the course of a public road. I must, therefore, understand, that when the legislature gave the trustees, in general words, power of "improving the course or path of any of the several roads under their care and management," they meant to give them the power of doing so in the usual and ordinary mode; and in my judgment this act of parliament has the same effect as if it had enumerated and specified certain hills, describing them by their names and situations, and had given authority, in terms, to the trustees of the road to lower them. I am, therefore, clearly of opinion that the act done, which was that of lowering a hill upon a public road, was an act which the trustees were authorised to do, under the terms, "alter and improve the course or path" of this road. The act done being one which they were authorised to do, then, the second question is, whether, by law, an individual, who has sustained some special injury from the act so done, can maintain an action at common law against them. That it cannot has been expressly held by Lord Kenyon, in The Plate Glass Company v. Meredith. The language of that learned Judge is very strong, and is also very general, not being confined to the special provisions of the act of parliament then under consideration. He says, "If this action could be maintained, every turnpike act, paving act, and navigation act, would give rise to an infinity of actions. If the legislature think it necessary, as they do in many cases, they enable the commissioners to award satisfaction to the individuals who happen to suffer. But if there be no such power the parties are without remedy, provided the commissioners do not exceed their jurisdiction. But it does not seem to me that the commissioners acting under this act have been guilty of any excess of jurisdiction. Some individuals suffer an inconvenience under all these acts of parliament, but the interests of individuals must give way to the accommodation of the public;" and Buller, J. says, "There are many cases in which individuals sustain an injury for which the law gives no action; for instance, pulling down houses or raising bulwarks for the preservation and 1824. BOLTON V. CROWTHER. 1824. BOLTON V. CROWTHER. defence of the kingdom against the King's enemies. The civil law writers, indeed, say, that the individuals who suffer have a right to resort to the public for a satisfaction; but no one ever thought that the common law gave an action against the individual who pulled down the house, &c. This is one of those cases to which the maxim applies salus populi suprema est lex.' If the thing complained of were lawful at the time, no action can be sustained against the party doing the act." That is the opinion of these two learned Judges; and it seems to me that that case is a decisive authority upon the second point. Here the trustees have done an act which they were authorised to do by law, and it being found by the jury that in doing it they did not conduct themselves arbitrarily, oppressively, or carelessly, I am of opinion that the law provides no means of giving satisfaction to this plaintiff. BAYLEY, J.-I am of the same opinion; and I think it would be most fitting, if any doubt should be entertained of the liability of persons in the situation of this defendant, that such doubt should be set at rest. In addition to the case of The Plate Glass Company v. Meredith, it is laid down most distinctly by Gibbs, C. J., in Sutton v. Clarke, that when a person stands in the situation in which this defendant stood, having a public trust to perform, and a pub-. lic duty cast upon him by act of parliament, he is not to be liable for any consequential injury which may result from his conduct, provided he acts not arbitrarily, nor wantonly, but in the sound exercise of his discretion; and I agree entirely with my Brother Park, in that part of his direction in which he told the jury that the trustees were bound by law to do what they did in this instance. If, upon surveying a road, the trustees find that a material benefit will result to the public from lowering a hill and filling up a valley, and that it cannot be done without injury to private individuals, I think, in the sound exercise of their discretion, it is their bounden duty to do what is necessary for the public benefit. From the manner in which this case was presented to our notice, I thought it was one of the most important ever brought under the consideration of the Court, and that the plaintiff had to complain of a most grievous injury. It appears, however, that the only injury which the plaintiff has sustained, is that three out of six accesses to his house have become useless. It is conceded that the trustees had a right, in the exercise of their discretion, to remove all obstructions to the public road. If so, and they have not acted arbitrarily or wantonly, then it is perfectly clear that no action is maintainable. The case of Leader v. Moxton seems to be quite consistent with the decisions in Sutton v. Clarke, and The Plate Glass Company v. Meredith, because in that case, according to the report in Sir William Blackstone, the decision of the Court proceeded on the ground that the commissioners had grossly exceeded their authority by an unnecessary act, whereby the greatest possible inconvenience was experienced by private individuals. In this instance it does not appear to me that these trustees have exceeded their power. It was left as a question to the jury, whether they had acted arbitrarily, wantonly, or improperly. The jury were of opinion that they had not, and that being the case, and considering that these trustees had a public duty to perform, I am of opinion that they are not liable to an action. HOLROYD, J.-It is a general rule of law, that where a public officer is acting in the discharge of his duties, no action will lie against him for the consequences of his acts, unless he either exceeds or abuses his authority; and that is a sound rule, because to punish a man for a result produced by his performance of a duty imposed upon him by law, would be equally absurd and unjust. The defendant in this case has been guilty of no excess or abuse of his authority, but has acted properly and bonâ fide in the discharge of his duty, and on that short ground I am clearly of opinion that this action will not lie against him. 1824. BOLTON v. CROWTHER. 1824. BOLTON V. LITTLEDALE, J.-This action is not maintainable. I agree in the maxim "sic utere tuo ut alieno non lædas;" but it does not apply to this case, because the defendant merely CROWTHER. acted in discharge of a duty imposed upon him by the act of parliament. That act was past for the benefit of the public, not of the trustees, and as it does not provide for any compensation to those who may be damnified by its operation, the trustees are not liable to make any. It does not appear that the defendants entered upon the plaintiff's land in the progress of the work, though I am of opinion that they would not have been liable as trespassers even if they had done so. To the cases already cited, and which are quite decisive of the present, Jones v. Bird (a) may be added, as supporting the same principle, because there it was held that the plaintiff might recover only upon the ground that the defendants had been guilty of negligence. Rule refused. (a) Ante, vol. i. 497. Saturday, May 8. Declaration for striking plaintiff's cow divers blows, whereof the animal died. fendant had HANCOCK V. SOUTHALL, THIS was an action against the defendant for killing a certain cow of the plaintiff. The declaration stated that the defendant struck the plaintiff's cow divers blows, by reason whereof she died. At the last Herefordshire Assizes, beProof, that de- fore Park, J., it appeared that the defendant, having beaten beaten the cow the plaintiff's cow unmercifully, the plaintiff, in order to put unmercifully, an end to the animal's sufferings, put it to death. It was oband that plaintiff, to shorten jected for the defendant that this was a variance, for non constat that the animal died of the blows given by the defendant. The objection was overruled, and the plaintiff had a verdict. the animal's miseries, put it to death: Held, after verdict, no variance. Twiss now moved to enter a nonsuit, and renewed the objection; but PER CURIAM. This objection is cured by the verdict. No doubt the jury thought that the beating which the animal received, made her death necessary, and that it was an act of mercy to shorten her sufferings by death. 1824. HANCOCK v. SOUTHALL. Rule refused. CAMBRIDGE v. ANDERTON. ASSUMPSIT on a policy of insurance for 3000l. on the seas. Saturday, Where a vesmaged by a sea peril, that sel was so da in order to upon a voyage ship Commerce, at and from Quebec to Bristol, or the ship's port in Great Britain. Loss averred to be by perils of the Plea, non assumpsit, and isue thereon. At the trial render her seabefore Abbott, C. J. at the London Adjourned Sittings after would cost as last term, it appeared in evidence that the Commerce, of the much to reburthen of 372 tons, having taken in a full cargo of timber, was originally pair her as she sailed from Quebec on the 8th July, 1823, in good order, worth, and the captain sold and with a sufficient crew, and proceeded down the river her to a purSt. Lawrence, destined for the port of Bristol. On the chaser who partially re10th July the pilot quitted the ship off the Isle of Bie, paired her, about 100 miles below Quebec, where pilots are usually dis- and sent her charged. On the 12th she was off a place called the Pups which she never completed of Matan, which are high hills, about twenty miles from the in conseshore on the south side of the mouth of the river St. Law- quence of her infirmity: rence, and about two hundred miles from Quebec, where the Held, first, sea is as boisterous as in the ocean. A thick fog came on, derwriters with the wind from the eastward, blowing a fresh gale, and a considerable sea was running. The ship took in sail, and continued tacking under easy sail, the wind being from the E. to E. N. E. until the next day. On the 13th, about halfpast eight o'clock A.M. she struck, about five miles on the westward or Quebec side of Matan, not a quarter of a mile from the shore, which was invisible from the thickness of the fog. The force of the first shock was so great, that the rudder was unshipped, the lower part of the rudder case torn that the un were liable as abandonment sary to enti tle the owner to recover. |