeded upon the authority of Kent v. Worthing Local Board, supra. That was an authority which was relied upon. The facts in that case, as they appear to me, are similar to these. The iron cover of a valve connected with a water main was properly fixed in a highway by the defendants, but in consequence of the ordinary wearing away of the highway, the valve cover projected an inch above it. The plaintiff's horse, using the highway, stumbled over the valve cover and was hurt. In an action against the defendants, who were both the water authority and the highway authority, for the injury to the horse, it was held that it was the duty of the defendants to make such arrangements that works under their care should not become a nuisance to the highway, and that the plaintiff was entitled to recover. The facts therefore were nearly similar to these now before us, and I am unable to distinguish that case from this, unless there is any thing in the fact that the water authority and the highway authority were the same body; in the present case the water authority are the only defendants, and are sued alone. I do not think myself there is any thing in that distinotion, and not thinking that there is any thing in that distinction, I feel a difficulty in following that case. In point of fact I cannot see how this court can avoid over-ruling it; because it is to be observed that the decision did not proceed at all upon the fact that the water authority and the highway authority were the same persons. The words of Stephen, J., who delivered the judgment of himself and Field, J., are these (10 Q. B. Div. 123): "In the words of the judgment in Bathurst v. Macpherson, supra, the duty was cast upon them of keeping the artificial work which they had created in such a state as to prevent its causing a danger to passengers on the highway, which but for such artificial construction would not have existed." Now if that is correct, every word of it applies here. I cannot adopt it. The court seems to have proceeded upon the authority of two cases-White v. Hindley Local Bourd, L. R., 10 Q. B. 219, and Borough of Bathurst v. Macpherson, supra. It seems to me that those cases were not authorities for the conclusion at which the Queen's Bench Division arrived, because in the case of White v. Hindley, supra, the accident was caused by a defective grid, which was used partly to stop the hole which otherwise would have been left in the road; the grid stood very much in the position of the fire-plug in this case, which it is admitted was in a perfect state.

Again in Borough of Bathurst v. Macpherson, supra, the accident was caused by the defective state of a barrel drain, which was in such a state that the adjacent soil of the road washed into it and made a hole. The drain itself therefore, the property of the defendants, was in a defective state. The drain there stood in the same position as the fire-plug here, which admittedly had nothing wrong with it.

I myself cannot see any thing in the distinction which has been suggested between this case and Kent v. Worthing Local Board, supra; and so far as I am concerned, if our decision is right now, I think that that case must be overruled, and ought to be overruled, Judgment for the defendants.

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