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Decisions of the Superior Courts of New South Wales, 1788-1899

Atkinson v. Cox [1847] NSWSupC 2

local government, liability of individuals

Supreme Court of New South Wales

8 July 1847

Source: Sydney Morning Herald, 14 July 1847, in Supreme Court Collection, Vol. 1, p. 130

Before the full Court.


This action was tried on the 13th of August in the last year, before His Honor Mr. Justice DICKINSON and a Jury of four, when a verdict was found for the defendants.

The defendants are members of the Town Council of Windsor, and passed certain resolutions touching the repairs of the hospital in that town, and also the furnishing chairs and other articles for the same. These repairs were effected by the plaintiff, as it was alleged upon the personal credit of the defendants; they however refused to pay the amount, and consequently this action was brought.

Mr. BROADHURST now moved for a new trial on the ground of misdirection. The defendants are, it was contended, not the corporation, but merely the managing part of it: The Queen v. Pallamore, 10 A. and E., 286; the Queen v. York, 2 Queen's Bench, 847; Braithwaite v. Scofield, 8 B. and C., 401:-- All the defendants signed the resolution and credit was given to them personally, and are so liable; Eaton v. Bell, 5 B. and A., and Horsley v. Bell, 1 Brown's Chy. Cases, 707. The defendants are not agents, but principals, and are so liable; Thomas v. Edwards, 2 M. and W., 217.

Messrs. WINDEYER and DARVALL now appeared in support of the verdict, and urged that the cases cited on the other side, and likened unto the present, were not at all in point; they were cases where committee men of certain private undertakings were held personally liable;--but the Council in the present case are a public body, and appointed by a public Act of Council; and the charter points out the duty of the Council, and the way all funds necessary should be raised. The plaintiff is presumed to have known the Act, and therefore cannot now say that he credited the defendants personally; his remedy was against the whole corporation. The repairs, &c., were such ordinary things, that it was not necessary that they should have been ordered under the seal of the Council. The Mayor of Ludlow v. Charlton, 6 M. & W. 820; Arnold v. The Mayor of Poole, 2 D. N. S. 590.

Mr. BROADHURST replied and referred to Downman v. Jones, Jurist, 1845.

The Court reserved its judgment.

Supreme Court of New South Wales

13 July 1847

Source: Sydney Morning Herald, 15 July 1847, in Supreme Court Collection, Vol. 1, pp 130-131

Before the full Court.


The CHIEF JUSTICE delivered the judgment of the Court this morning, in this case, to the following effect:-- We have considered this case, and the authorities cited by the plaintiff's counsel; and we are of opinion that the verdict must stand. The direction to the Jury was, that if the plaintiff gave credit, not to the defendants individually, but to the Corporation, he could not recover. The plaintiff submitted that that direction was wrong, for that the defendants contracted as Councillors (that is in effect, personally) and not as representing, or on behalf of, the Corporation. They (as it was argued) being Councillors, ordered the goods; and were trusted for them. The responsibility for any body, or persons, beyond themselves, was never thought of. The Corporation it was contended, could not be bound by the defendant's contract, even though the Council professed to bind it. But even if bound, the Councillors individually were not the less bound; as they were the parties who personally contracted.

Of the cases cited, those chiefly relied on, Horsley v. Bell, 2 Am bl. 770, and Enton v. Bell, 5 B. and A. 34. - In both these cases the defendants were commissioners under a statute. They were therefore not agents, but principals. And the funds necessary might have been raised by them. In the former case also, and in Cullen v. Ld. Queensberry, 1 B.C.C. 101, being cases occurring in Chancery, the Court exercised the office of a Jury, and determined upon the facts, that the credit was given to the parties to the contract, and not to the fund. But here the District Council were agents, namely of the corporation of which they were the directing and representative body. In Mynel v. Hymondsold, Hard. 205, the contract was clearly with the defendants; they did not profess to be agents for the parish, but contracted personally on behalf of the parish.

Speaking for myself, I should have been more satisfied, had the Jury been desired to consider whether credit was given to the defendants, or to the corporation fund, or that it had been explained, that the defendants were liable, if credit were given to the Council, irrespective of that fund. But on the whole, I agree in opinion with my brethren, that the question was in effect rightly put to the Jury. They were in substance told to consider whether credit was given to the defendants, or to the Corporation, of which they were ostensibly, and in fact, the agents and representatives. The Jury finding for the defendants, must be taken to have found that the credit was given to the Corporation, and not to the Councillors, individually; and I am not prepared to say that they were wrong; while the other members of the Court are clearly of the opinion that that conclusion was right. The Corporation may not be liable, and the Council may not in terms have professed to bind the Corporation; but the Jury having said in effect that the plaintiff meant to take his chance of being paid by that body, and did not look to the defendants personally, he has against them no remedy.

Motion discharged.

Published by the Division of Law, Macquarie University