TRUSTEES, act, matter, or thing not authorized by such act, or by the said recited acts (3 Geo. IV. c. 126; 4 Geo. IV. c. 95), such trustee shall be personally LIABILITY of. liable to the trust for the repayment of the money so expended, at the suit 7 & 8 Geo. 4, c. 24. of any person or any one trustee, or of the clerk to such trustees, on behalf of such trust; and that all the costs and charges of such suit, over and above any costs and charges recovered from the defendant in such suit, shall be paid and borne by such trust." Sect. 3. "That no trustee shall be personally subject or liable (a) to be No trustee to be charged (except as next herein-before mentioned) with the payment of any personally liable as sum or sums of money laid out or expended in or towards the making, repairing, or altering any turnpike road, nor shall execution issue against the goods and chattels of any trustee by reason of his having acted as such trustee, or having signed or authorized or directed any contract or security to be entered into relating to any such road, unless, in such contract or security, such trustee shall have in express words rendered himself so personally liable." By 4 Geo. IV. c. 95, s. 61, it is provided, "That the trustees or commissioners for making or maintaining any turnpike road, shall not be personally subject to or liable to be charged with the payment of any sum or sums of money, by reason of their having signed or executed any mortgage, or assignment by way of mortgage, or other security to be made by virtue or in pursuance of any act for making or maintaining any turnpike road: provided also, that in case any action, suit, or prosecution, shall be brought or commenced against any such trustee or commissioner, for any thing done by virtue or in pursuance of the said recited act (3 Geo. IV. c. 126), or this act, or any such act for making or maintaining any turnpike road, all the costs, charges, and expenses of defending such action, suit, or prosecution, or which such trustee or commissioner shall incur in consequence thereof, shall be defrayed out of the tolls arising on the turnpike road, for which such trustee or commissioner shall act." As to the recovery from trustees of money for compensation or satisfaction for materials, damage, &c. see the 4 Geo. IV. c. 95, s. 71, post, 137. As to actions against trustees, see post, 137, and Sect. XVI. Decisions as to Personal Liability of Trustees for Torts]-Notwithstanding the above enactments, if the trustees, in the performance of any act which they are empowered to do, behave arbitrarily, wantonly, or oppressively, or are even so careless and negligent as to cause a consequential damage, which might well have been avoided; it seems, that in such case they will be personally liable to an action for the injury incurred. See Jones v. Bird, 5 B. & A. 837; 1 D. & R. 497, S. C.; Moxon v. Leader, 2 Sir W. Bl. 924; Humphreys v. Mears, 1 M. & R. 187. In general, however, no action lies against commissioners (or their servants) appointed under an act of Parliament to effectuate its provisions, unless they exceed their jurisdiction, or do not act carefully, and clearly not where the act gives another remedy. Governor and Company of Cast Plate Manufacturers v. Meredith, 4 T. R. 794. And where trustees under the general turnpike act, by improving the course of a public road, had effected a consequential injury to a private individual, whose estate abutted on the road; it was held, that they were not liable to an action, it appearing that they had not exceeded the authority given them by the statute. Bolton v. Crowther, 2 B. & C. 703; 4 D. & R. 195, S. C. By a turnpike act, trustees were appointed with authority to cut drains in lands adjoining the roads, making reasonable satisfaction to the owners thereof. By the same act, it was provided that all actions for any thing done in pursuance of the act should be brought within six months after the doing the thing complained of. A drain was cut by an order signed by a competent (a) Without this enactment, the trustees would have been otherwise per sonally liable. See Horsley v. Bell, Trustees not personally liable for mortgages. Costs of proceedings against, to be paid out of tolls, &c. Decisions as to personal liability of trustees for torts. TRUSTEES, number of trustees, and according to the plan of a surveyor, in land adLIABILITY OF. joining the plaintiff's, by which the latter was overflowed. An action was brought against one of the trustees only, more than six months after the act done and the first injury sustained, but within six months after a subsequent injury accrued-it was held, 1st, that the action, if it could have been supported at all, was well brought against the defendant only; but 2dly, that the trustees, having acted to the best of their skill, and with the best advice, were not answerable for the damage which had accrued. Sutton v. Clarke, 1 Marsh. 429; 6 Taunt. 29, S. C.; and see Lloyd v. Wigney, 6 Bingh. 489, ante, 84, and post, Sect. XVI. Contracts. The trustees of a public road, who were empowered and required by act of Parliament to place lamps along the road, if they should think necessary, and to make contracts for the cleansing of the road, and to take a night toll for the purpose of enabling them to light and watch the same, were held not liable in an action upon the case, for an injury suffered by an individual in crossing the road at night, by falling over a heap of scrapings left on the road side, after cleansing the road without any lights. Et per Lord Ellenborough—“ If, by omitting to put up lamps where it is necessary, the trustees are guilty of a breach of public duty, they may be indicted; but to hold, that every trustee of a road is liable in damages for such an accident as this, would, I conceive be going further than any case warrants." Harris & Wife v. Baker, 4 M. & S. 27. It seems also, that trustees of a public road, who, in furtherance of the trusts thereof, employ others under them, are not to be considered in the same light as private individuals; and, therefore, are not answerable for their misconduct; Id,; unless, perhaps, where they personally interfere in the management of the works. Humphreys v. Mears, 1 M. & R. 187. And where the trustees of a turnpike road, who were employed to make contracts for the cleansing of the road, engaged with a contractor, and the labourers employed by him did the work so negligently as to injure a passenger, the trustees were held not to be liable, since the labourer could not be considered as in their employment. No duty was imposed upon the trustees to see that the labourers did not commit any nuisance. Ibid. But although the trustees themselves may not be liable to make compensation for damage occasioned by acts ordered by them to be done, which are within the scope of their authority, if they proceed with sufficient caution; yet it should seem, from Hall v. Smith, 2 Bingh. 156, that the person who is appointed to execute such acts, is liable for any negligence in their performance, post, 140. Decisions as to Personal Liability of Trustees for Contracts]-Trustees may make themselves personally liable on contracts. Thus, certain of the trustees under an act of Parliament for making a road, the fund provided by the act being neither sufficient nor available for the object until the completion of the road, raised money on their personal credit to carry on the work, and afterwards brought an action against the other trustees, who had attended some of the meetings, for payment of an equal proportion of the whole expense of the road, or at least for a proportion of the expense authorized at the meeting or meetings which they had attended: It was held at first by the court of session, that the mere fact of presence at meetings did constitute a prima facie ground of personal liability, and that the onus lay on the defenders to shew, if they could, facts and circumstances exempting them from that personal liability. But, on appeal to and a remit by the House of Lords, it was held that the mere fact of presence at meetings did not constitute a prima facie ground of personal liability; and that the onus lay upon the pursuers, to shew acts, beyond mere attendance, done by the defenders, to render them personally liable; and therefore, the defences of those trustees against whom nothing was alleged and proved, except the mere fact of presence at meetings, were sustained; but as to those trustees who signed contracts, they were held personally liable for a proportion of the expense of such contracts as they signed: and thus judgment was affirmed TRUSTEES, in Dom. Proc. And Lord Eldon said—" That when trustees confined themselves to the act of Parliament, and the application of the parliamentary LIABILITY OF. funds, they were not personally liable; but that this also rested on strong principle, that, as the trustees must know whether there are funds to carry on the work, when they contract with those who do not know, they shall be considered as representing that there are funds, and shall be bound to provide funds to pay the contractors." Higgins v. Levingstone & others, 4 Doc's P. C. 341. See 3 B. & A. 47; 2 D. & R. 307; 1 B. & C. 160, S. C.; Gow's C. N. P. 117; R. & M. C. N. P. 229. (10) Recobery from Trustees of Money for Compensation for Materials, &c. By stat. 4 Geo. IV. c. 95, s. 71, "When and as often as any sum or Goods vested in sums of money, shall be directed or ordered to be paid by any justice or trustees, justices of the peace, in pursuance of the directions of the said recited act to distress, upon for damages or materials. (3 Geo. IV. c. 126), or this act, orany act relating to turnpike roads, as or by or treasurer, liable way of compensation or satisfaction for any materials or costs, or for any non-payment of damage, spoil, or injury, of any nature or kind whatsoever, done or com- compensation mitted by such trustees or commissioners, or any person or persons acting by or under their authority, and such sum or sums of money shall not be paid by the said trustees or commissioners to the party or parties entitled to receive the same, within ten days after demand in writing shall have been made from the clerk to the said trustees or commissioners, or their treasurer, in pursuance of the direction or order made by such justice or justices, and in which demand the order of such justice or justices shall be stated, then and in such case the amount of such compensation or satisfaction shall and may be levied and recovered by distress and sale of the goods and chattels vested in such trustees or commissioners by virtue of any act for making or repairing turnpike roads, or of the goods and chattels of their treasurer for the time being, under a warrant to be issued for that purpose by such justice or justices, which warrant any such justice or justices is and are hereby authorized and required to grant under his hand and seal, or their hands and seals, on application made to him or them for that purpose by the party or parties entitled to receive such sum or sums of money, as or by way of compensation or satisfaction for any such materials, costs, damages, spoil, or injury as aforesaid; and in case any overplus shall remain after payment of such sum or sums of money, and the costs and expenses of hearing and determining the matter in dispute, and also the costs and expenses of such distress and sale, then and in such case such overplus shall be returned on demand to the said trustees or commissioners, or to their treasurer for the time being, as the case may be provided always, that it shall and may be lawful for such His indemnity. treasurer to retain, out of any monies which he shall have received or shall receive in pursuance of any such act, or the said recited act, or this act, all such damages, costs, charges, and expenses as he shall have sustained or be put unto by virtue of any such warrant as aforesaid (a)." (11) Actions by and against Trustees. By the 3 Geo. IV. c. 126, s. 74," The trustees and commissioners of every turnpike road may sue and be sued in the name or names of any one of such trustees or commissioners, or of their clerk or clerks for the time being; and that no action or suit to be brought or commenced by or against any trustees or commissioners of any turnpike road, by virtue of (a) 1 Chit. Col. Stat. 512. Trustees may sue name of their clerk, &c. and be sued in the ACTIONS BY AND AGAINST TRUSTEES. 3 Geo 4, c. 126. For injuries to property. On contracts. If action be brought against a trustee, evidence of his being ap pointed and acting, sufficient. Limitation and notice of action. Decisions on enactments. this or any other act or acts of Parliament, in the name or names of any one of such trustees or commissioners, or their clerk or clerks, shall abate or be discontinued by the death or removal of such trustee, commissioner, clerk, or clerks, or any of them, or by the act of such trustee, commissioner, clerk, or clerks, or any of them, without the consent of the said trustees or commissioners; but that any one of such trustees or commissioners, or the clerk or clerks for the time being to the said trustees or commissioners, shall always be deemed to be the plaintiff or plaintiffs, defendant or defendants, (as the case may be), in every such action or suit: provided always, that every such trustee, commissioner, clerk or clerks, shall be reimbursed and paid out of the monies belonging to the turnpikeroad, for which he or they shall act, all such costs, charges, and expenses as he or they shall be put unto, or become chargeable with, or liable to, by reason of his or their being so made plaintiff or plaintiffs, defendant or defendants." The 60th section, ante, 128, gives the trustees, &c. power to sue for injuries done to the property thereby vested in them. The 78th section of the 4 Geo. IV. c. 95, relates to suits by trustees on contracts for amending, &c. the roads. See post, Sect. VIII. (7). As to the Liability of Trustees for torts or contracts, see ante, 134 to 137. Sect. 134 of 3 Geo. IV. c. 126, enacts, "That in all cases where any action shall be brought by or against any trustee or trustees, or commissioner or commissioners of any turnpike road, evidence of such trustee or trustees, commissioner or commissioners having acted as such, together with the act of Parliament by which he or they was or were appointed, or the order, or a copy of the order, for his or their appointment or election, in case he or they was or were appointed or elected by the trustees or commissioners, shall be sufficient proof of his or their being a trustee or trustees, commissioner or commissioners." See the 9 Geo. IV. c. 77, s. 2, as to entries of proceedings being evidence, post, Sect. XVII. As to the limitation and notice of actions, &c. see post, Sect. XVI. A. agreed in writing to pay the rent of certain tolls, which he had hired, "to the treasurer of the commissioners;" it was held, that no action for rent could be maintained in the name of the treasurer. Pigott v. Thompson, 3 B. & P. 147. A local act directed, that if any person had cause of action against the trustees, he should sue the treasurer; it was decided, that such proceeding was substituted only for such action as might be maintained against the whole body of trustees, and that an action would not lie against him for the act of five trustees, though they formed a quorum. Everett v. Cook, 7 Taunt. 1. But in another case, where one trustee was sued for an act done in pursuance of an order signed by a competent number of trustees, the action was held to lie. Sutton v. Clarke, 1 Marsh. 429; 6 Taunt. 29, S. C. A paving act empowered commissioners to sue in the name of their clerk for any sums due from certain persons therein named, or any other person or persons, payable by virtue of that act; and enacted, that if any treasurer, collector, officer, or other person appointed by the commissioners to collect money, should become bankrupt with money of the commissioners in his hands, his assignees should pay the money in full, in preference to all other debts except debts due to the king: it was held, that the commissioners might sue, in the name of their clerk, the assignees of their banker, to recover the amount of their money in his hands at the time of his bankruptcy, though he had received from the commissioners no written appointment as their banker. Frost v. Bolland, 8 D. & R. 384; 5 B. & C. 611, S. C. If judgment be obtained against the clerk in an action brought against him, as such clerk, in pursuance of the above enactment of 3 Geo. IV. c. 126, s. 74, or any other similar enactment allowing such action against him, instead of against the trustees or commissioners, execution cannot issue against the clerk personally. Wormwell v. Hailstone, 6 Bingh. 668. VI. Officers. OFFICERS IN GENERAL. HEREIN of, 1. Officers in General, their Appointment, Accounts, and Li- Division of subabilities; 2. Treasurer and Clerk; 3. Surveyor and Clerk; and 4. Collec- Ject. tors and Receivers. (1) Officers, their Appointment, Accounts, and Liabilities. ral. In general, by stat. 4 Geo. IV. c. 95, s. 43, "The trustees or commisAppointing offisioners for making or maintaining any turnpike road may, and they are cers, &c. in genehereby empowered, by writing under their hands, to appoint (a) such collector or collectors of the tolls arising on such road, and clerk or clerks, treasurer or treasurers, surveyor or surveyors of the said road, and such other officers as the said trustees or commissioners shall think necessary; and such_collectors, clerks, treasurers, surveyors, and other officers, or any of them, from time to time to remove, and, on removal, death, or resignation of any such collectors, clerks, treasurers, surveyors, or other officers, to appoint chers in their stead; and may and are hereby authorized and empowered, Salaries, &c. out of any of the monies arising on such turnpike road, to allow and pay to the several collectors, clerks, treasurers, surveyors, and other officers, and to such other person or persons as shall be assisting them or any of them, in er about the execution of the act for making or maintaining such road, and the said recited act (3 Geo. IV. c. 126) and this act, such salaries, rewards, and allowances for their attendance, care, labour, and services, as such trustees or commissioners shall deem reasonable." Victuallers not to hold places of pro t Officers to hold their offices after any act is repealed, unless removcd by trustees. If any salary, fee, or emolument appertains to the appointment, it must Stamps. be stamped. See the Stamp Act, title Grant; R. v. Lew, 8 B. & C. 655. By stat. 3 Geo. IV. c. 126, s. 75, "No person shall be capable of holding any place of profit under any trustees or commissioners of any turnpike road, who shall sell any wine, ale, spirituous liquors, or provisions by retail." By 9 Geo. IV. c. 77, s. 15, "The treasurer, if appointed consistently with the provisions of the said recited acts of the third (c. 126), fourth (c. 95), and seventh and eighth (c. 24) years of the reign of his present Majesty, and each and every clerk, receiver, collector, surveyor, and other officer appointed ander, or employed in the execution of any act, for making or maintaining any turnpike road which may have expired or been repealed, shall hold and enjoy such their several and respective offices and employments, until removed therefrom respectively by the trustees for executing any subsequent act for maintaining the same turnpike road, and each and every such treasurer, clerk, receiver, collector, surveyor and other officer, shall have the like powers and authorities for the purpose of any such subsequent act, and shall be subject and liable to the like pains and penalties, and to the like powers of removal, and to the like rules and regulations in all respects whatsoever, as if he or they had been appointed under or by virtue of such subsequent act.” As to the accounts of officers in general, see ante, 132 to 134. By stat. 3 Geo. IV. c. 126, s. 136," Every constable, headborough, or tithingman refusing or neglecting to put this act into execution, or to account for and deliver any forfeiture or penalty according to the directions of this act, and every surveyor of any turnpike road, and every toll collector, and all other persons employed or to be employed by any trustees or commissioners appointed or to be appointed for the repairing roads, who do or shall receive salaries or rewards, who shall wilfully neglect, for the space of one week after any offence being to their knowledge committed, to lay such information upon oath before one or more of his Majesty's justices of the peace for the limit wherein such offence was committed, as by this act is directed, shall, upon due information (b) made upon oath before one of (a) Form (No. 153), post. (b) Form (No. 90), post. Accounts. Penalty on con stables and persons employed with salaries refusing to execute the act, lil. |