c. 104. Merchant Shipping Act 1854, 17 & 18 Vict. | If the plt. had agreed to that offer he might have rcovered it; but, as he would not, he cannot rom This was an action for wages alleged to be due to upon the account stated, nor as for money had mi the plt. as a seaman, and also for money had and re-received, as there was no evidence of any specife se ceived by the deft. for the plt. as for salvage. The received or due to the plt. The course is pointed deft. pleaded never indebted. The case was tried by the Merchant Shipping Act for salvors to ap: 1. before the Secondary of London, when a verdict was case of disputes as to salvage, and that the pit. st directed by him to be entered for the deft. The plt.'s have pursued. claim consisted of two items-one 177. 10s. for salvage, the other 27. 18. 2d. for wages between the 20th Jan. and the 6th Feb. The plt. was a seaman, and had assisted in towing a vessel in distress into some port, and he claimed as one of the salvors a portion of the sum of 60%, money awarded as for salvage by justices under the Merchant Shipping Act, 17 & 18 Vict. c. 104. It appeared that, during the voyage, the plt. had been called upon, in consequence of the loss of one of the erew, to perform additional services, for which the captain agreed to pay him 5s. per month as extra wages. The plt. was discharged on the 20th Jan., and a promise made that his written discharge, without which he could not enter upon a fresh engagement, should be sent to him the following day; it was not, however, sent until the 6th Feb. The plt.'s wages were paid to him up only to the 20th Jan., the extra 5s. per month were not paid. The Secondary ruled at the trial that the plt. could not recover the 21. 1s. 2d. as wages. As to the salvage, the Secondary directed the jury that, as no portion of the plt.'s share had been ascertained, money had and received would not lie. Joyce now moved for a rule to show cause why there should not be a new trial on the ground of misdirection. The justices having directed the sum of 607. to be paid as salvage, the plt., as one of the salvors, was entitled to his fair proportion of it from the owner. [WILDE, B.-Is not this a question rather for the Admiralty Court than for a jury at common law? How could a jury apportion it? POLLOCK, C. B. referred to the case of the Columbine, 2 Rob. Adm. Rep. p. 186, and to the Merchant Shipping Act 1854, 17 & 18 Vict. c. 104.] A seaman entitled to a portion of salvage could do nothing under the Merchant Shipping Act until the owner has paid the money over to the receiver according to sects. 466, 467, 468. The jury could divide the 607. and easily ascertain the plt.'s proportion of salvage due to him. [POLLOCK, C. B.-Whenever a dispute with respect to salvage arises in the United Kingdom between the owners and salvors as to the amount of salvage, and the parties to the dispute cannot agree as to the settlement of the claim by arbitration or otherwise, if the suin claimed does not exceed 2007., the dispute is to be referred to justices as provided for by sect. 460. Maude and Pollock on the Law of Merchant Shipping, chap. 10, was also referred to.] POLLOCK, C. B.-I think there should be no rule. The application was made on two grounds-one in reference to the 21. 1s. 2d. for wages claimed from Jan. 20th, when the deft. was dismissed, to the 6th Feb., when he received the certificate of discharge. It seems he performed extra service, for which he was to have been paid 58. a month, but when paid his wages on the 20th Jan. he was induced or compelled in some way or other to abandon that. Perhaps in some other form that may be insisted on, but not in an action for wages between January and February. As to the salvage, looking at the Act of Parliament, the Merchant Shipping Act 1854, that has been referred to, I am of opinion this case is otherwise provided for, and the plt. cannot call upon a jury to apportion the amount of salvage between the crew and return a verdict for the plt. for what he may be thought entitled to. It appears there was a letter from the deft. produced stating that the salvage had been apportioned, and desiring to know if the plt. would take part of it as a sum named. The plt. would not, but goes to a jury. WILDE, B.-This is essentially a matter of Admini jurisdiction, and no authority can be found wh recognises any right in a jury to apportion the am of salvage for service among salvors. It is against u principle to require a jury to make such a distribut The attempt is quite new, and would, if success": have a very mischievous tendency; it would be act on the discretion of a jury without evidence to gat their coming to any proper conclusion. As to Merchant Shipping Act, it is divided into parts, title and division of the subject-matter of each, among them remedies of salvors in cases similar to t present. The plt. should have adopted the course of p cedure pointed out by the Merchant Shipping where the rules of the Board of Trade as to the tribution of salvage would be applied and justice d to all parties. To sustain a count for money had si received the court must see that some precise sum v due from the deft. to plt., which was not the case h The offer of the sum made by the deft. to the plt. accepted by him, or agreed to be accepted, s therefore there was no account stated. I st opinion therefore the plt. is not entitled to recover this action, and that no rule should be granted. Rule refused The other learned Judges were sitting in the Co of Criminal Appeal. [Note.-See Newman v. Walters, 3 B. & P. §12) Tuesday, May 6. MAYALL . HIGBEY. Photographic portraits-Making copies of borrel photographs-Selling such copies- Injunction restrain the sale of copies. The plt. lent one Mr. T., proprietor of e paper, a number of photographic portraits t engraved and published with his newspaper. having become bankrupt, his assignees sold to th deft. the plt.'s photographic portraits, from vis the deft. made negatives, and from these se copies of the plt.'s original portraits in a redes size. In an action by the plt. to recover the orig and for an injunction to restrain the sale of copies made: Held, the plt. was entitled to recover the origiasi, their value, and to the injunction for restraining sale of any copies made. The plt. and deft. are photographic artists. T plt. some time since lent to Mr. Tallis, formerly proprietor of the Illustrated News of the Wors large number of photographic portraits of the brities of the day, for the purpose of having *** engraved and published with that paper. Tas came bankrupt, and the officer of the court, by 3 directions of the assignees, sold the photographs to deft., who took reduced copies of them in various form and sold them. This action was brought for their ful detention, &c., and asked for an injunction restrain the sale. Declaration stated, for that the deft. wrong and unlawfully took and kept possession of the p goods, that is to say, photographic portraits; and the said goods continued to be the property of the and were not the property of the deft., and were s fully and improperly in his possession, and wh plt. was of right entitled to prevent, by the injunction hereinafter claimed, the deft, from usure same, by making therefrom, and photographically printing x.] YOUNG v. DAVIS AND ANOTHER. [Ex. negatives obtained therefrom, reduced or other | sustained." Pictures may be substituted for literary leas:-1 (to the first count). Not guilty. 2 (to first t). That the said goods were not, nor were, nor was of them the goods of the plt. 3 (to first count). as to the claim of a writ of injunction deft. says the said goods were not wrongfully and improy in the possession of the deft. as alleged. 4 (to count). And as to the said claim of a writ of nction, deft. says that the plt. was not of right tled as therein by him alleged. And as to the ond count-5. That he did not detain the said ds as therein mentioned. 6 (to second count). at the goods therein mentioned were not, nor were, was any of them the goods of the plt. as alleged. Replication joining issue. The cause was tried before Pollock, C.B., at Guild1, when a verdict was entered for 40s. on the first nt, and 25. on the second count; the point reved as to whether the plt. was entitled to recover 7 damages on the first count and to an injunction the second count to be reduced in respect of those be returned. A rule nisi having been obtained to aside the plt.'s verdict on the first count and enter For the deft., pursuant to leave reserved, and on the and that the right alleged and the right to inaction was not proved, M.Smith, Q. C. and Aspland contra, called upon by the Court to support the rule.-The plt. was not entitled to damages on the first count or to an injunction. The plt. had not shown that he had the exclusive right of publishing copies of the portraits. He had lent them to Tallis for the purpose of their being engraved, and, after that, any one might copy and publish them. The plt. was not entitled to an injunction to the extent prayed, as it would prevent the deft. from selling negatives which were his own property, and because the plt. had recovered damages in respect of that very matter. POLLOCK, C. B.-Although the negatives may con- By the COURT.-The rule must be discharged; the Jan. 24 and 25. YOUNG v. DAVIS AND ANOTHER. Plt. walking on the highway, on coming to a part of Vaughan Williams showed cause against the rule.- said: oubted right at common law to the piece of paper n which his composition is written, and to the copies vhich he chooses to make of it for himself or for thers. If he lends a copy to another, his right is lot gone; if he lends it to another under an implied undertaking that he is not to part with it or publish t, he has a right to enforce that undertaking." And Erle, C. J. there also says: "The author has re medies for the wrongful abstraction of copies. He may prevent publication, he may acquire back the copies wrongfully made, he may sue for damages if any are Held (making the rule absolute for a nonsuit), that the was not maintainable at common law against a Vartnell.c. Tyde Commissioning I M'Kinnon v. Penson, 8 Ex. 319, 22 L. J. 57, M. C.; | joint surveyors of the highways for that parish, mi in error, 9 Ex. 609, 23 L. J. 97, M.C. was conclusive of and governed the present case. Davis v. Curling, 8 Q. B. 286, 15 L. J., N. S., 56, Q. B.; Couch v. Steel, 3 E. & B. 402, 23 L. J. 121, Q. B.; and Henley v. Mayor of Lyme Regis, 5 Bing. 91, 6 L. J. 222, C. P.; in error, 3 B. & Ad. 77, 1 Bing. N. C. 222, commented on and distinguished. Declaration. For that before and at the time, &c. defts. were the joint surveyors of highways of and for the parish of Alkerton, in the county of Oxford, a parish maintaining and liable and bound to repair and keep in repair its own highways, duly appointed in that behalf; nevertheless defts., not regarding their duty in that behalf as such surveyors, conducted themselves so negligently, improperly and wrongfully in that behalf, that by and through their (the defts.') said negligence, improper and wrongful conduct as such surveyors in that behalf, a certain public and common highway, called and known as Alkerton-hill, of and in the parish aforesaid, in the county aforesaid, which the said parish was then liable and bound to repair, and keep in repair, and whereof defts. then had, as such surveyors, the survey, care, and superintendence, and which it was then their duty as such surveyors to repair and keep in repair, was negligently and wrongfully suffered and permitted by the defts., before and upon the 19th Nov. 1860, to be, and become, and continue, and the said highway did then become, and then was, and continued out of repair, and foundrous, and in a state and condition dangerous for foot-passengers passing along the said highway and the footpath thereof; and a certain hole, dangerous to foot-passengers, was then negligently and wrongfully suffered and permitted by the defts., as such surveyors, to be, and the same then was, in the said highway, uninclosed and opened at the end of the footpath of the said highway, so that the said footpath terminated abruptly and dangerously to foot-passengers at the said hole, and the said hole was then negligently and wrongfully suffered and permitted by defts., as such surveyors, to be, and the same then was left, after daylight had ceased, without any light or other means whatsoever, although means were necessary to warn passengers along the said footpath of the said hole, and without any inclosure of the said hole, or any other means whatsoever, although means were then requisite and necessary, to prevent passengers from stepping, slipping, or falling from off the said footpath into the said hole, by reason and in consequence whereof plt., on said 19th Nov. 1860, while lawfully walking upon and along the said highway and the said footpath thereof, after daylight had ceased, and without any want of due care on his part, stepped and slipped from off the end of the said footpath into the said hole, and fell into the same and broke his leg, and was otherwise greatly injured; and by reason of the premises plt. has been, and is, and will be sick and ill and lame, and confined to his house and bed, and prevented from carrying on his trade and business of a builder, and from acquiring large profits therein, and compelled to incur medical and other expenses in order to his cure, and will be permanently injured in his health and strength. And plt. claims 5002. Pleas:-1. Not guilty (by stat. 5 & 6 Will. 4, c. 50, s. 109, public Act). 2. That defts. were not the joint surveyors of and for the said parish, &c. in manner and form as alleged. Issues thereon. A month's notice of action, setting out plt.'s claim in the words of the declaration, was given previously to issuing the writ. Plt. was a builder at Oxford, and defts., two brothers, were farmers living in the parish of Alkerton, in the county of Oxford, a parish maintaining its own highways. On 5th April 1860 defts. were for the third consecutive year duly appointed by the vestry were acting as such surveyors at the time of t accident in question, discharging the duties of t office gratuitously. On the evening of the day in question, 19th Sr. 1860, plt. was a passenger by a carrier's cart in Banbury to Tysoe, in Warwickshire, and, on arrive at the top of a hill called Alkerton-hill, between to and six o'clock p.m. he got out of the cart and p ceeded to walk down the hill behind it, keeping the raised bank or footway by the side of the rai This bank was at the top of the hill some five or feet above the level of the road, but it decre gradually in height as it approached the bottom of t hill. At the bottom of the hill there was a hek the side of the road, close to the bank, of considerate size, both in depth and width, which had eisz there for a long time, and which it appeared ra owing, partly to the original malconstruction of tr road at that spot, for which defts. were not responst having had nothing to do with its construction, ex partly to the swill of the surface water running d the hill, the natural result of which had been gray to enlarge the hole, which the jury, by their vendit found to be dangerous. According to plt.'s case tr bank or path terminated abruptly in this hole, which plt., not being aware of its existence, and the state of the light being unable to see a arriving at the end of the path, fell and broke his y The defts.' case was, that plt. ought to have pass from the bank to the road, before he came to end of the bank, at a point where the p inclined gradually down to the road, and also that t accident was caused by plt.'s own negligence running down the bank, which was slippery from sa in the dark. The plt., however, denied that he It appeared that the state of the road at that spet been brought to the notice of defts., but nothing been done to remedy it until after the accident, the hole was filled up by their directions with four d loads of stones. At the trial before Keating, J. and a special ju at the Oxford summer assizes 1861, Figott, S the close of the plt.'s case, submitted that the t were not liable, citing Harris v. Baker, 4 M. & 5. 20, and sect. 94 of 5 & 6 Will. 4, c. 50, which pe out the mode of proceeding in case of neglect of by the surveyor, and so the action would not lie. learned judge overruled the objection, and after case was finished he directed the jury that, if the was there by reason of the neglect of the surre and the accident was not contributed to by the himself, then the defts. were liable. If the Ad posed a duty the defts. were bound to discharge if plt. suffered from their neglect or negligent dischar of duty, he could maintain an action; and bel to the jury to say, first, whether they were satisi that there was a dangerous place by the side of road, into which plt. fell and sustained his n secondly, if it was through the negligence of dist that he so broke his leg; thirdly, whether p caused the accident through the want of due c his part. The jury found a verdict for plt.—damag 150. Whilst the jury were consulting, the les judge, on the application of defts.' counsel, gave jur to deft. to move to set aside the verdict court should be of opinion that defts, veyors, were not liable, the defts. to be bound the opinion of the court, the plt. not to be bound that opinion. Mellish, Q.C. having in Michaelmas Term obta a rule to show cause why the verdict should not be s aside, and a verdict for defts. or a nonsuit entered why judgment should not be arrested for the insu ficiency of the declaration, upon the ground th action can be maintained against surveyors of Ex.] YOUNG v. DAVIS AND ANOTHER. [Ex. ys for omitting to repair a highway, whereby plt. has | Hungerford Market Company, 2 Bing. N. C. 28, 5 en damaged, L. J., N. S., 23, C. P., the broad proposition was laid Jan. 24.—Huddleston, Q.C. and Dowdeswell now down, that for any special individual injury, beyond what >wed cause.-Prima facie, the liability to repair was was suffered by the public generally, an action would lie. the parish; but this liability was imposed on the Whether the duty arose under the statute, or by reason veyor by sect. 6 of 5 & 6 Will. 4, c. 50, which of property, was immaterial; the question was, did the ated a public duty, and that duty was enforced im- duty exist?-and, if an injury arose from neglect of atively by sect. 20. The assistant surveyor is a that duty, an individual might recover dainages. d officer, and the surveyor is placed in the same [Pollock, C. B.—None of the cases referred to in ition as the assistant. The surveyor was a public Com. Dig. are like the present case. There is a wide cer by sect. 20, and compelled under a penalty to distinction between a surveyor's doing nothing and a ept and discharge the duties of the office, and man's refusing to hold a court. Had defts. been taken ing the means of performing such duties by rates to the spot, and told to repair it, that would be somebe levied and enforced if necessary, and if he failed thing like the cases mentioned in Comyn.] Defts. perform them, then an action would lie against him. were aware of the state of the road before the accie penalty imposed by sect. 20 did not operate to pre- dent, but took no steps to remedy it until afterwards. it an action by an individual suffering injury from the The cases of Davis v. Curling, 8 Q. B. 286, 15 L. J., veyor's neglect. He was in the position of a public N. S., 56, Q. B., and Couch v. Steel, 3 E. & B. 402, icer to a company. By the 27th section means were 23 L. J. 121, Q. B., were in point, and strong authoovided for his carrying out the intentions of the rities in favour of plt.'s right to maintain this action. tute, and for raising the necessary funds; the want [POLLOCK, C. B.-How do you get rid of the decision funds, therefore, could not be alleged as an excuse. of this court, affirmed in error, in M'Kinnon v. Penct. 55 imposed duties on the surveyor when holes son? Is there any distinction between the county re made in the highway, and by sect. 56 a penalty surveyor there and the surveyors of highways here ?] is imposed on him for leaving any obstruction in the There he was merely the officer of the justices in sesad; but that was no answer to a claim for damages sion, and could only do what they ordered, and was the part of a person injured through the omission without any means of raising money; but here the properly fence a hole, and sect. 57 clearly showed surveyors were independent officers, with power to raise at the Legislature contemplated an action. Sect. 94 funds, and having entire control over the roads and the is most important. By that section a penalty was funds. In Hawk. Pl. C. book 2, c. 25, s. 4, it was posed not only on the surveyor, but on any one said: "Wherever a statute prohibits a matter of a ble to repair ratione tenure. The surveyor, there- public grievance, &c., or commands a matter of public re, was placed in the position of such person, and it convenience, as the repairing of the common streets clear that such person would be liable to an action of a town, an offender against such statute is ke the present. [MARTIN, B.-Is there any case punishable, not only at the suit of the party aglowing that a person bound to repair ratione tenuræ grieved, but also by way of indictment for his conliable to an action?] Yes. Com. Dig. tit. "Action tempt of the statute, unless such method of pron the Case for Negligence," A 3, referring to a case ceeding do manifestly appear to be excluded by it." the Year-book, 11 H. 4, fo. 82, B 28. [MARTIN, That was a dictum strictly applicable to this case. -The case in the Year-book to which you refer, and “Every breach of a public duty working wrong and hich Mr. Matthews has been good enough to abridge loss to another is actionable:" (per Eyre, C.J., in Sutor me, is no authority. That was a prescription that ton v. Johnstone, 1 T. R. 509.) In Lacon v. Hooper, he owner of the manor of S. used to have kept up for 6 T. R. 224, it was never suggested that defts., who im a bridge by the millowner, and it was held the were commissioners of customs, were not liable to tion would not lie. POLLOCK, C. B. Before the action: (Schinotti v. Bumsted, Ib. 646; Rex v. he Highway Acts the inhabitants were subject to Robinson, 2 Burr. 1077; Rex v. Harris, 4 T. R. 202.) dictment if the road was out of repair, but they Those cases were approved in Barry v. Arnaud, 10 A. were not liable to an action; the question then is, & E. 146, and established that a person having whether the Legislature, in passing the Act, intended ministerial duties was liable for neglecting to perform o do more than to create an officer in every parish, them. The individual right was not satisfied by the ho should do for the parish what the parish was public remedy. That the action was maintainable able to do collectively, and whether it intended that against defts. for breach of duty in their office was he surveyor should be liable to an action to which the confirmed also by the following cases: Roberts v. Read, parish was not liable? Of course, if he were to do 16 East, 215; Morgan v. Leech, 10 M. & W. 550; in act by which distinct mischief accrued, such as Alston v. Scales, 9 Bing. 3; 1 L. J., N. S., 95, M.C.; ligging a hole, or leaving a heap of stones exposed, Ruck v. Williams, 3 H. & N. 308; Parnaby v. Lanhe would be liable, as any other individual.] The rea-caster Canal Company, 11 A. & E. 223; in error, Ib. son why, before the statute, an action could not be 230. In Henley v. Mayor of Lyme Regis, 5 Bing. 91; rought was, that a parish could not be sued (Rus- 6 L. J. 222, C. B.; s. c. in error, 3 B. & Ad. 77; 1 Fell v. Men of Devon, 2 T. R. 667), the only instance Bing. N. C. 222, referred to by Wilde, B., all the in which a district could be sued being under the authorities were to be found. It was there conceded, Black Act, for an injury to buildings; but the statute and held by the court, that, being liable to indictment, of Will. 4 intended to create a change in this respect, defts. were also liable to an action at the suit of an inand to impose a duty on the surveyor, for a breach individual. In the present case the surveyor's duty was the performance of which he would be liable to an ceated by statute; and, had the Act stopped with Case lies for negligence, in a man's duty, sect. 6, he would be liable to an indictment for neglect though it be nonfeasance as if by neglect of a servant of duty, and it was submitted that the creating a cattle perish: (Com. Dig., ubi sup. A 1.) So it lies liability to penalties, instead of by indictment, made for neglect in his office, as if a sheriff neglect to return no difference. The remedies were cumulative: (Rex a writ (Ib. A 2); and for neglect to do that which v. Gregory, 5 B. & Ad. 555; 2 N. & M. 478; Mayor by law he ought to do: (Ib. A 3, citing Steinson v. of Lichfield v. Simpson, 8 Q. B. 65; 15 L. J., N. S., Heath, 3 Lev. 400; and Moyser v. Gray, Cro. Car. 78, Q. B.; Couch v. Steel, ubi sup. So in actions for 446.) The principle was well stated by Holt, C. J., omission to fence machinery, there was a right to sue that, in every case where an officer was intrusted by at common law, notwithstanding the statutory penalcommon law or by statute, an action lay for neglect of ties: (Whitehouse v. Fellowes, 30 L. J. 305, C. P.; the duty of his office: (1 Salk. 18.) In Wills v.4 L. T. Rep. N. S. 177; Caswell v Worth, 5 El. & action. Bl. 849; 25 L. J. 121, Q. B.) The statute has created | common law, and this decision was affirmed in env a duty, and the argument of inconvenience will not 9 Ex. 609; 23 L. J. 97, M. C. The legal labor prevent the court from enforcing it. Plt. has received to repair being in the parish, no action would i a peculiar injury, and it would be more inconvenient, against the surveyor, who was a mere parochial offer and a great wrong, that he should have no remedy. or servant, for damage arising from an omissin > Private rights were impaired and interfered with by repair. The duty was not shifted from the parisuto D the statute, which took away the right of indictment, surveyor by sect. 6, though it might be that where a soand for that reason this remedy was given against the veyor, with funds, omitted to repair, and the parish surveyors, who will be protected by the statute in the indicted, he might be rendered responsible to the perin proper performance of duty, but if they are in default for his breach of duty towards them. Again, p they will not be protected at the expense of an inno- sect. 18, could it be that an individual suffering dang cent party. [CHANNELL, B.-Are you right in saying would have an action against the fifteen or twea that the statute has taken away the power of indict- dividuals forming the board, similar to that whe ment? that is the right of individuals. It took away was sought to be enforced here against the surreţ:: the power of presentment, which was by the justices; The penalty imposed by sect. 20 was the mode, d I don't take that to be the effect of the statute.] the only one, by which the parish could compel ba perform his duty. Sects. 55 and 56 were reled by the other side, but the penalties there imposed i for acts of commission, for which the surveyor us individually liable and for which the parish was liable. Then, as to the 94th section, that was any a cheap mode of getting at the parish through ther officer, rather than by indictment. The road being. of repair, the surveyor might be summoned whether were in fault or not, from which it was evident in the duty to be performed was in the parish, ther it was to be carried out by the surveyor, who had means of recouping himself, as it was not meant ta he should repair the roads out of his own funds: ( 94.) The propriety and necessity of repairing we be decided on by the justices; but, if this action we form a precedent, a jury would have to decide i matter upon the occasion of every accident, would raise questions most difficult and inconve to be decided by such a tribunal. In many parts - | the country, in Nottinghamshire for instance, the were iniles of highway which were mere grass and which answered all the purposes required of the and very seldom received any repairs. Questions on sionally arose whether they should be repaired grass or be macadamised, and it could not be that, th parish resisted the application to stone the tart and the surveyor bona fide fought the case, at tien stance of the vestry, that he was to be saddled m the costs personally. [CHANNELL, B.—If you right, it is an objection in arrest of judgment] was here stopped. Mellish, Q.C. (with whom was Pigott, Serjt.) contra, in support of the rule.-This was an attempt, for the first time, to put this liability on surveyors, who were bound to accept the office, and to perform its duties without remuneration. The Act 2 & 3 W. & M. c. 8, first recognised the office, and made the duties compulsory; but parishes, it was apprehended, always had, at common law, the power to appoint officers to carry out their duties. The alleged duty in this case was to do some act which has been omitted to be done. There was a principle which was not at all touched by any of the numerous cases cited. The universal rule applicable in all such cases was this, that where there was a principal and agent, master and servant, superior and inferior officer, employer and employed, the duty to do something, for the non-doing of which an action was maintainable, could never be in two persons at the same time. If the act were one of commission, and were done by the inferior in the execution of authority, then both were liable. If it were done by the inferior of his own authority, then he would of course be liable; but where the duty was to do something, and the action was brought for omitting to do it, then the superior alone was liable. The question was, in whom was the duty? The duty of the superior was towards the party injured; the duty of the inferior was towards his principal. An instance of this was the case of sheriff and undersheriff. The latter was an officer well known to the law, and every sheriff was bound to appoint one. But in case of injury by nonfeasance on the part of the under-sheriff, e. g. the non-delivery of a writ, no action lay against him, because by law the liability was in the sheriff. The remedy of the individual was exclusively against the sheriff, who had his remedy over again against his deputy. So here, the duty to repair as respects the public was by the common law in the parish, and the statute had not taken away that liability; and in case of damage through omission, respondeat superior was applicable. It must be assumed that, at common law, parishes always had an officer whose duty it was to repair and superintend the roads; or, under the early statutes, simply an officer to do the duty of the parish; and it was not pretended that he could have been sued for merely carrying out the parish work. It was clear that the parish was not suable (Russell v. Men of Devon, ubi supra), and for the reason stated by Alderson, B., citing Bro. Abr., that they were not a corporation, and could not appear to a writ: (Mackinnon v. Penson, 8 Ex. 319; 22 L. J. 57, M. C.) The real question fought in that case was this: the Act having enabled a county to sue and be sued in the name of the surveyor, the argument was, they can now be got at, and an individual, sustaining damage by reason of the non-repair of a bridge, might sue the county in the name of the surveyor. But the court held that the statute was passed alio intuitu, and was not intended to make the county liable for a cause of action for which it was not, before the statute, liable at Jan. 25.-POLLOCK, C.B.-I am of opini Mr. Mellish's rule to enter a verdict for the des to enter a nonsuit, or in arrest of judgment, m absolute to enter a nonsuit. The real question whether, since the passing of the Highway Act, veyor of highways is liable to an action simply be the road is out of repair; and that question bas appears to me, been already substantially decided this court in the case of the surveyor of county or (Mackinnon v. Penson), our decision in which case afterwards affirmed by the Court of Ex. Chi argument,'it is true, rather turned, in that case, question whether the Legislature, having supplet mode of suing the county by the surveyor, an would lie against him; but substantially the decisi that case applies in the present instance. Alte probably in a court of law, the more strict and tech an argument is made to appear, the more force be said to possess, yet the way in which I am dis to view the case, and which I think is desirable, quite so technical but more popular, and possi generally intelligible. Before the Highway Acts passed such an action as the present was not sat against a parish; the rule was that the par bound to repair, and a mode existed for compelling t to repair. When roads were out of repair tra were bound to proceed with greater circumspet It being then undoubted that at com non law lay against the parish, at the suit of an individ t |