From the manner in which this case was presented to our notice, I thought it was one of the most important ever brought under the consideration of the Court, and that the plaintiff had to complain of a most grievous injury. It appears, however, that the only injury which the plaintiff has sustained, is that three out of six accesses to his house have become useless. It is conceded that the trustees had a right, in the exercise of their discretion, to remove all obstructions to the public road. If so, and they have not acted arbitrarily or wantonly, then it is perfectly clear that vo action is maintainable. The case of Leader v. Moxton seems to be quite consistent with the decisions in Sutton v. Clarke, and The Plate Glass Company v. Meredith, because in that case, according to the report in Sir William Blackstone, the decision of the Court proceeded on the ground that the commissioners had grossly exceeded their authority by an unnecessary act, whereby the greatest possible inconvenience was experienced by private individuals. In this instance it does not appear to me that these trustees have exceeded their power. It was left as a question to the jury, whether they had acted arbitrarily, wantonly, or improperly. The jury were of opinion that they had not, and that being the case, and considering that these trustees had a public duty to perform, I am of opinion that they are not liable to an action.

HOLROYD, J.-It is a general rule of law, that where a public officer is acting in the discharge of his duties, no action will lie against him for the consequences of his acts, unless he either exceeds or abuses his authority; and that is a sound rule, because to punish a man for a result produced by his performance of a duty imposed upon him by law, would be equally absurd and unjust. The defendant in this case has been guilty of no excess or abuse of his authority, but has acted properly and bonâ fide in the dis. charge of his duty, and on that short ground I am clearly of opinion that this action will not lie against him.

[ocr errors]

1824. LittleDALE, J.-This action is not maintainable. I

agree in the maxim“ sic utere tuo ut alieno non lædas;" but BOLTON

it does not apply to this case, because the defendant merely CROWTHER. acted in discharge of a duty imposed upon him by the act

of parliament. That act was past for the benefit of the public, not of the trustees, and as it does not provide for any compensation to those who may be damnified by its operation, the trustees are not liable to make any. It does not appear that the defendants entered upon the plaintiff's land in the progress of the work, though I am of opinion that they would not have been liable as trespassers even if they had done so. To the cases already cited, and which are quite decisive of the present, Jones v. Bird(a) may be added, as supporting the same principle, because there it was held that the plaintiff might recover only upon the ground that the defendants had been guilty of negligence.

[blocks in formation]


May 8.

This was an action against the defendant for killing a cerfor striking tain cow of the plaintiff. The declaration stated that the plaintiff's cow divers blows, defendant struck the plaintiff's cow divers blows, by reason whereof the animal died.

whereof she died. At the last Herefordshire Assizes, beProof, that de- fore Park, J., it appeared that the defendant, having beaten beaten the cow the plaintiff's cow unmercifully, the plaintiff, in order to put unmercifully, an end to the animal's sufferings, put it to death. It was oband that plaintiff

, to shorten jected for the defendant that this was a variance, for non the animal's miseries, put it constat that the animal died of the blows given by the deto death : fendant. The objection was overruled, and the plaintiff had Held, after verdict, no va

a verdict. riance.

Twiss now moved to enter a nonsuit, and renewed the objection; but


Per CURIAM. This objection is cured by the verdict. No doubt the jury thought that the beating which the animal received, made her death necessary, and that it was an act of mercy to shorten her sufferings by death.



Rule refused.



May 8. ASSUMPSIT on a policy of insurance for 30001, on the Where a ves

sel was so daship Commerce, at and from Quebec to Bristol, or the ship’s maged by a port in Great Britain. Loss averred to be by perils of the sea peril,

that seas. Plea, non assumpsit, and isue thereon. At the trial render her seabefore Abbott, C. J. at the London Adjourned Sittings after worthy it

would cost as last term, it appeared in evidence that the Commerce, of the much to reburthen of 372 tons, having taken in a full cargo of timber, was originally

pair ber as she sailed from Quebec on the 8th July, 1823, in good order, worth, and the and with a sufficient crew, and proceeded down the river her to a purSt. Lawrence, destined for the port of Brisiol. On the chaser who

partially re10th July the pilot quitted the ship off the Isle of Bie, paired her, about 100 miles below Quebec, where pilots are usually dis- and sent her

upon a voyage charged. On the 12th she was off a place called the Paps which she ne

ver completed of Matan, which are high hills, about twenty miles from the in conseshore on the south side of the mouth of the river St. Law- quence of her

infirmity : rence, and about two hundred miles from Quebec, where the Held, first, sea is as boisterous as in the ocean. A thick fog came on, derwriters

that the unwith the wind from the eastward, blowing a fresh gale, and were liable as

for a total loss, a considerable sea was running. The ship took in sail, and though the continued tacking under easy sail, the wind being from the vessel remainE. to E. N. E. until the next day. On the 13th, about half- at the time past eight o'clock A.M. she struck, about five miles on the she was sold;

and second, westward or Quebec side of Matan, not a quarter of a mile that notice of

abandonment from the shore, which was invisible from the thickness of the fog. The force of the first shock was so great, that the sary to enti

tle the owner rudder was unshipped, the lower part of the rudder case torn to recover.

was unneces

[ocr errors]


out, the pintles bent, and both pumps hove up, one sixteen,

and the other eighteen inches, from their proper places. CAMBRIDGE

The vessel went on her larboard side, and took the ground
ANDERTON. when the tide began to ebb. Every exertion was made by

the crew to keep her free, in the hope that she might be got
off when the weather moderated. At low water, the gale
increasing, the sea beat over her and made her rock like a
cradle. She began to fill with water, and the crew were
obliged to take to their boats for the preservation of their
lives. The captain went in his boat in search of assistance,
but, from the desolate situation of the place, was unable to
procure any. On the morning of the 15th, the weather be-
ing moderate, the captain went on board, and found that the
keel had gone fore and aft, and pieces of it were washed on
shore, the stem and gripe were gone, and the ship was
bilged, hogged, and twisted in such a manner, that he con-
sidered it impossible to make her seaworthy. After order-
ing the mate to unbend all the light sails, he went to Matan,
a village of about six houses, occupied by some pilots and
fishermen, to try if he could procure assistance; but all the
help he could obtain was a schooner of about fifteen tons
burthen, with a crew of three or four hands; but judging it
imprudent to haul the ship off the rocks, if it were practica-
ble, with such means, and apprehending that if it came on
to blow hard, the ship would, in the position she lay, be
beaten to pieces, he determined, after having removed the
spare sails and stores into the schooner, to return himself to
Quebec, and advise with the merchants to whom he was ad-
dressed what was best to be done under all the circum-
stances. On the 24th he arrived with great difficulty in an
open boat at Quebec, and after a consultation with the mer-
chants to whom he was addressed, and the resident agent of
Lloyd's, it was deemed expedient to call a survey, and sell
the vessel to the best advantage. Three experienced per-
sons were then appointed to make a survey, and accordingly
they went down to the vessel, and after a careful examina-

[ocr errors]


tion they gave it as their opinion, that the expense of get 1824. ting her off the place where she then was, if it could be

CAMBRIDGE accomplished, and repairing her, would far exceed hér value when repaired; and taking all the circumstances into ANDERTON. consideration, and from every appearance of the vessel, they judged that for the benefit of all parties concerned, she should be publicly advertised for sale at Quebec, and sold at the place where she then lay. Accordingly she was advertised and sold by public auction on the 4th August to a ship builder at Quebec, who purchased the hull, tackle, stores, &c. at the price of about 1000l. including the ship's register. The purchaser got her off the rocks, and she was towed in about seven weeks to Quebec by a schooner part of the way, and the remainder by a steam vessel. He then put her into a state of repair, the expense of which amounted to about 1,0001. Thirty men were employed night and day upon her for about three weeks, at the end of which time she was got off the stocks, and took in a cargo of timber for Great Britain. In November she put to sea, but when she got into the Gulph of St. Lawrence she became leaky, and drove on shore on Prince Edward's Island, where she was totally lost, and several of her crew were drowned. It appeared that seyeral of the crew who had been hired by the purchaser refused to sail in her, and those who went, had been hired at extraordinary high wages. The captain and the mate both deposed that when the vessel was repaired as above-mentioned, they would not have trusted their lives in her. One of the seamen hired upon the voyage, said he was obliged to leave her after she had put to sea in consequence of her leaky state. At the time he left her, she was full of water. It was proved that it would have cost 3,000l. to render the vessel seaworthy, exclusive of the expense of getting her off the rocks, &c. The present action was brought for a total loss, giving the underwriters credit for the amount at which the vessel was sold. The plaintiff had neglected to abandon to the underwriters. It was contended on the part of the defendant, first,

« ForrigeFortsett »