1827. v. MEARS. by which they must have meant negligence in the de-fendant, because he was the only defendant on the re- HUMPHREYS cord. [Lord Tenterden, C. J. There was no evidence that the defendant employed the contractors, or the persons who actually performed the work; and the evidence of his interference in the management of the work was exceedingly slight.] It was proved that the defendant lived close to the spot-that he constantly inspected the progress of the work twice a week-that he occasionally gave directions to the workmen, and that he cautioned them to use every precaution to make the road safe for the public. Surely that is sufficient evidence of his interference to render him, as a trustee, liable for negligence in the performance of the work. It was held, in Hall v. Smith (a), that the clerks to commissioners, under a lighting and paving act, entrusted with the conduct of public works, were not liable in damages for an injury, occasioned by the negligence of artificers and labourers, employed under their authority; and in Bolton v. Crowther (b), that where trustees under the General Turnpike Act, 3 Geo. 4, c. 126, by improving the course of a public road, had effected a consequential injury to a private individual, whose estate abutted on the road, they were not liable to an action: but the decison in both those cases proceeded upon the ground, that the defendants had not been guilty of any negligence or misfeazance themselves; whereas, here the jury have found expressly, for their verdict could have no other meaning, that the defendant was guilty of negligence. Those cases, therefore, do not apply to the present. [Bayley, J. This action charges the defendant as upon a common law obligation; whereas his obligation is a special one, imposed by a particular act of parliament. The defendant, as a trustee of the roads, had a public duty to perform, and is not liable for the negligence of those who are employed (a) 9 J. B. Moore, 226, 2 Bingh. 156, S. C. (b) 4 D. & R. 195, 2 B & C. 703, S. C. And see Harris v. 1827. HUMPHREYS บ. MEARS. under him in the performance of that duty.] That is, undoubtedly, the law with respect to public officers, if they merely employ others to perform public works under them; but here the defendant himself interfered in the conduct and management of the work; and having chosen to interfere at all, he was bound to extend his interference so far as to see that proper means were taken to insure the safety of the public; and not having done so, he has been personally guilty of negligence, and is personally liable for the consequences. Lord TENTERDEN, C. J.-Assuming that the defendant did not personally interfere in the management of the work, the case of Hall v. Smith (a), is decisive to shew that he is not liable in the present action; and I think the evidence of his interference is far too slight to take this case out of the general rule laid down in that and other cases on this subject. I am, therefore, of opinion, that we ought not to grant the rule prayed for. BAYLEY, J.-I am of the same opinion. I cannot admit that the negligence in this case has been brought home to the defendant; the finding of the jury on that point is very equivocal: the contractors for the performance of the work were the proper persons to have been sued. WATSON V. HOME (a). Demise, by indenture, of land, for a term of years, at the rent of797. 12s. 6d., with a stipulation that jessee should not build upon it, without the written license of lessor. Covenant by lessor to pay all taxes, then charged, or to be charged, upon, or in re spect of, the COVENANT by plaintiff, as assignee of the lessee, against defendant, as lessor, of certain premises, demised by lease, of the 9th of March, 1819, from defendant to one Prendergast, for a term of 18 years, and by him assigned to plaintiff, in which defendant covenanted to pay all rates and assessments then already charged, or to be charged, upon or in respect of the demised piece or parcel of ground, or any part thereof, during the continuance of the said term, or any renewed term, or upon the lessee or assignee in respect thereof. Pleas, after setting out the lease on oyer; first, non est factum. Second, that Prendergast did not assign the lease to plaintiff. Third, that nothing became due for rates or taxes charged upon, or in respect of land. Lessor the piece or parcel of ground so demised, or upon plaintiff as assignee in respect thereof. Fourth, that no taxes or rates were charged upon, or in respect of the said demised piece or parcel of ground, or upon plaintiff as assignee in respect thereof, at any time after the assignment thereof to plaintiff. And, fifth, that defendant had paid all rates and taxes charged upon, or in respect of the said demised ground. Issues on all the pleas. At the trial before Littledale, J., at the Middlesex sittings after Michaelmas term, 1826, a verdict was found for the plaintiff, damages 51. 1s. 6d., with liberty to him to move to increase the damages; and upon such motion being afterwards made, the Court directed the facts to be stated in the following case: By indenture of lease, dated 9th March, 1819, between defendant of the first part, plaintiff of the second part, and L. Prendergast of third part, defendant demised to L. P. all that piece or parcel of ground, situate, &c., habendum for 18 years, from 25th March then next, at the yearly (a) This case was decided at the sittings before term, but the MSS. was mislaid. his written lihaving given cense, of even lease, for lessee to build on the land, buildings were erected, whereby the date with the value of the estate was greatly improved, and the amount of taxes increased in proportion. Held, that les sor was liable for the amount of taxes calculated upon the rent of 791.12s. 6d., but not for the amount calculated upon the improv ed value of the land, occasioned by the erection of the buildings. 1827. WATSON บ. HOME. rent of 791. 12s. 6d., which the lessee covenanted to pay "without any deduction whatsoever, except for taxes, charges, rates, and assessments, charged, or to be charged upon, for, or in respect of the said piece or parcel of ground, and paid by the said L. P., or his assigns;" and then the lessee covenanted that he would not without the previous consent, in writing, of the defendant, erect, or suffer to be erected, any messuage or tenement, or other buildings, upon the demised premises. The defendant's covenant as to taxes, upon which the action was brought, was as follows:-"And also that he the said W. Home, his executors, administrators and assigns, shall and will bear, pay and discharge, as well the land tax, as all other taxes, charges, rates, assessments, and impositions, parliamentary, parochial, or otherwise, already charged, or to be charged, upon, or in respect of the said demised piece or parcel of ground, or any part thereof, during the continuance of the said term hereby granted, or any renewed term or terms to be granted, or upon the said L. P., his executors, administrators, or assigns, in respect thereof. On the said 9th March, 1819, the defendant, at the time of executing the lease, signed a licence or consent for the plaintiff to build on the demised ground, as follows:-"I consent that Mr. L. P., shall be at liberty to build upon the piece of ground demised to him by indenture, dated 9th March, 1819, to the extent of, and consistently with the specification and plan hereunto annexed. W. Home;" and afterwards fourteen messuages were built thereon accordingly, at an expense of upwards of 2,500l., and to each of those messuages is attached a garden, being respectively part of the demised ground: the whole of the houses let at rents, amounting together, to 5847., but subject to risk of tenant's taxes, repairs, and all outgoings, which are paid by the plaintiff. In the year 1819, the lease was duly assigned to the plaintiff. The plaintiff claims in respect of the following parochial rates, which he paid in the manner after stated. From Christmas 1821, to Michaelmas 1824, 1527. 15s. 6d., for 23 2 years, viz., the poor and church rates, the paving and watch rates, and the sewers' rate. By the local acts of 22 Geo. 2, c. 50, s. 23, and 42 Geo. 3, c. 13, s. 22, the watch and paving rates are charged upon the occupier of any messuage, &c. By the local act of 53 Geo. 3, c. 112, s. 45, the poor and church rates are also charged upon the inhabitants and occupiers ; but by s. 54 of the last act, the trustees under that act, and the trustees under the before mentioned paving act, are empowered jointly to compound for all the above rates with landlords, where the premises shall not exceed 187. per annum, or where the houses are let in lodgings. The sewers' rate is assessed by the 54 Geo. 3, c. 219, ss. 7, 8, and is directed to be charged upon the occupier, and allowed by the landlord. Immediately after the fourteen houses were completed, and the gardens fenced in, Prendergast the lessee, and afterwards the plaintiff as his assignee, under the 53 Geo. 3, c. 112, s. 54, entered into a composition for payment of the poor and other parochial rates and assessments on the houses and gardens; and the same were compounded for at an average of 127. for each, making an aggregate sum for the whole, of 1687. per annum. The plaintiff proved that he had paid the taxes and rates, in respect of the houses and gardens, from Christmas 1821, to Michaelmas 1824, amounting to 1521. 15s. 6d., being for 24 years upon the said sum of 1687. so compounded for; and he seeks to recover the proportion of the said sum of 1521. 15s. 6d., to be calculated upon the sum of 791. 12s. 6d., the rent reserved by the lease, thus, "As 1687. is to bear 1527. 15s. 6d., so. 791. 12s. 6d. is to bear 721. 7s." It was proved that the defendant, before the lease to Prendergast, had been rated for the whole of the land, about fifteen acres, of which the land in question formed part, and three mes VOL. I. 1827. WATSON v. HOME. |