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in the name of Gibson for the benefit of Plympton, to the writ the defendant owed the claimant for grocer-
whom Gibson had given an order on the defendant to ies $28.79, and the remaining $8.71 was held by the
pay Plympton $175.33 “as my income becomes due." trustee process. Some of these cases were noticed in
The defendant held property in trust to pay over the Whitney v. Eliot Nat. Bank, 137 Mass. 351; S. C., 50
"net proceeds once a quarter" to Gibson and others. Am. Rep. 316, and the court then declined to decide
The court held that it did not appear that “at the “whether in equity there may not be an assigament
time of the assignment, or at any period since, the of a part of a debt."
whole amount due to Gorham Gibson would corre- Without considering the cases upon the effect of
spond with the amount of the draft," and that “a orders or drafts for money as constituting assignments
debtor is vot to have his responsibilities so far varied of the debt, or a part of it, it seems never to have
from the terms of his original coutract as to subject been actually decided in this Commonwealth that an
him to distinct demands ou the part of several persons, assignment, for value, of a part of an entire debt is
when his contract was one and entire."

not good to the extent of the assignment against
Knowlton v. Cooley, 102 Mass. 233, was trustee pro- trustee process. In trustee process the trustee of the
cess, and the trustee had in his hands $147 due the de- defendant, if charged, is by the statute compelled to
fendant as wages, and the claimant held an order pay to the plaintiff so much of what he admits to be
given by the defendant, before the wages were earned, due to the defendant as is necessary to satisfy the
for the payment to him of the defendant's wages plaintiff's judgment, and as an entire debt may thus
fast as they became due, to the amount of $150,” which be divided, it seems equitable that assignees of a part
the trustee had accepted. The court held that the of the debt should be admitted as claimants, and this
order was an assignment of wages, and not having is in effect done when the assignment is as collateral
been recorded, was invalid against trustee process by security.
St. 1865, ch. 43, $ 2. The court say that “the accept- Palmer v. Merrill, 6 Cush. 282, was assumpsit against
ance of the order by Barton (the trustee) does not the administrator of Spaulding, who had caused his
change its character. His assent was necessary to give life to be insured, payable to himself, his executors,
it any validity even as an assignment. Gibso11 v. Cooke, administrators, or assigns; and he," by a memoran-
20 Pick. 16."

dum in writing, indorsed on the policy, for a valuable Papineau v. Naumkeag Steam Cotton Co., 126 Mass. consideration, assigned and requested the insurers to 372, was an action of contract, and the court bay: pay the plaintiff the sum of $400, part of the sum in“The order of Couillard on the defendant in favor of sured by the policy, in case of loss on the same, of the plaintiff was not an order for the payment of all which assignment and request the insurers on the that should be due the drawer at the several times same day had due notice." 'The policy, with this inwhen the installments were to be paid. It was not dorsement thereon, remained in the custody of Spauldtherefore an assignment of wages to the plaintiff, un- ing until his decease," and came into the hands of the less the defendant saw fit to assent to it as such, but a administrator of his estate, who collected the whole mere order for money.

amount of the insurance, and represented the estate It is settled that an assigument of a part of a debt, insolvent; and the question was “whether the case If assented to by the debtor in such a manner as to shows an assignment which vested any interest in the imply a promise to pay it to the assignee, is good policy, legal or equitable, in the plaintiff.” The court against trustee process, or against an assignee of in- held that it did not. The court say: “According to solvency. Taylor v. Lynch, 5 Gray, 49; Lannan v. the modern decisions, courts of law recognize the asSmith, 7 id. 150.

signment of a chose in action so far as to vest an equitIn Bourne v. Cabot, 3 Metc. 305, the court say: able interest in the assignee, and authorize him to “The order of Litchfield on the defendaut was a good bring an action in the name of the assiguor, and reassignment of the fund pro tanto to the plaintiff, and cover judgment for his own benefit. But in order to the express promise to the assignee to pay him the bal- constitute such an assignment two things must first ance when the vessel should be sold constituted a legal

First, the party holding the chose in action contract." It is also settled that an equitable assign- | must, by some significant act, express his intention ment of the whole fund in the hands of the trustee is that the assignee shall have the debt or right in quesgood against trustee process, although the trustee has tion, and according to the nature and circumstances received no notice of the assignment until after the of the case, deliver to the assignee, or to some person trustee process was served, and has never asserted to for his use, the security, if there be one, bond, deed, it. Wakefield v. Martin, 3 Mass. 558; Kingman v. Per- note, or written agreement upon which the debt or kins, 105 id. 111; Norton v. Piscataqua Is. Co., 111 id. chose in action arises; and secondly, the transfer shall 532; Taft v. Bowker, 132 id. 277; Williams v. Ingersoll, be of the whole and entire debt or obligation of which 89 N. Y. 508.

the chose in action consists,” etc.; that “it appears to Before as well as since St. 1865, ch. 43, S1 (Pub. St., us that the order iudorsed on the policy, and retained ch. 183, § 38), if the assignment was for collateral secur- by the assured, fails of amounting to an assignment in ity, and the assignee was bound to pay immediately both these particulars; "and that an order "for a to the assignor, out of the sum assigued, any balance part only of the fund or debt" "is a draft or bill of remaining after payment of his debt, it has been held exchange which does not bind the drawer, or transfer that the excess above the debt for which the assign- any proprietory or equitable interest in the fund, until ment was security was attachable by the trustee pro- accepted by the drawee. It therefore creates no lien

Warren v. Sullivan, 123 Mass. 283; Giles v. Ash, upon the fund. Upon this point the authorities seem id. 353; Macomber v. Doane, 2 Allen, 541; Darling v. decisive. Welch v. Mandeville, 1 Wheat. 233; 8. C., 5 Andrews, 9 id. 106. Soe Lannan v. Smith, 7 Gray, id. 277; Robbins V. Bacon, 3 Greenlf. 346; Gibson v. 150.

Cooke, 20 Pick. 15." In Macomber v. Doune, ubi supra, the court say that Welch v. Mandeville, ubi supra, was an action of cov"an order constitutes a good form of assignment, it enant broken, brought by Prior, in the name of Welch. being for the whole sum due or becoming due to the against Mandeville, who set up a release by Welch, to drawer, and it needs not to be accepted to make it au which Prior replied that Welch, before the release, assignment." The order was for one month's wages, bad assigned the debt due by reason of the covenant which as subsequently ascertained, amounted to $37.50, to him, of which the defendant had notice. The court but it was given as security for groceries furnished consider the effect of certain bills of exchange, and and to be furnished, and on the day of the service of say: “But where the order is drawn either ou a gen





eral or a particular fund, for a part only, it does not of a part of a fund or debt which will constitute ap amount to an assignment of that part, or give a lien equitable lien or charge upon it, and will be enforced against the drawer, unless he sonsents to the appro- in equity against the debtor or person holding the priation by an acoeptance of the draft," etc.; that “a fund. Palmer v. Merrill, ubi supra, may well rest creditor shall not be permitted to split up a single upon the first reason given for the decision. See Stearns cause of action into many actions without the assent v. Quincy Ins. Co., 124 Mass. 61, 63; 8. C., 26 Am. Rep. of his debtor; "and that “if the plaintiff could show 647. The decisions of courts of equity in other jurisa partial assignment to the extent of the bills, it would dictions are almost unanimous in maintaining such a not avail him in support of the present suit."

lien, where the assignment is for value, and distinctly The equitable doctrine now maintained by the Su-appropriates a part of the fund or debt, and makes the preme Court of the United States is shown by Wright sum assigned specifically payable out of it. v. Ellison, 1 Wall. 16; Christinas v. Russell, 14 id. 70; Without undertaking to decide what is not before Trist v. Child, 21 id. 441; and Peugh v. Porter, 112 U.S. us, and confining ourselves to the facts in the case, 737; 8. C., 5 Sup. Ct. Rep. 361.

which are that the debt remains unpaid, and the In Peugh v. Porter that court ordered that a decree debtor in his answer asks the court to determine the be entered that Peugh, subject to certain rights in the right of the different claimants, we think that there estate of Winder, was entitled to one-fourth of a fund should be a decree that the city of Newton pay to the by virtue of an assignment of one-fourth of a claim plaintiff $600, and that the remainder of the sum due against Mexico, made before the establishment of the from the city, after deducting its costs, be paid to claim from which the fund was derived, and before the Gilkey, assignee. The assigument was not made in fund was in existence, and declared the law to be that fraud of the law relating to insolvency. So ordered. “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."

NUISANCE-FIRE-PLUG IN HIGAWAY-WEARING In Robbins v. Bacon, ubi supra, the order was for

AWAY OF ROAD, the payment of the whole of a particular fund, and was held good.

ENGLISH COURT OF APPEAL, APRIL 17, 1886. The existing law of Maine is declared in Exchange. Bank v. McLoon, 73 Me. 498; S. C., 40 Am. Rep. 388, MOORE V. LAMBETH WATER WORKS COMPANY.* by an elaborate opinion, and the conclusionfreached is A fire-plug had been lawfully fixed in a highway by the dethat au assignment of a part of a cbose in action is

fendants. Originally the top of the fire-plug had been good in equity and against trustee process.

level with the pavement of the highway, but in conseIn England it is held that the particular fund or quence of the ordinary wearing away of the highway the debt out of which the payment is to be made must be

fire-plug projected half an inch above the level of the specified in the assignment (Percival v. Dunn, 29 Ch.

pavement. The fire-plug itself was in perfect repair. Div. 128); but the assignment of a part of a debt or The plaintiff, whilst passing along the highway, fell over fund is good iu equity. The present case is like Ex

the fire-plug, and was hurt. Held, that as the fire plug parte Moss, 14 Q. B. Div. 310, and a stronger case for was in good repair, ard had been lawfully fixed in the the plaintiff than Brice v. Bannister, 3 Q. B. Div. 569, highway, no action by the plaintiff would lie against the where, although the procedure was under the statute of defendants. 36 & 37 Vict.,ch. 66, the foundation of the liability was that the assignment was good in equity; and the case


CTION to recover damages for bodily injuries. at bar is relieved from the difficulties which induced Brett, L. J., in that case, to dissent; and Brice v. Ban

Winch (Edwards Clarke, Q. C., with him), for denister was affirmed in Ex parte Hull, 10 Ch. Div. 615. fendants. The present case also resembles Tooth v. Hallett, 4 Ch.

Waddy, Q. C., and Aspland, for plaintiff. App. 243, except that there the sums paid by the

Lord ESHER, M. R. This is a curious case. A firetrustees 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.

way; it was, so far as the evidence goes, put down In Appeals of the City of Philadelphia, 86 Penn. St.

with due care, and was in proper condition in the 179, it is conceded that the rule tbat an assignment of highway. It remained there, and it must be taken a part of a debt is valid prevails in equity between in

that the plug itself was kept in perfect order, and that dividuals, but the court refused to apply it to a debt

there was no defect in it. But the plug being in the due from a municipal corporation, on the ground that

highway, the roadway was worn away, so that the " the policy of the law is against permitting individ- plug. The plaintiff caught his foot against the plug,

roadway had got half an inch below the top of the uals by their private contracts to embarrass the prin- and fell down, and then he brings this action against cipal officers of a municipality. See Geist's Appeal, 104 Penn. St. 354. But there is no ground for any such

the water works company, and obtains judgment for distinotion in this Commonwealth.

a considerable amount. The question is whether the In New York the assignment of a part of a debt or

water works company are under those circumstances

liable. fund is good in equity, Field v. Mayor, etc., 6 N. Y.

Now the argument for the plaintiff really 179; Risley v. Phænix Bunk of New York, 83 id. 318;

amounted to this, that whoever puts into a highway S. C., 38 Am. Rep. 421; aud the same doctrine is main

that which becomes from any cause a nuisance or dantained in otber States, Daniels v. Meinhard, 53 Ga.

gerous to persons going along the highway, is liable to 359; Etheridge v. Vernoy, 74 N. C. 800; Lapping v.

make compensation if it occasions injury to any perDuffy, 47 Ind. 51; Fordyce v. Nelson, 91 id. 447; Bower

son. But to my mind that doctrine has always been v. Hadden Blue-stone Co., 30 N. J. Eq. 171; Gardner v.

applied only where a thing has been put without au · Smith, 5 Heisk. 256; Grain v. Aldrich, 38 Cal. 514; thority in the highway. If something is put without County of Des Moines v. Hinkley, 62 Iowa, 637 ; Canty authority in the highway, that of itself does not make v. Lutterner, 31 Minn. 239; First Nat. Bank v. Kimber.

the person putting it there liable at the hands of an inlands, 16 W. Va. 555.

dividual; an obstruction in a high way will not entitle From the examination of our cases it appears not to

an individual to bring an action. But if something is have been decided that there cannot be an assignment

* 17 Q. B. Div. 462.

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put in a highway without authority, and is left there, further, what is to be the condition of things if a 80 that it becomes that which is generally called a nui- company is compelled to put it down by act of Parliasance, but which is really an obstruction, and if a per- ment? It seems to ufe that the proper result under son, I awfully using the highway, falls over it, or is those circumstances is, that the road authority must otherwise injured by it, the person putting it in the take notice of the act of Parliament, and that they bighway must make compensation. But the water must keep the road fit for the public to pass along it, works company were certainly authorized by act of having regard to that which is in the road by virtue Parliament to put this plug in the highway. I infer and authority of Parliament, just the same as if it had that they were compelled to put it in the highway; been there before the road was made, so that the road because, although a great deal of argument was was dedicated subject to it. The act of Parliament brought forward to show that this was not a fire-plug, has said that the plug may be in the road, and the auto my mind it is clear as a matter of fact that it was a thorities must keep the road having regard to that fire-plug, whether it was originally put there as a fire- which may or must be there by authority of the act of plug or not; and I think the evidence clear that the Parliament. If that be true, the water works complug must have been originally put there as a fire- pany have done all that the statute obliged them to do, plug. Besides being used as a fire-plug, it was no and their whole obligation was imposed by statute, doubt used by the water works company as that which and no express liability was laid upon them in the is called an end plug, for flusbing the sewers. But a

statute; on the contrary, a' minor liability was laid fire-plug can always be used for flushing sewers, and I upon them, and nothing is to be implied from the act do not know of any act of Parliament which says that of Parliament under these circumstances. when the water works company are obliged to keep a If either party was in the wrong, it seems to me to fire-plug, they may not themselves use it for other have been the road authority. I think that no action purposes. There are always two keys to a fire-plug, will lie by this plaintiff against the road authority; one which is given to the fire brigade, another which but it does not follow that because no action will lie is kept by the water works company; and the water against the road authority, therefore he can maintain works company are brought into disgrace if their an"action against the defendants, who have done no turnkey is not in the way with the key before even wrong. I think that he cannot maintain an action the fire brigade come with their key. I believe that against the water works company under these circumthe water works company were compelled to put this stances. fire-plug in the highway; at all events it is obvious to It has been held that if we come to this conclusion my mind that it was adopted as a fire-plug, because it we must overrule Kent v. Worthing Local Board, 10 is proved that the fire brigade had a key of it.

Q. B. Div. 118. I do not think it necessary to say In this case the water supply is not in the hands of that we must overrule Kent v. Worthing Local Board, the road authority; the water works company and the supra. In that case the water supply was in the hands road authority are perfectly distinct; therefore the of the defendants, and they were also the local auquestion is whether the water works company are to be thority for keeping the road: they were the authority made liable for this accident. It was argued that they for both. It is true that in that case the valve-cover must be liable. Then it was asked, “But how are they was not out of order, and in that respect, it was like to prevent this mischief? If the road is worn down, this case; it was only the road which was out of order are they to mend the road?" It was answered: “No, with regard to the valve-cover. If the case cannot be they cannot mend the road.” Theu what are they to upheld upon the ground that the one authority was do? Why they must cut down the fire-plug; as the master of both situations, I respectfully differ road wears down, they must keep cutting down the from it, and think it was wrongly decided. It may be fire plug. That seems to be a curious liability to put that it can be upheld on that ground. My brother upon the water works company. One would think Liudley has pointed out a case extremely like Kent v. that the act of Parliament which obliges them or au- Worthing Local Board, 10 Q. B. Div. 118; it is Blackthorizes them to put this plug in the road, if it meant more v. Vestry Mile End Old Town, 9 id. 451. In that to impose upon them such a liability as that would have case a water-meter, which was the property of a water said so in direct terms; but the act of Parliament only company, and used for measuring the water supplied says that they are to keep the plug in repair. Some- by the company to the defendants, the vestry of a parthing was argued about whose property the plug be- ish, for watering the streets, was placed by the defendcame. I think that is immaterial. The act of Parlia- ants in a box of theirs sunk in the footway of one of ment allows the water works company to put it in the the streets and covered with an iron flap. The dehighway, and says that they are to keep in repair. fendants, as such vestry, were by section 96 of the It was in perfect repair, but it was the road which bad Metropolis Management Act (1855) the surveyors of been worn down.

highways, and by section 16 authorized to cause the Now it is said that if the fire-plug had not been in streets in their parish to be watered. Therefore so the highway the wearing down of the roadway was far as the watering and the keeping of the road in ornot sufficient to make the road so out of repair as to der were concerned there was but one authority. But render the authority having care of it iudictable. then in that case the cover of the water meter had That is true. Then we must see what the liabilities of worn away until it was quite smooth, and so had bethese two parties are. Now if the fire plug had been come slippery. Therefore something bad happened put down by authority before the road was dedicated there to the water meter; it was not in its original to the public and adopted by them, then, as is clear condition, but it had been allowed to be worn smooth. from the decision in Fisher v. Prowse, 2 B. & S. 770, In that case the defendants were held liable, they have the road authority and th

surveyor must keep the ing the control of both the roadway and the vater road in repair with regard to that plug, and if they supply. It is obvious to my mind that that case would allow the road to come into such a condition that the not of itself necessarily support Kent v. Worthing Loroad, having regard to the plug, is not safe, then they cal Board, 81pra,

because in Kent Worthmay be indicted. They must keep the road in repair ing Local Board, supra, there was nothing the matter having regard to it. If that is the law when the plug with the valve-cover, whereas in this case of Blackis put down before the road is dedicated, what is the v. Vestry of Mile End Old Town, supra, condition of things when it is put there after the road the cover of the water meter was out of order; it had exists, but is put there by authority of Parliament been worn smooth so as to become slippery. I do not and not merely by contract, not merely by leave? and think it absolutely necessary to say that we disagree

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with Kent v. Worthing Local Board, supra. It may statutory obligation are satisfied by putting down this possibly at some future time be upheld on the plug and keeping it in repair, and doing what the statground of the double anthority. If it cannot be up- ute requires as regards keys and other matters. Then held on that ground, I think it was wrongly decided. it is said that at common law, if any one maintains I do not say that this is the ground on which it was something in a highway, he must take care that it is decided, but I say that unless it can be upheld as a not a muisance, and does pot obstruct the traffic. I decisiou on that ground, I respectfully think that it think that as a universal proposition, that is not was wrong, and I am not prepared to follow it. true, as is shown by those cases where high roads have

In this case I think the water works company are been dedicated subject to obstruction, and I am not not liable.

able to find any authority which goes the length of deLINDLEY, L. J. I am of the same opinion, and I ciding that a person who is authorized or compelled will oonsider the case first of all upon the acts of Par- by act of Parliament to put a thing in the bighway, is liament, and secondly, with regard to the authorities bound to do more than the statute requires him to do. relied on by the plaintiff, upon which Day, J., decided Suppose, for example, the pipes of this water works in his favor.

company to be somewhat below the level of the surNow we cannot ascertain very accurately the his face, and a storm to carry the whole of the surface tory of this fire-plug; but having regard to the act of away, so as to leave their pipes uncovered and prothe company passed in 1834, and the evidence of one jeoting; I take it that the company could not be inof the witness08, I should infer, if it is open to me to dioted for a puisance for having the pipes so exposed, do so, that this plug, or at least the predecessor of although the pipes might be an obstruction to the . this plug, was put down in this spot under the provis- traffic. It appears to me however, apart from author. ions at the act of 1834. If I anı right in that respect, ity, that the plaintiff bas not shown that these deit was the statutory duty of this company to put down fendants have either by a matter of commission or a fire-plug somewhere about this spot; in other words omission neglooted any duty which is cast upon them this fire-plug would have been put there in pursuance by law. of the statutory duty. If it was not put down under Then it has been argued that there are cases which that authority, it would be put down under section 38 show that the company are liable, and in particular of the Water Works Clauses Act (1847), 10, 11 Vict., ch. there is the case of Kent v. Worthing Local Board, 17, or uvder the Metropolitan Fire Brigade Act (1865), supra. Now that

unquestionably in some 28, 29 Vict., cb. 90, $ 32. Be that as it may, it was con. respeots was extremely like this. In the first place, I sidered at all eveute that the old plug was lawfully in will observe there that the decision of the court prothe highway, and had been there for many years. In ceeded upon a decision in the Privy Council in Bor1880, or thereabouts, the old plug was removed and ough of Bathurst v. Macpherson, 4 App. Cas. 256, wbich the new plug was put in its place.

I do not think myself warranted the inference which We are invited by the counsel for the plaintiff to the court drew from it. In Borough of Bathurst v.Macsay that the evidence authorized the inference that pherson, supra, the defendants were held liable for & this plug was not properly fixed at the time when it drain which was out of repair, and which it was their was put down, that is to say, that no reasonable allow- duty to keep in repair, and which led to the ance was made for that which would obviously take accident on the highway. Of course if the drain was place, namely, a certain amount of wear and tear in out of repair, and by reason of that there was a hole the asphalt. If that had been made out, the plain- | into wbich some one fell, there could be no defense to tiff's case would be very different from wbat it is; but the action. But here we are assuming tbat there was I cannot, from the evidence, arrive at that conclusion. nothing the matter with the plug, except the fact that On the contrary, the evidence appears to me to estab- it projected above the level of the road. lish beyond doubt that this plug, when put down in There are some other cases which would enable the this road of aspbalt, was put down in every sense plaintiff to maintain this action if this plug had been properly. There was some inspection on the part of the unfit for its position, the road being in the state in road surveyor. The plug itself was a trille below the which it ought to have been. For example, in the dead level of the road; some allowance was made, and case referred to by the master of the rolls, Blackso far as we can see, a reasonable allowance was made, more v. Vestry of Mile End Old Town, supra, the to provide against all unforeseen circumstanoes, and I same authority had control over the road and over the do not think from the evidence that the contention flap which protected the water meter, the flap itself that there was negligence in putting in the plug can having become worn away so as to become slippery. be supported. Now it is admitted on all hands that There it was held that an aotion would lie against the unless that contention can be sustained, no fault can defendants upon the ground that they were maintainbe found with the plug; the plug itself was not out of ing in the bighway that which of itself was dangerous, repair, and there was nothing the matter with it. It the rest of the highway being in the condition in had not grown; it bad not changed in any way. The which it ought to have been. I do not feel myself history of the matter is that the asphalt road was pressed in any way by that autbority. But in Kent worn away, and the result was that the fire-plug stood v. Worthing Local Board, supra, there is cerup three-eighths of an inch above the level of the pave- tainly a difficulty, because the valve cover was in ment. The plaintiff unfortunately fell over it, and repair, but projected a little above the road. This was very seriously injured.

When we look at the distinction-and it appears to me, I coufess, to be a duty cast on the water works company by the acts of distinction which is well worth considering-is this, Parliament which related to them, and more particu- that in the case of Kent v. Worthing Local Board, larly by the Water Works Clauses Act (1847), we can- supra, the same authority had control over the bighnot find any thing more extensive than the obligation way and over the valve cover; and although the dewhich is cast upon tbem by the 39th section, to "re- cision did not proceed upon this ground, the importnew and keep in effective order every such fire-plug.” ance of it appears to me to arise in this way: we all Then there are provisions about keys which I need not know that a parish and a surveyor could not be sued notice. Nothing in the act expressly or by necessary at law for an accident arising from mere non-repair, implication either compels the company to repair the and that dootrine, so far as the parish is concerned, road, or authorizes them to repair the road, and I cau- rested upon the ground that there was no one to sue. not find that they have committed any breach of any The parish might be iudicted, but was not liable to an statutory obligation. Their statutory right and their action.

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Gibson 0. Mayor of Preston, L. R., 5 Q. B., 218. de- wrong. I can see no actionable wrong that they have
cided that that common-law dootrive applied, even committed.
although the road authority was incorporated, and Now whether the road authority could be made lia-
therefore was capable of being sued in an action at ble it an action had been brought against them, it is
law. It was held there, that upon the construction of not necessary for me to express any opinion; but
the Public Health Acts, the local board, although it speaking for myself, I should be inclined to think,
was capable of being sued, was no more liable for ac- on the authority of Gibson v. Mayor of Preston,
oidents of this kind than the parish or the surveyor. supra, that they could not have been made liable.
It may be that the principle of that case does not ap- That case was decided some time ago, and has been
ply to the road authority where they have a control, consistently acted upon aver since.
pot oply over the road, but over the thing which cre- The judgment of the court below proceeded upon
ates a puisance; in other words, it may be that Gibson the authority of Kent v. Worthing Local Board, supra.
V. Mayor of Preston, supra, is somewhat anoma- That was an authority whioh was relied upon. The
lous, and that it is not to be extended to cases facts in that case, as they appear to me, are similar to
which are not exactly like it. If Kent v. Worthing these. The iron cover of a valve connected with a
Local Board, supra, is not to be distinguished water main was properly fixed in a highway by the
from this case upon that ground, then in my defendants, but in consequence of the ordinary wear-
opinion it is erroneous. But I am not prepared to say | ing away of the highway, the valve cover projected an
that it cannot be so distinguished, and am not prepared inch above it. The plaintiff's horse, using the bighway,
therefore now to overrule it. It appears to me that stumbled over the valve cover and was hurt. In an
when we look into the authorities we find none of action against the defendants, who were both the
them touching this, and that to dooide in favor of the water authority and the highway authority, for the
plaintiff would be to make the water company liable injury to the horse, it was held that it was the duty
for a breach of duty by other persons. I am aware

of the defendants to make such arrangements that that this will be rather a bard decision on the plaintiff, works under their care should not become a nuisance for it Gibson v. Mayor of Preston, supra, was right to the highway, and that the plaintiff was entitled to and I do not say that it was wrong--then the plaintiff recover. The facts therefore were nearly similar to cannot sue the road authority; but it does not follow these now before us, and I am unable to distinguish that because the road authority-who, in my opinion,

that case from this, unless there is any thing in the the wrong-capnot be sued, therefore the water fact that the water authority and the higbway authorworks company, who have done no wrong, are to be ity were the same body; in the present case the water held liable. I think therefore that the judgment authority are the only defendants, and are sued alone. ought to be for the defendants, with costs here and I do not think myself there is any tbing in that distinobelow.

tion, and not thinking that there is any thing in that

distinction, I feel a difficulty in following that case. In LOPES, L. J. This case raises a difficult and an im.

point of fact I cannot see how this court can avoid portant question. The facts of the case, I think I am over-ruling it; because it is to be observed tbat the justified iņ saying, are pretty well admitted.

decision did not proceed at all upon the fact that the The Pre-plug, beyond all question, had been law

water authority and the highway authority were the fully placed where it was; it was proper in itself; it same person 8. The words of Stephen, J., who delivwas properly fixed; at the time of the accident it was ered the judgment of himself and Field, J., are these in proper order. With regard to tbe asphalt path, (10 Q. B. Div. 123): "In the words of the judgment in that too was in perfect order; only its level had been Bathurst v. Macpherson, supra, the duty was cast roduced by ordinary wear and tear, so that the effect upon them of keeping the artificial work which they was that the plug was three-eighths of an inch higher bad created in such a state as to prevent its causing a than the level of the path. Therefore nothing was danger to passengers on the highway, which but for wrong either with the fire-plug or with the path. The such artificial construction would not have existed." plaiutiff bowever, when walking along the path, fell Now if that is correct, every word of it applies here. over the plug and was seriously injured, and has I cannot adopt it. The court seems to have proceeded brought this action, and obtained damages against the upon the authority of two cases-White v. Hindley defendants.

Local Bourd, L. R., 10 Q. B. 219, and Borough of It has been argued that under these circumstances Bathurst v. Macpherson, srpra. It seems

to the defendants, the water works company,lare liable that those cases were not authorities for the copoluto the plaintiff. I take it that the defendants cannot sion at which the Queen's Benob Division arrived, bebe made liable, unless they have been guilty of some cause in the case of White v. Hindley, supra, the breach of duty. I am at a loss to see any breach accident was caused by & defective grid, which of duty of which they have been guilty; 80 far was used partly to stop the hole which otherwise would as the statute is concerned, clearly there is no breach have been left in the road; the grid stood very much of duty. The 39th section of the Water Works Clauses in the position of the fire-plug in this case, which it is Act (1847) provides that they are to renew and keep admitted was in a perfect state. tbe plug in effective order. It cannot be said here Again in Borough of Bathurst v. Macpherson, that this fire-plug was not in effective order, because supra, the accident was caused by the defective as I have already said, there was nothiug the matter state of a barrel draiv, which was in such a state that with it.

the adjacent soil of the road washed into it and made Then at common law oan it be said, that there was a hole. The drain itself therefore, the property of the any obligation upon them to keep this plug so as to defendants, was iu a defective state. The drain there accommodate it to the varying level of the path? Istood in the same position as the fire-plug here, which know of no authority for that contention except the admittedly had nothing wrong with it. case of Kent v. Worthing Local Board, supra, with I myself caunot see any thing in the distinction which I will deal presently.

which has been suggested between this case and Kent It may be that the plaintiff has suffered a wrong for v. Worthing Local Board, supra; and so far as I am which there is no remedy; but still the plaintiff, in concerned, if our decision is right now, I think that order to maintain a judgment in his favor, must make that case must be overruled, and ought to be overruled. out that the defendants have committed an actionable Judgment for the defendants.


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