McKinnon and another v Penson
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 1853 |
| Date | 25 January 1853 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 1369
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 22 L J M C 57 affirmed, 9 Ex 609
[319] m'kinnon and another v pknson Jan 25, 1853 -An action fot a personal and peculiar damage resulting fiom the want of pioper repair to a county bridge will not lie against the county suiveyor, either at common law or under the statute 43 Geo 3, c 59 [S C 22 L J M C 57 afhimed, 9 Ex 609] Case The declaration, after stating that the defendant was sutreyor of county bridges foi the county of Cardigan, duly appointed accoiding to the statute, recited that, at the time &c , thete was a certarn common public budge in the county of Cardigan, in the Queen's common highway, that this bridge was not within any city or town corporate, and that it could not be known and ptoved that any handled, tiding, city, borough, ot parish, or any peison certain, ot any body politic, ought of tight to make, rebuild, repair, or amend the said bridge, and that the inhabitants of the whole county of Cardigan ought to make, rebuild, repair, and amend the said bridge when and as often as it should be necessary, according to the statute, and that aftei the passing of the 4J G-eo J, c 59, the bridge became very tuiuous, broken, dangerous, and in great decay, for want of upholding, maintaining, amending, and repairing, so that the Queen's subjects could not pass the same without gteat dangei &c The declaration then proceeded to avei, that the inhabitants of the county of Caidigan, aftei the passing of the said statute, and up to the time of the injuiy thereinafter mentioned, wrongfully, unlawfully, and negligently permitted the said budge to remain so tuitions and in decay as aforesaid for want of upholding and repauing, although a leasonable tune for the said inhabitants to have upheld and repaired it had elapsed before the said injury, that by means of the pierruaes arid after the passing of the said statute, one J M'Eachan, a set vant of the plaintiffs, who was lawfully (hiving in a carriage along the said highway ovei the said bridge, was piecipitated with the carnage from the budge into the water, whetcby he was much injured, and that the plaintiffs weie depiived of his V P.ENSUN services, and also lost [320] certain goods which were in the carnage at the time of thd accident The defendant pleaded, first, not guilty , secondly, that a reasonable time for the said inhabitants to have repaned the said budge had not elapsed before the said injury occurred Upon which pleas issues were joined At the trial, before Martin, B, at the Carmarthenshire Spring Assizes, 1852, the plaintiffs obtained a verdict with 1001 damages In the following Eastei Term, a rule nisi was obtained to arrest the judgment 'Benson, Honyman, and Bowen shewed cause in last Trinity Teim (May 28) The objection to this action is founded on the case of liu^ell v The Men of Deion ('2 T li 667), which decided that no action will he by an individual against the inhabitants of a county for an injury sustained in consequence of the non-iepaii of a county bridge The mam grounds of that decision were, that the inhabitants of a county are not a corporation, and that the damages, if recoverable, must be levied on one 01 two individuals, who would have no means of reimbursing thernseves except bv actions against other inhabitants, and this would give rise to a multiplicity of suits That inconvenience is obviated by the 4,j Geo 3, c 59, s 4, which enacts "That the inhabitants of counties shall and may sue for any damages done to budges and other works maintained and repaired at the expense of such counties respectively, and for the recovering of any property belonging to such counties, in the name of their surveyor, and also shall and may be sued in the name of such surveyor, and no action or prosecution to be brought 01 commenced by or against the inhabitants of 001111116-1, by viitue of this Act, in the name of the said surveyor, shall abate or be [321] discontinued by the death or removal of such surveyor, or by the act of the surveyor, without the consent of the justices at then General Quarter Sessions assembled , but the surveyor lor the time being shall be deemed the plaintiff or defendant in such actions, as the case may be Provided always, that every such surveyor, in whose narr.e any action or suit shall be commenced, piosecuted, or defended in pursuance of this Act, shatl always be reimbursed and paid, out of the monies in the hands of the treasurer of the public stock of such county respectively, all such costs and charges as he shall be put urita or become chargeable with by teason of his being so made plaintiff or defendant...
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...Regis v Henley (1834) 8 Bligh NS 690 [ 5 ER 1097]. 460 Russell v The Men of Devon (1788) 2 TR 667 [ 100 ER 359]. 461 M'Kinnon v Penson (1853) 8 Ex 319 [ 155 ER 1369]; affirmed (1854) 9 Ex 609 [ 156 ER 260]; Young v Davis (1862) 7 H & N 760 [ 158 ER 675]; affirmed (1863) 2 H & C 197 [ 159 ......
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