low, assisted by Ashurst and Gould, Justices, held; first, that the commissioners were personally liable; and, secondly, they were all liable in respect of all the orders. Lord Thurlow said, "Who would make a contract on the credit of toll, which it is in the power of the commissioners to raise, or not, at their pleasure? Then, upon whose credit must the contract be? Certainly that of the commissioners who act. It is their fault if they enter into contracts when they have no money to answer them. They have made themselves liable by their own acts." And this doctrine was confirmed in the modern case of Eaton v. Bell (h). It there appeared that an inclosure act empowered the commissioners to make a rate to defray the expenses of passing and executing the act; and enacted, that persons advancing money should be repaid out of the first money raised by the commissioners. Expenses were incurred in the execution of the act before any rate was made. To defray these expenses, the commissioners drew drafts upon their bankers, requiring them to pay the sums therein mentioned, on account of the public drainage, and to place the same to their account as commissioners. The bankers, during a period of six years, continued to advance considerable sums by paying these drafts; and it was held that the commissioners were personally responsible to the bankers, for the drafts so made. But where, by a private act of parliament, the expenses attending its passing were directed to be paid out of the tolls raised, or to be levied under it, and the attorney who prepared and solicited the bill, sued the commissioners named in it, in the name of the clerk, for the amount of his bill; it was held that he was bound to shew that there were sufficient funds in the hands of the commissioners, in respect of the tolls, to satisfy his demand (i). Trustees. It seems, that in general, the only remedy by a cestui que trust, against his trustees, for any breach of duty on their part, in that character, is in equity (k). The principle upon which it has been decided, that executors and administrators are not liable to be sued at law, for the recovery of legacies, and distributive shares of an intestate's property, under the Statute of Distributions (1), equally, if not more strongly, applies to actions (h) 5 B. & Ald. 34. (i) Andrews v. Dally, 4 Bing. 566; 1 M. & P. 490, S. C. See ante, 223. (k) See Co. Litt. 272, b.; Allen v. Impett, 2 Moore, 246, per Park, J.; Chidleigh's Case, 1 Coke R. 121, b.; against trustees. But where, by a marriage settlement, the trustees covenanted to permit the husband to receive, during his life, the dividends arising from bank stock, vested in their names; and on the husband becoming a bankrupt, the trustees authorised a third person to receive the dividends, and pay them over to the bankrupt's wife; the Court held that they were liable to his assignee, in an action for money had and received; for the trustees had no power to receive the money under the trust deed, and acted wrongfully in enabling a person to receive it, who had no valid claim thereto (m). 9thly. OF THE CONTRACTS OF PARISH OFFICERS. Parish officers are bound by law to take care of the casual poor in the parish; and if a private individual pay for absolute necessaries for such casual poor, he may recover the money on an implied assumpsit, from the parish officers personally (n). Nor can the parish officers recover from the master of a pauper, the amount of a surgeon's bill for curing the pauper, although the injury arose whilst the pauper was acting in his master's employ; the master not having expressly rendered himself liable (o). And where a pauper being casually in the parish of A., met with an accident therein which disabled her, and which required immediate medical assistance, but the constable of that parish improperly removed her to her own adjoining parish, and sent for the surgeon of that parish to attend her; the Court held that it was the duty of the parish officers of A. to have taken the pauper to the nearest house in A., and to have procured medical attendance (m) Allen v. Impett, 2 Moore, 240; 8 Taunt. 253, S. C.; overruling 1 Holt R. 641, S. C. Gibbs, C. J., was absent; and Dallas, J., was, it seems, of a contrary opinion, at the trial before him. Under the particular circumstances of this case, the defendants appear to have lost all protection from their character as trustees, and were not charged in that character. Had they merely refused to allow the bankrupt to receive the money, the only relief would, it seems, have been in equity. There may be other instances analogous to the case of executors, in which trustees may be liable as for money had and received; see ante, 218. The trustees of a savings' bank cannot be sued at law; arbitration is the remedy on 9 G. 4, c. 92, s. 45; Crisp v. Bunbury, 1 M. & Scott,646; 8 Bing. 394, S. C.; see 10 G. 4, c. 56. (n) Simmons v. Wilmot, 3 Esp. 91; Wennall v. Adney, 3 B. & P. 253; Gent v. Tomkins, cited in Tomlinson v. Bentall, 5 B. & C. 745, 6 note. Deputy overseer not liable unless he personally retain the surgeon; Watling v. Walters, 1 C. & P. 132; see id., note (a). (0) Newby v. Wiltshire, 4 Dougl. 284; 2 Esp. R. 739, S. C.; Wennall v. Adney, 3 B. & P. 247. there; that they could not, by improperly removing her to another parish, relieve themselves from this liability, and were therefore bound to pay the surgeon's bill (p). But where a pauper had his leg accidently fractured in one parish, and was conveyed to the nearest and most convenient house, which was in an adjoining parish, and was confined there, and visited by the overseer of the poor of the latter parish, and attended by the surgeon who attended such poor, with the knowledge of the overseer; it was held, that the surgeon might have assumpsit against the overseer, for the expenses of the cure; for the overseer's knowledge that the parish surgeon attended the invalid, and his omission to repudiate such attendance, were equivalent to a request to the surgeon to render his assistance (q). The law will not raise an implied promise in the parish where a pauper is settled, to reimburse the money laid out by another parish, in which he happened to be, in providing necessary medical assistance for him upon the occasion of his illness, &c., in the latter parish (r). Two divisions within a parish, had separate overseers, and separate rates, and managed their poor separately; but at the end of every year, in making up their accounts, the overseers of the one, (if they had money in hand,) paid the balance over to the overseers of the other : it was decided, that this was, in effect, one joint parochial account, and that all the overseers were to be considered as joint overseers of the parish at large. It was also held, that where a payment has been made by a party, at the sole request of one overseer, and without the knowledge of the others, and no demand is made upon them, till after they are out of office, it is a question proper for the jury to say, whether, under special circumstances, the party ought not to be considered as having relied upon the sole responsibility of the overseer, at whose request the payment was made ($). Under the 6 G. 2, c. 31, and 49 G. 3, c. 68 (t), it is the duty of the parish officers, to take security from the putative father of a bastard child, as therein prescribed, merely to indemnify the parish; and therefore, if, on the arrest of the father, they take a promissory note, or other security, absolute for a sum certain, it is void; or, at least, the parish has no claim beyond the amount of the actual charges and expenses sustained (u). And an action lies to recover back money paid to parish officers, by a person taken up under a warrant, as the putative father of a bastard child, by way of a bargain with the parish, to be released from all liability respecting the child, against those who received the money; although, before the commencement of the action, they may have gone out of office, and accounted with their successors for so much of the money as was not expended on the child, and its mother, during her lying in. However, in such action, the plaintiff is only entitled to recover the surplus, after these charges have been deducted (x). So where the mother of the child deposited a sum of money to meet any charges which might be incurred, and she had never been taken before a magistrate, and the child had never, though still living, become a charge to the parish, it was decided that the mother might recover the amount from the overseers (y). But a bond conditioned for payment to the overseers of a parish, of a certain weekly sum, so long as a bastard child shall continue chargeable, is not illegal (≈). And it appears, that where the parish officers do not take the security, adversely, and by virtue of the provisions of the statutes, but the putative father voluntarily comes forward, it is legal to receive from him a bond, conditioned "for the payment of a sum certain, every three months, until the child should be deemed capable of providing for itself." And it has been held, that the condition of such a bond, notwithstanding the word "deemed," is sufficiently certain (a). So, a voluntary bond from the putative father to the parish officers, conditioned for the " payment of 2s. 6d. per week, for all costs and damages concerning the child during its life, and whilst it should be provided for at the expense of the parish," is valid and it is not a good plea, to an action on such bond, that the obligor was able and willing to maintain the child without the (u) Cole v. Gower, 6 East, 110; Wilde v. Griffin, 5 Esp 142; Beele v. Wingfield, 11 East, 47; The Overseers of Saint Martin in the Fields v. Warren, 1 B. & Ald. 491, 495. (r) Townson v. Wilson, 1 Camp. 396. (y) Clarke v. Johnson, 11 Moore, 319; 3 Bing. 424, S. C. (z) Strangeways v. Robinson, 4 Taunt, 498; Pope v. Sale, post, 230. (a) Middleham v. Bellerby, 1 M. & Selw. 310. assistance of the parish, and that he requested the parish officers to deliver the child to his care, and that therefore they were damnified of their own wrong (b). By the 54 G. 3, c. 170, s. 8, all securities (c) to indemnify a parish against the expenses of maintaining illegitimate children, are vested in the overseers of the poor for the time being; " who may sue thereon by that description. This provision renders it necessary to sue upon a bastardy bond, in the names of the overseers who were in office when the action was commenced, although they may not be the overseers to whom the bond was given (d). A security for the fair expenses of the prosecution, agreed to be given, at the recommendation of the Court of Quarter Sessions, by a defendant who stood convicted before them, of a misdemeanor, in ill treating his parish apprentice, for which the parish officers had been bound over by recognizance to prosecute him, under the statute 32 G. 3, c. 57; and the giving of which security was considered by the Court, in abatement of the period of imprisonment to which he would otherwise have been sentenced; is legal (e). Although neither parish officers nor parishioners are a corporation, yet an agreement by them, which is beneficial to the parish, may sometimes bind the parish and its succeeding officers (ƒ). The plaintiff's house being so near the church, and she being so indisposed, that the five o'clock bell, rung in the morning, disturbed her, and she being about to quit her house in consequence, she, the plaintiff, came to an agreement, in writing, with the churchwardens and inhabitants, at a vestry, that the plaintiff should erect a cupola and clock at the church; and in consideration thereof that the five o'clock bell should not be rung. It was held in equity, that the agreement bound the succeeding churchwardens and inhabitants, and an injunction against ringing this bell was granted (g). We have already seen, that guardians of the (b) Pope v. Sale, 7 Bing. 477; 5 M. & P. 336, S. C. Qy. Whether such a plea would be good, if the bond were conditioned generally to indemnify the parish; see id. (c) See Pope v. Sale, 5 M. & P. 350, per Tindal, C. J. (d) Addey v. Woolley, 8 Taunt. 691; 3 Moore, 21, S. C. (e) Beeley v. Wingfield, 11 East, 46; Kirk v. Strickwood, 4 B. & Ad. 421; 1 N. & M. 275, S. C. (f) See Martin v. Nutkin, 2 P. Wms. 266; 1 Powell on Cont. 114; Comyn on Cont. 396; 1 Woodd. V. L. 371; Lamb. 71; Wood's Inst. 93. See further, post, 232, 233, 236. (g) Martin v. Nutkin, 2 P.Wms.266. |