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could have been maintained against one of the directors of the Bank of England, who might have been present at the resolution that the clerk be directed to detain the note ? In Smith v. The Birmingham and Staffordshire Gas Light Co. (1 A. & E. 526; 3 L. J., N. S., 165, K. B.), trover was held maintainable against the company (a corporation) for the wrongful seizure of a quantity of furniture by a bailiff under their authority. And in Maund v. The Monmouthshire and Staffordshire Canal Company (2 Dowl. Rep. N. S. 113; 11 L. J., N. S., 317, C. P.), the plaintiff recovered in trespass for the seizing and converting, under the orders of the defendants, of certain barges and a quantity of coal. It was never suggested that in either of these cases the action should have been brought against the individuals who happened to be present when the act in question was ordered to be done. I cannot doubt, therefore, that this action ought to have been brought against the board, and all these decisions are uniform to show that it would have been maintainable. The mischief and inconvenience that would result if the contrary were held to be law is great and obvious. If judgment be recovered against these defendants, execution might issue for the whole amount of damages and costs against any one among them; and he would have no remedy for contribution against the rest, nor, as it should seem upon the facts of the case, for indemnity against the corporation. And it is at least doubtful whether the board would have a legal right to indemnify him out of the funds which came to their hands under the Act of Parliament. On the other hand, if the action had been brought against the board, and judgment had been obtained against them, they might pay the damages and costs out of the funds which they are enabled to provide for the various purposes of the Act by sections 20, 21, and others. It was argued that no action could be maintained against the board on the ground that the resolution and the order to the surveyors were ultravires. But I apprehend that this is a misapplication of the term "ultra vires." If the board, by resolution or otherwise, had accepted a bill of exchange, directing their clerk or other officer to write their corporate name or title across a bill drawn upon them for a debt, this would have been ultra vires, and no holder of the acceptance could recover the amount against them. It would have been void upon the face of it, and it is immaterial to consider whether the individuals who had written or authorised the acceptance would have been liable to any, and if any to what, action at the suit of a holder for value. But it is otherwise with an act merely unlawful or unauthorised, as a trespass or the conversion of a chattel. If such an act were to be deemed ultra vires, and therefore no action would lie against the corporate body by whom it had been authorised, it is clear that a corporation would not be liable for any tort at all committed or authorised by them, and the decisions above cited would be contrary to law. Two cases only have been cited, which seem to bear upon the question against the defendants. But the first of them (Poulton v. The London and South Western Railway Company, ubi sup.) merely shows that there is no implied authority by a railway company to their servants to do an illegal act. But here no question arises upon an implied authority; for this board have expressly authorised and

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commanded the surveyor to do the act complained of. On the other hand, in the Dulwich College case, Taylor v. The Dulwich Hospital (1 P. Wms. 655), the constitution of the college requiring that leases granted should be at a rack rent, the contract for a lease not at a rack-rent was ultra vires, and not binding on the corporate body; and so, if the plaintiff had been entitled to the relief prayed, it would have been granted against the individuals who had executed an instrument in the form of a corporate act, but which, being ultra vires, was absolutely void. The remaining question is whether Wickett, the surveyor, is liable to this action. The general rule, no doubt, is that one who does an unlawful act cannot justify himself by pleading the authority or direction of another. But here, the surveyor is a public officer charged with the performance of various public duties, and bound by the express words of an Act of Parliament to obey the order of the Highway Board-the board themselves being a public body, incorporated for public purposes, and having public duties to perform, and who, in ordering their surveyor to remove the obstruction in question, have acted bona fide, and within the general scope of their duties and authority under the Act of Parliament. To determine this question we must first consider the provisions of the Act. By sect. 17, "the highway board shall maintain in good repair the highways within their district," and it "shall be the duty of the district surveyor to submit to the board an estimate of the expenses likely to be incurred during the ensuing year, for maintaining and keeping in repair the highways in each parish within the district." And, by sect. 16, "The district surveyor shall act as the agent of the board in carrying into effect all the duties by this Act required to be carried into effect, or to be performed by the board, and he shall, in all respects, conform to the orders of the board in the execution of his duties; and the assistant surveyor, if any, shall perform such duties as the board may require, under the direction of the district surveyor." And then there are further provisions, already referred to, enabling the board to obtain funds for the performance of their duties, and the carrying of the Act into execu tion. Now, where all the public highways in any district are well known and ascertained, no difficulty can arise in the execution of the Act. The surveyor inspects them, and observes their condition; he makes his estimate of the expense of repairing and keeping them in repair during the ensuing year, and delivers it to the board, who thereupon direct him to effect the repairs from time to time accordingly; and he obeys their directions. But, where, as here, he finds a highway which requires, or will shortly require, to be repaired, but the owner of the land gives him notice that the land is his private property, and is no highway at all, what is the course to be pursued? We may suppose that, upon his report, an order has been given to him to repair the highway. and that, when he proceeds to do so, he finds a locked gate thrown across it, and he makes s report to that effect to the board. They, the board, after communicating with the owner of the land, and finding that the question is raised and must be determined, highway or no highway, must next consider how this may most conveniently be done. They may indict the land

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owner for the obstruction, or they may do as they have done here, they may give him notice to remove the obstructon and that in default of his doing so they will remove it themselves, and that he may try the question by bringing an action of trespass against them. They accordingly come to the resolution they made and they give the order in question to the surveyor, and he, in obedience to it, removes the locks. If an action be then brought against the board, they plead the Highway Act, or defend under the general issue by statute, and the question is settled by the verdict of the jury, and no difficulty arises; but if the law be that the landowner may select the surveyor as a defendant, in what condition is he placed? The board have ordered him to effect the necessary repairs, and for that purpose to remove the obstruction. He looks to the statute and he finds that its language is imperative. "He shall in all respects conform to the orders of the board," and "shall act as the agent of the board," in carrying the Act into effect. He has no means

of ascertaining beforehand, or without the verdict of a jury, whether there is a highway or not; nor have the board themselves. He must, therefore, at the risk of absolute ruin, obey the order as required by the Act, or he must refuse obedience; in other words, he must disobey the order whenever a highway is in dispute. The board cannot themselves, in their own persons, remove the obstruction, any more than they can repair the highway. They must, therefore, either instruct their surveyor to act on their behalf, or resort to some other mode, as by indictment, of raising the question, and if a public highway be established, perform their duty by putting it into repair. I am not aware of any direct authority in reference to this Act of Parliament. But there are cases which establish a principle within which, I think, this case may be well decided. In Buron v. Denman (2 Ex. 167), it was held by Parke, B., after consulting the other judges of the Exchequer, that, where a naval officer had committed a series of trespasses, for which he was personally liable to an action for damages, but the Crown had afterwards ratified his acts, that the ratification was equivalent to a prior command, and that the action against him could not be maintained. Baron Parke himself had some doubt whether the ratification had that effect, but the judges, including Parke, B., were unanimous that the defendant, whose duty it was to obey the commands of the Crown, could not be made personally responsible in an action for the acts done in obedience to such commands. In Andrews v. Marris and Whitham (1 Q. B. 3; 10 L. J., N. S., 226, Q. B.) the clerk of a court of requests, whose duty it was to issue warrants or writs of execution at the order of the commissioners, having mistaken the effect of an order, issued a precept without authority, under which the plaintiff was taken in execution, and he was held liable in trespass accordingly. But it was also held that Whitham, the other defendant, one of the serjeants of the court, and to whom the warrant was directed, and who actually made the arrest, was not liable to the action, on the ground "that he was a ministerial officer of the commissioners bound to execute their warrants, and having no means whatever of ascertaining whether they were founded upon valid judgments, or were otherwise sustainable or not." It was fur

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ther observed by the court, that there would be something very unreasonable in the law, if it placed him in the position of being punishable by thecourt for disobedience, and at the same time suable by the party for obedience to the warrant ; and that as the subject-matter of this suit was within the general jurisdiction of the commissioners, and the warrant appeared to have been regularly issued, the defendant Whitham was not liable." It appears to me that in the present case, the surveyor was in the exact position of Whitham in the case cited. Dews v. Riley (11 C. B. 434; 20 L. J. 264, C. P.), was a similar case. There, a void order of commitment had been made by a County Court, under which the clerk of the court made out. a warrant of commitment, and the plaintiff was arrested by a bailiff under that warrant. It was held that the action was not maintainable, and the court observed that "the clerk was a mere ministerial officer to carry into effect the order of the judge, and cannot be liable in trespass for the performance of the duty cast upon him by the express language of the Act of Parliament." And in Keane v. Reynolds (2 E. & B. 748), where trespass was brought for pulling down a cottage which three magistrates had adjudged to be an encroachment within 15ft. of the centre of a highway, and convicted the plaintiff of having made the encroachment, and the defendant, who was surveyor of the highways, had pulled down the cottage in the supposed exercise of the Act of 5 & 6 Will. 4, c. 50. It appeared that the conviction was void, the way never having been repaired with stones or otherwise; but the court held that the defendant was not liable to the action, on the principle that the surveyor acted in obedience to the judgment of a court of competent jurisdiction which he was bound to execute.' It is true that, in most of these cases, the defendants who were held irresponsible were bailiffs or other officers, acting in obedience or supposed obedience to the orders of a court or some legal tribunal, made in the course of the administration of justice. But here also, as in all those cases, the surveyor is a mere ministerial officer bound by the express words of an Act of Parliament to obey the orders of the board, and having no means of knowing or ascertaining whether such orders were valid and lawful or otherwise; and the board itself is a public body having public duties to perform, and created and incorporated for public purposes. I know not therefore why these officers should not be protected by law as well as the subordinate officers of a court of justice. It appears to me, therefore, upon the whole case, that the defendants have acted throughout strictly within the scope of their authority and their duty A complaint is made to the board that a highway is unlawfully obstructed; upon investigating the case they find that an obstruction exists, but that it is disputed whether the spot is a public highway or not. Upon first inquiry they are advised and believe that it is a highway, and therefore that it is their duty to keep it in repair and free from obstructions. There are two modes in which the question whether there is a public highway or not may be raised and determined, viz., by indictment and by action. They think, and I may venture to add that I think also, that an action is preferable to an indictment, inasmuch as in a civil action points may be reserved and motion made for a new trial and appeals.

efficiently rendered, the Racer, her cargo and crew, were rescued from a position of considerable danger and placed in perfect safety. In her then condition, if she had failed to make the harbour, she would undoubtedly have been carried out into the North Sea, as it would have been impossible for her to get into Ramsgate or any other neighbouring port.

10. In rendering the aforesaid services, the plaintiffs ran considerable risk, both to their lives and property.

11. The Racer is a schooner of 149 tons register, and was bound on a voyage from Bahia to London, laden with a cargo of coffee. The value of the ship was 950l., and her cargo and freight 6000l.

The answer filed on behalf of the defendants was as follows:

1. On the morning of the 20th Jan. 1874, the Racer, being bound on a voyage from Bahia to Antwerp, was off Folkestone, and as she required certain repairs, the master determined to put into Dover, and accordingly made the ordinary signal for a pilot.

2. Soon afterwards the lugger Stag came up and hailed the Racer, and those on board her, on being informed that the master of the Racer wanted a pilot for Dover, offered their services as pilots.

3. The wind was in the south-west, with a fresh breeze, and there was some sea. The Stag and the Racer stood in together towards the land, and then a boat from the Stag put off to the Racer, and one of the plaintiffs, with no serious difficulty or risk, boarded the Racer from the boat.

4. The said plaintiff then proceeded to pilot the Racer into Dover Harbour. The Racer had suffered certain damage, but there was no difficulty in bringing her to the harbour, and she sailed into the harbour with great ease. The steam tug of the harbour was at hand, and her services were offered to the master of the Racer, but the master of the Racer declined them as being, as they in fact were, unnecessary. Some damage had been done to the steering gear of the Racer, but that was repaired before the said plaintiff came on board.

5. The allegations contained in articles 1, 3, and 11 of the petition are true, except that the Racer was bound to Antwerp and not to London, and it is true, as stated in article 5 of the petition, that one of the seamen had been disabled from a severe injury to his head, having been knocked down by the main boom, and that the mate of the Racer had been washed overboard and drowned in the course of the voyage, namely, on the 3rd. Nov. 1873. 6. Save as herein before appears, the several allega. tions contained in the petition are untrue.

7. The service rendered by the plaintiffs was nothing more than pilotage service rendered to a vessel which had suffered some damage.

The plaintiff filed a conclusion admitting that the Racer was bound for Antwerp, but denying the other statements in the answer, except so far as they were consistent with the plaintiff's petition.

Evidence was called for both plaintiffs and defendants, and it resulted in substantially establish. ing the allegations in the plaintiffs' petition.

R. E. Webster, for the plaintiffs, submitted that on the facts there was a salvage service entitling the plaintiffs to salvage reward.

W. G. F. Phillimore, for the defendants.-On the facts it is clear that there was no salvage service. The service was pilotage to a damaged ship entitling the plaintiffs only to double pilotage and the amount of damage done to their boat: (The Enterprise, 2 Hagg. Adm. Rep. 178n.) The signal was really a signal for a pilot and not for salvage assistance, At any rate it cannot be put higher than an ambiguous signal; and, where such a signal is given the question whether the service is to be considered salvage or pilotage must be judged by the result. In The Little Joe (Lush. 88), the salvors, who went out to a vessel hoisting an ambiguous signal, recovered no remuneration, because they rendered no service. Here they are entitled to

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R. E. Webster, in reply.-The true rule, as laid down in The Little Joe (ubi sup.) and other cases, is, that an ambiguous signal is to be interpreted according to the state of the ship at the time it is given. If the ship really wants no more than a pilot, she is liable only for pilotage; but if her condition is such that she requires further assistance, the signal is to be read as a signal of distress. The Enterprise (ubi sup.) is only a very short report, and does not disclose the facts upon which it was decided. In The Aztecs (21 L. T. Rep.. N. S. 797; 3 Mar. Law Cas. O. S. 326), it was argued that because the salvors rendered assistance at the master's request to a vessel damaged but not actually in distress at the time they boarded her, they could not recover, but it was held that it was impossible to get rid of the salvage character of the service when they had once been engaged as salvors. The Bomarsund (Lush. 77) shows that the condition of the ship to which the services are rendered is the main point to be considered where the signal is ambiguous:

The Hedwig, Spinks Ecc. & Adm. Rep. 21;
The Dosseter, 10 Jur. 865.

These men get their living in the meritorious occupation of rendering assistance to vessels in distress, and this court always encourages them and does not criticise their acts too narrowly.

Sir R. PHILLIMORE.-The first question which I have to consider is, whether the service rendered by the plaintiffs was purely pilotage or partakes of a salvage character. There is no dispute that a signal was made from the Racer; that signal was a Union Jack with a portion of the ensign torn away and hoisted above her topgallant-yard. This signal, I am of opinion, was an ambiguous signal; and my predecessor, very early in the exercise of his jurisdiction in this court, laid down a rule-to which I think he always adhered-as to the character he should give to an ambiguous signal, and the interpretation he should put upon services rendered under such a signal. In The Hedwig (Spinks Ecc. & Adm. 21), Dr. Lushington said: Now the vessel having sustained damage, and jury, a signal was hoisted; and, according to the two of her crew having received considerable ir

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rule which I laid down on a former occasion, I ho'd it to be a signal for assistance and not for a pilot. But, again, what was the nature of this case? Was it a case in which the words 'pilotage' cr 'pilot' could with safety and propriety be applied? Why, the vessel was thirty-five miles out at sea. There are no pilots to be found there; that is out of pilotage ground altogether. It is true the vessel might require nothing but to be conducted to a place of safety; but that is not pilotage, it is salvage assistance." And in the

note to that case, there are these words: "In the case of the Felix (April 4), the court said, I have determined to decide the questions in this way: if a vessel is in a damaged state I shall determine that it is a signal for assistance, because the vessel wants it; but where the vessel is not in a damaged state, and a pilot only is wanted, I shall construe it to be a signal for a pilot. That seems consistent with probability." To that ruling the learned judge substantially adhered in subsequent cases. It is true that the circumstances in the various cases before him might vary, but to the rule there laid down he adhered. The condition of the Racer