regulating the manner in which vessels shall enter the docks, &c. It was argued that the effect of these clauses was to confine the duty of the trustees to that of selecting proper officers, and they could not be responsible further. The case of Metcalfe v. Hethrington (9) was cited as an authority for this position, and we think it is a decision much in point. The Court of Exchequer there, in construing the Maryport Harbour Act, attributed this effect to enactments not very dissimilar to those now in question, and we agree, if this was so, the consequence would follow that the plaintiff's remedy would be, not against those who appointed the officer, but only against the officer himself. But we cannot agree in so construing the present acts.

As has been already pointed out, clauses almost identical with those now in question are inserted in every Harbour and Dock Act, whether the docks be, as in the present case, the property of public commissioners or of a trading company. And we cannot think that it was the intention of the legislature to deprive a shipowner who pays dues to a wealthy trading company, such as the St. Catherine's Dock Company for instance, of all recourse against them, and to substitute the personal liability of a harbour-master, no doubt a respectable person in his way, but whose whole means, generally speaking, would not be equal to more than a very small per-centage of the damages, when there are any. If these enactments are in the present case so construed as to relieve the Mersey Board from liability, the corresponding enactments in the Harbours, Piers and Docks Clauses Act, 1847, must also be so construed as to relieve all trading dock companies from liability, and that we think a reductio ad absurdum. This was not brought to the notice of the Court of Exchequer when deciding Metcalfe v. Hethrington (9). With the greatest respect for those who joined in that decision, we think it was erroneous.

For these reasons, we answer both your Lordships' questions in each of these cases in the affirmative, that is, in favour of the plaintiff's below, the defendants in

error.

The LORD CHANCELLOR.-These are two appeals, depending very much upon the

same principles as those which led to the decision of your Lordships' house last year, in the case of The Mersey Docks and Harbour Board v. Cameron (12).

The question there was, whether the trustees of the docks and harbour, who are a body having no beneficial interest in the tolls and other produce of the docks, were rateable to the relief of the poor. The argument was, that, as a public body, not receiving tolls for their own benefit, they were not liable; but your Lordships, after a long argument, decided that they

were.

The question in 'he present two cases is different. Both cases arise out of one transaction. A ship called the Sierra Nevada in entering, or endeavouring to enter, one of the docks sustained injury, by reason of a bank of mud left negligently at its entrance. The ship and the cargo were damaged. Two actions were brought against the appellants; one by Gibbs, as owner of the cargo, the other by Penhallow, as owner of the ship. I do not think it necessary to go through the pleadings. In both cases the Exchequer Chamber held that the appellants were liable. In both cases they have appealed; and the ground of appeal is, that they are not a public company deriving benefit, like a railway company, from the traffic, but a public body of trustees, constituted by the legis lature, for the purpose of maintaining the docks, and for that purpose having authority to collect tolls, to be applied in the maintenance and repair of the docks, then in paying off a large debt, and ultimately in reducing the tolls for the benefit of the public.

In the case of Gibbs, it must be taken, as admitted by the appellants, that knowing that the dock was, by reason of an accumulation of mud thereon, in an unfit state to be navigated, they did not take reasonable care to put the same "into a tit state for that purpose"; . whereupon the Sierra Nevada, in endeavouring to enter into the dock, struck against the mud, and the cargo thereby became damaged. In the other case (which did not arise upon a demurrer) it must be taken as an established fact that the appellants had, by their ser vants, the means of knowing the dangerous state of the dock, but were negligently

ignorant of it. It is plain that if the appellants are liable in the former case, they must be liable also in the latter. If the knowledge of the existence of the mudbank made them responsible for the consequences of not causing it to be removed, they must be equally responsible if it was only through their culpable negligence that its existence was not known to them. The principles, therefore, which are to regulate the judgment of the House in the one case must also decide it in the other; and the question, therefore, is, what are the principles which regulate the liabilities of such a body as that of the Mersey Docks and Harbour Board.

Where such a body is constituted by statute, having the right to levy tolls for their own profit, in consideration of their making and maintaining a dock or a canal, there is no doubt of their liability to make good to the persons using it any damage occasioned by their neglect in not keeping the works in proper repair. This was decided by the Court of Queen's Bench, and their decision was affirmed in the Court of Error in the case of The Lancaster Canal Companyv. Parnaby (6). The ground on which the Court of Error rested their decision in that case is stated by Chief Justice Tindal to have been that the company made the canal for their profit, and opened it to the public upon the payment of tolls; and the common law in such a case imposes a duty upon the proprietors to take reasonable care, so long as they keep it open for the public use of all who may choose to navigate it, that they may do so without danger to their lives or property.

The only difference between that case and those now standing for decision by your Lordships is, that here the appellants, in whom the docks are vested, do not collect tolls for their own profit, but merely as trustees for the benefit of the public. I do not, however, think that this makes any difference in principle in respect to their liability. It would be a strange distinction to persons coming with their ships to different ports of this country, that in some ports, if they sustain damage by the negligence of those who have the management of the docks, they will be entitled to compensation, and in others they will not,

such a distinction arising not from any visible difference in the docks themselves, but from some municipal difference in the constitution of the bodies by whom the docks are managed.

It is impossible to argue, after the decision of this House in the case of The Mersey Docks and Harbour Board v. Cameron (12), that the appellants are not in the occupation of the docks; they are as much the occupiers of them as if they received the tolls and dues for their own use and benefit. The principle of that decision, coupled with that of The Lancaster Canal Company v. Parnaby (6), must govern this case. The appellants are the occupiers of the docks, entitled to levy tolls from those who use them, and so are liable to the same responsibilities as would attach on them if they were the absolute owners, occupying and using them for their own profit.

It cannot be denied that there have been dicta, and perhaps decisions, not capable of being reconciled with the result at which I have arrived; but the whole series of authorities has been so fully brought under review, in the very able and elaborate opinion of the learned Judges delivered by Mr. Justice Blackburn, in answer to the questions put to them by your Lordships, that I do not feel myself called on to do more than to express my concurrence in that opinion.

I content myself, therefore, with moving your Lordships to give judgment, in both cases, for the defendants in error.

LORD WENSLEYDALE. The Court of Exchequer Chamber, in both these cases, founded their judgment on that of the Exchequer Chamber in the case of The Lancaster Canal Company v. Parnaby (6), in which case there was a company incorporated by act of parliament, for the purpose of maintaining a canal, to be open for the use of the public on payment of rates, which the canal company might receive for their own benefit (that is, the profits to be divided amongst the shareholders); and the Court held that the common law imposed a duty on the proprietors, not, perhaps, to repair the canal, or absolutely to free it from obstructions, but to take reasonable care, so long as they kept it

open for the use of all that might navigate it, that they might navigate it without damage to their lives or property.

Of the propriety of this decision there could be no doubt, where the profits were received for the benefit of the company. In the present case, the dock board do not receive the rates for their own use, but to be applied to great public purposes for the benefit of all the subjects of the realm; that is, to maintain the docks for any who choose to frequent them, and to pay the debt incurred in their construction; and the Court decided that there was no difference between that case and the present.

If this question were res integra, not settled by the authority of decisions, I am strongly inclined to think that this decision of the Courts could not be supported. It would appear to me that this case falls within the principle of those cases which have decided that when a person is acting as a public officer on behalf of Government, and has the management of some branch of government business, he is not responsible for the neglect or misconduct of servants, though appointed by himself, in the same business. This was the principle of the decision in Lane v. Cotton (13) and Whitfield v. Le Despencer (14), and other cases. The subordinates are the servants of the public, not of the person or persons who have the superintendence of that department, even if appointed by them.

Thus, the Postmaster-General, who has the management of one department of the public service-the duly receiving and conveying and delivering letters from and to different places, which is eminently beneficial to the whole community, and causes profit to the Government-is not responsible for any of the servants of the Postoffice department, though he might appoint or dismiss them; and whether the Postmaster-General be an individual, as he is now, or two, as in the case of Whitfield v. Le Despencer (14), or if more, however numerous, or the Crown were to make a corporate body for the regulation and government of the Post-office, neither individuals nor a corporate body would be responsible for the neglect of their servants. In this case, if there had been a PortmasterGeneral for all the ports of England, to take care that the receipt and discharge of

goods and the repairs of ships should be easy and convenient, and the receipt of Customs duties convenient; or suppose his duties to be limited to a certain number of ports, or suppose a corporation were appointed instead of an individual, would it cause that corporation to be responsible for the defects of its officers, by whom alone they act in the management of the docks, and in the due discharge of its duties towards the public, on whose behalf it was acting?

If we had now only to review a great number of cases connected with this subject decided in different Courts, many contradictory and very many unsatisfactory, I should be disposed to abide by the decision of the case of Metcalfe v. Hethrington (9), where the trustees and managers of the harbour were held not to be responsible for the default of the persons actually employed in conducting the business of the harbour.

If this case depended only on the decision of the Courts below, I should feel great difficulty indeed in supporting the decision of the Court of Exchequer Chamber; but I cannot help thinking that the decisions of your Lordships' House, which are, no doubt, binding upon your Lordships and all inferior tribunals, have gone so far that they have concluded the question, and ought to be considered as deciding that the appellants are responsible. In the case of The Mersey Docks and Harbour Board Trustees v. Cameron (12), and Jones v. the Mersey Docks and Harbour Board Trustees (12), in July, 1864, your Lordships, upon a full review and consideration, after a difference of opinion between the consulted Judges, decided that the appellants, the Mersey Dock and Harbour Board, were liable to be rated as occupiers, though they occupied those docks for the purposes of those who frequented the port, and derived no benefit from the occupation; and that they did not occupy for public purposes in such a sense as to exempt them from liability to poor-rates.

It seems to follow, therefore, that they were not considered as being on the same footing as occupiers of public buildings for Post-office or other Government purposes, but were liable as mere private individuals; and if so, it is difficult to say that they

were acting on behalf of the public for the public benefit, and, therefore, were irresponsible for the neglect and default of their servants, by whom alone they could act. Whether they were acting for the benefit of the public or not, seems to be decided by that case.

As we are bound by your Lordships' decision, the opinion of the learned Judges, delivered by Mr. Justice Blackburn, must be considered as correct, and therefore ought to be affirmed.

LORD WESTBURY.-I entirely concur in the conclusion derived from the authorities and from the principles of law laid down in the very able opinion delivered to your Lordships by Mr. Justice Blackburn. I concur also in the observations of my noble and learned friend on the woolsack, and that judgment ought to be given for the defendants in error.

But I think it desirable to say a few words with reference to the difficulty felt by the learned Judges in consequence of certain observations that fell from Lord Chancellor Cottenham, and which are reported in the case of Duncan v. Findlater (1). I can well divine what was, at that time, passing in the mind of my Lord Cottenham. My Lord Cottenham seems to have thought, that if a corporation be trustees of property for the direct benefit of certain individuals, and there is no other corporate property, and if in their capacity as trustees an act is done by order of the corporation, which amounts to a tort or trespass, and gives a right of action, and a right to damages to any private individual, a Court of equity would not permit an execution to issue on any judgment that might be recovered against the property of the corporation, seeing that it is property held upon trust for certain beneficiaries, and that the corporation, as trustees, have no interest therein. But I apprehend that that was a misapprehension on the part of the noble and learned Lord, and that it would lead to very mischievous consequences. It is by no means true that a Court of equity is able to protect the property of beneficiaries against the act of trustees. If trustees alienate property for a valuable consideration, to a person who pays that consideration without notice of the trust,

the interest of the beneficiaries suffers from that act; and it would be a very unreasonable and a very mischievous thing if, in the case of a corporation dealing with the public or with individuals, such corporation should, by any conduct of theirs in respect to property committed to their care, give a right of action to individuals, that such individuals should be deprived of the ordinary right of resorting to a remedy against the body doing or authorizing those acts, and should be driven to seek a remedy against the individual corporators, whose decision or order, in the name of the corporation, may have led to the mischief complained of. It is much more reasonable in such a case, that the trust or corporate property should be amenable to the individual injured, because there is then no failure of justice, seeing that the beneficiary will always have his right of complaint, and his title to relief against the individual corporators, who have wrongfully used the name of the corporation.

The learned Judges observed, and with very great correctness, that it is not everything that falls from a noble and learned Lord in advising the House which is to be considered as the opinion of the House. Those observations of Lord Cottenham, which directly tend to this conclusion, that the corporation in the case supposed would not be amenable, nor would the corporate property be liable, but that the party injured would be obliged to have resort to the individual members who directed the act to be done, would, if they were recognized as the law, undoubtedly lead to very great evil and injury.

I confine my observations to the case of a remedy sought for a wrongful act; because your Lordships are very well aware that the rule has been well established, that if, in the case of a contract entered into with a corporation created by an act of parliament, the contract is made by the corporation ultra vires of the corporation, the party may not be entitled to recover under that contract. That may be a very convenient rule, and it is not at all affected by the considerations we are now dealing with; but with regard to the observations attributed to the noble and learned Chancellor (Lord Cottenham), I conceive that they ought not to be taken or regarded as

establishing any rule that at all interferes with the decision at which your Lordships have arrived in the case now before you.

With regard to what has been suggested by my noble and learned friend (Lord Wensleydale) that it would be a correct principle to hold officers of public departments not to be answerable for inferior servants, that may be quite correct where an officer fulfilling a public duty is directly appointed by the Crown, and is acting as the servant of the Crown; but it has no application to the case of trustees

incorporated for the purpose of public works, and standing in relation to the public in the way these trustees do in the present case. I concur, therefore, in the motion of my noble and learned friend.

Judgment affirmed, with costs, in both appeals.

Attorneys-Norris & Allen, agents for John North, Liverpool, for appellants; Uptons, Johnson & Upton, for respondents Gibbs and others; Gregory & Rowcliffes, agents for Duncan, Squarey, Blackmore, Pearson & Hill, Liverpool, for respondents Penhallow and others.