Meares v. Com'rs of Wilmington.

new bonds are additional securities for the discharge of all such duties as have not been performed at the time they are entered into, as well such as have been com. menced, but are not completed, being "in fieri," as those which have not been entered upon. In this case the du ty of collecting, receiving and accounting for the taxes collectable in 1847, had been commenced, but was not completed, and it falls within the words of the bond, and within the principle above announced.

The defence of a former judgment is wholly untenable. The parties, in this action, are not the same-the bond is not the same; and, by the case agreed, the damages, to be recovered in this action, are not the same with those, recovered in the other action, being merely the excess above what is covered by the former judgment, so that even if that judgment had been satisfied, there would be no bar.

PER CURIAM.

Judgment affirmed.

CATHARINE G. MEARES vs. THE COMMISSIONERS OF THE TOWN OF WILMINGTON.

A municipal corporation, which has authority to grade the streets, is liable to any damages which may accrue to an individual from having the work done in an unskilful and incautious manner.

An action in tort will lie against a corporation.

Appeal from the Superior Court of Law of New-Hanover County, at a Special Term in January, 1847, his Honor Judge MANLY presiding.

This was an action on the case, to recover damages of the defendants for causing one of the streets in the town

Meares v. Com'rs of Wilmington.

of Wilmington to be cut down to the depth of four or five feet, by which the earth of a certain lot, lying on the said street, was caused to fall, bearing with it sundry brick walls on the said lot, and rendering it necessary to the plaintiff to be at great expense in reconstructing said walls, and either to grade down the said lot to its former relative level with the street, or construct additional walls and steps, to render it as valuable to the plaintiff as before the digging.

The proof was, that the lot in question was a dwelling house lot, which had been occupied for the purpose of a dwelling house lot, with a house upon it, between twenty and thirty years, by the plaintiff and those under whom she claimed: That a fire occured, by which the said dwelling house, in common with many others in the town of Wilmington, was consumed, leaving a part of the walls of the house, which had been built for more than twenty years, still standing, and also a brick wall or fence which had been built some seven or eight years; and that, by the digging, which had been done under the direction of the defendants, the earth of the lot, which was a body of deep sand, had given away, and the walls of both kinds above mentioned had fallen, and that it had become nccessary, to enable the plaintiff to use the said lot as before, to rebuild said walls, and also to grade down the said lot, or to build other walls to sustain the embank. ment, and put steps thereto; and that, to make the repairs and additions thus rendered necessary, the plaintiff had been compelled to lay out between fifteen hundred and two thousand dollars.

The defendants shewed, that they, being Commissioners of the town of Wilmington, deemed it expedient to grade Chesnut and Front streets, shortly after the fire above mentioned, as they contended they were empowered to do by sundry Acts of Assembly, passed in relation to the town of Wilmington; and had passed an order according

Meares v. Com'rs of Wilmington.

ly to grade Front street; and that, in pursuance of said authority and order, persons under their direction had proceeded to cut down Front and Chesnut streets, at the south eastern intersection of which streets the plaintiff's lot stood, as described above. And they contended-1st. That the plaintiff was not entitled to recover against them, thus acting under public authority, whether due caution was used or not.

Secondly. That due caution had been used, and the injury to the plaintiff, if any, had been the consequence of washing rains and not the natural result of the defendants' acts.

Thirdly. That the plaintiff, had, in fact, been benefited and not injured by the grading of the streets, in doing which the digging complained of by the plaintiff had been necessary.

Fourthly. They insisted that the plaintiff was only en. titled to damages for the destruction of such superstructures as had been standing twenty years, if to any dama. ges at all.

The plaintiff insisted that the acts of the defendants were altogether unlawful, and that no proper authority had, at any rate, been given to grade Chesnut street; and if lawful, it had been done in so unskilful or incautious a manner as to produce the injury complained of, and that she had sustained loss thereby to the amount stated above or more.

His Honor charged the jury, that the acts of the defendants were lawful, provided they were done with ordinary skill and caution, and it was for the jury to say, whether such ordinary skill and caution had been used; if they had not and injury resulted to the plaintiff for want of such ordinary skill and caution, she was entitled to recover, provided, further, that her injury had been the direct consequence of such want of skill or caution; for, if the fall of her lot or walls had been the consequence of

Meares v. Com'rs of Wilmington.

high winds or washing rains as had been urged at the bar, and not the mere natural results of the defendants' want of skill or caution, plaintiff would not be entitled to damages. But that, if in the main, they should find for the plaintiff, they ought to consider further, whether, upon the whole, the plaintiff's lot had been increased in value by the defendants' acts to the full amount of her injury, and, if so, she would not be entitled to damages; and if the injury, if any, was greater than the increased value given to the lot by the defendants, then they should deduct such increased value from the amount of injury, and give to the plaintiff a verdict for such difference.

A verdict having been rendered for the plaintiff for five hundred dollars damages, and a rule for a new trial having been discharged, the defendants appealed.

Strange, W. H. Haywood, Meares and Iredell, for the plaintiff.

Badger and W. A. Wright, for the defendants.

PEARSON, J. We think the charge of his Honor was fully as favorable to the defendants, as they had a right to ask. The whole of it is in their favor, except the instruction: "That if, in doing the work, ordinary skill and caution had not been used, and the plaintiff was damaged thereby, she was entitled to recover."

It is true, his Honor did not instruct the jury, what would amount to ordinary skill and caution; but no such instruction was asked for; and the defendants have no right now to except, because it was not given.

Our consideration is, therefore, confined to the single instruction above stated.

His Honor instructed the jury, that the acts of the defendants were lawful, provided they were done with or. dinary skill and caution. He assumed that the defendants, as commissioners, were vested, by the several acts

Meares v. Com'rs of Wilmington.

of the Legislature upon the subject, with full power to cause the grading to be done, and to levy a tax upon the citizens of the town to defray the expense; and he put the plaintiff's right to recover, upon the question, whether ordinary skill and caution had been used.

If the defendants had caused the grading to be done with ordinary skill and caution, and, by the erection of a substantial wall as the excavation proceeded, had so managed, as to prevent any caving in of the plaintiff's lot, so that the damage, if any, would have resulted, not from a want of ordinary skill and caution, but merely from the fact, that, by reason of the grading, the lot was left higher above the level of the street, and, so, was more difficult of access, and, therefore, less valuable, the case would have presented a very grave question; and we are strongly inclined to think with his Honor, that the plaintiff would have been without remedy; for, as it was lawful for the defendants to do the work, if it was done in a proper manner, although the plaintiff was damaged thereby, it would be "damnum absque injuria,” and give no cause of action. To subject the defendants to an action for exercising in a proper manner power vested in them, by the sovereign authority, for the convenience of the public, would seem to involve an absurdity; hence if the property of one is made less valuable by being left too high, and that of another is made less valuable by being left too low, the parties must submit to the loss for the convenience of the public; unless the law, authoris. ing the act to be done, contains some provision for making compensation, as, in justice, it should do, whenever the work, although done in a skilful and proper manner, will be productive of special damage to an individual; but there can be no provision made for damage, which is the result of a want of ordinary skill and caution in doing the work, as it cannot be anticipated. And this furnishes a strong argument for giving an action to recover damage,