D. C. 1908 V. The whole subject is reviewed in the last edition of Beven on Negligence, 3rd ed., vol. 1, pp. 326-329. The same principles NETTLETON appear to be substantially involved in Tozeland v. Guardians of West Ham Union, [1907] 1 K.B. 920, a case later than Beven. For statement of American point of view see Cooley on Torts, 3rd ed., pp. 1012-1014; and Smith on Modern Law of Municipal Corporations, vol. 1, sec. 799. CORPORA TION OF PRESCOTT. Boyd, C. I come now to direct decisions upon the very matter of this present controversy to be found in the American reports, a few of which it will suffice to refer to. First may be noted the view taken in the exceptional state of North Carolina, where a possible liability exists, if such proof of notice of deficiencies is given as obtains in case of want of repair in highways. Thus, in one of the latest reports, Coley v. City of Statesville (1897), 121 N.C. 301, if a municipality has provided for prisoners arrested for violation of its ordinances a prison house reasonably comfortable, and has supplied to those in charge of it all things reasonably essential to prevent bodily suffering and disease, it is not liable for injuries resulting to a prisoner from the negligence of the keeper, unless the municipal authorities had, after notice of such negligence, failed to remedy or prevent the same. In commenting on the North Carolina cases, it is said by the Court in Shaw v. City of Charleston (1905), 57 W.Va. 433, that it is the only State in the Union where the doctrine of municipal liability for injuries resulting from imprisonment in unsanitary places has been adopted, and even there the liability is restricted so that upon the city is imposed only the duty of properly constructing and maintaining the prison and exercising ordinary care in providing necessaries. But it is not liable for injuries resulting from the negligence of policemen or the keeper in failing to make use of the appliances furnished, unless the municipal authorities have had notice of such negligence, and have failed to remedy the evil. It was held, again, in this West Virginia case, broadly, that the municipality was not liable for injuries occasioned to a person by the unsanitary condition of its prison while he was confined therein for violation of a city ordinance; and, further, that the maintenance of a prison is the exercise of a purely governmental power and negligence or omission of duty on the part of its officer or agents respecting persons confined therein is not actionable against the municipality. The judgment refutes the distinction made in Edwards v. Town of Pocahontas, 47 Fed. 268, as between voluntary and compulsory exercise of its powers in regard to the establishment of places of detention, and holds that a difference in the method by which the corporation obtains the legislative powers vested in it cannot change the character of its power, and impose liability for its negligent exercise when the legislature has not expressly provided for such liability. A prison or lock-up, however it comes into being, is an instrumentality or agency required for the exercise of the purely governmental function of enforcing the criminal law, and it has no relation to its corporate or municipal property. Maine: In Mains v. Inhabitants of Fort Fairfield (1904), 99 Me. 177, the general propositions are maintained that towns are incorporated for two distinct purposes-one for the particular welfare of their own inhabitants; the other for the general welfare. In pursuing the one, they may be liable in contract or in tort at common law for the acts or omissions of officers appointed by them. In pursuing the other purpose, they are not so liable. And it is held, in particular, that, in maintaining a police "lockup," a town is pursuing not a municipal, but a public purpose, being the maintenance of the justice and the peace of the State, and hence, in the absence of any statute imposing liability, the town is not liable for the neglect of its officers (selectmen) in the care of it. A constable, in committing a prisoner to the town lockup as a place of detention, acts for the State, and under its authority (if any). He does not act for the town, nor under its authority, though he may have received his appointment from the town. He is a public officer as much as a sheriff. The constable was under no compulsion and had no direction from the town to confine the plaintiff there. He acted upon his judgment in the exercise of a duty imposed upon him not by the town, but by the State, viz., the safe-keeping of the plaintiff: Ib., p. 180. Ohio: Rose v. Toledo (1903), 24 Cir. Ct. 540, held that a city, in constructing and maintaining a workhouse (which is also a place of detention for violators of law), acts not in its corporate, but in its governmental capacity, and hence is not liable to a prisoner in such place for injuries received through the wrongful acts of D. C. 1908 NETTLETON V. CORPORA TION OF PRESCOTT. Boyd, C. D. C. 1908 the superintendent thereof. It is, further, held that police officers appointed by a city are not its agents and servants, so as to render NETTLETON it responsible for their negligent acts in the discharge of their v. CORPORA TION OF PRESCO IT. Boyd, C. duties. A well-considered judgment of a Court of acknowledged excellence is that of Tindley v. Salem (1884), 137 Mass. 171. The cases are classified in which it has been sought to hold municipalities responsible for injuries to person or property sustained through negligence on the part of persons alleged to be acting as agents or servants of the municipality. Allen, C.J., distinguishes easily cases where the city is exonerated on the ground that the act complained of is not its act, but the act of those who are deemed to be public officers existing under independent provisions of law; officers who, though appointed and paid by the city or town, and though, perhaps, its servants or agents for other purposes, are yet held not to sustain this relation in respect to the particular act in question-as, for example police officers: Buttrick v. City of Lowell, 1 All. (83 Mass.) 172, at p. 174. Then he deals with the element in this case which is relied on as causing responsibility, because the town had its option to establish or not to establish the lock-up. I quote his language: "There are many provisions of statute by which all municipal corporations must do certain things and may do certain other things, in each instance with a view solely to the general good. In looking at these provisions in detail, it is impossible to suppose that the legislature have intended to make this distinction a material one in determining the question of corporate liability to private actions. The motive and the object are the same, though in some instances the legislature determines finally the necessity or expediency, and in others it leaves the necessity or expediency to be determined by the towns themselves. But, when determined, and when the service has been entered upon, there is no good reason why a liability to a private action should be imposed when a town voluntarily enters upon such a beneficial work, and withheld when it performs the service under the requirement of an imperative law. To make such a distinction would not have the effect to encourage towns in making liberal provision for the public good": pp. 175, 176, 177. This same doctrine as to the voluntary nature of the service not making any difference as to whether those discharging its duties were or were not public officers was confirmed in McManus v. Inhabitants of Weston (1895), 164 Mass. 263, at p. 270. I venture to think that reasons of public policy are against allowing actions of this kind to prevail against prison authorities, of whatever grade the place of incarceration may be. As put by the Chief Justice, in an Australian case (to which Mr. Clarke has referred us): "Every detention might be followed by an action; one prisoner complaining of the quality or quantity of his food, another of his cell being damp or cold, another that his bedding was insufficient, another that he had unduly to undergo punishment within the gaol for alleged misconduct. These cases would have to be determined by juriesthus, in effect, taking the management of our gaols out of the hands of skilled officials, . . . and replacing them by the uncertain, unstable and unskilled management of the jury box:" Gibson v. Young (1900), 21 N.S.W.L.R. 7, at p. 12. Another case from the same colony is valuable, as it refers to the position of "lock-ups," which are there built and maintained by the government. As to these, the government occupies relatively the same place as does the municipality in our system. The decision was that lock-ups are not under the control or supervision of the government, but of the police, who confine the inmates, not as agents of the government, but in the exercise of their statutory power and duties: Davidson v. Walker (1901), 1 N.S.W. 196. In a case therein cited, Stephen, J., says: "The acts of a police constable are not in any sense performed on behalf of the government, but are done by reason of the allegiance he owes to the Crown." As expressed by Lord Mansfield, "the office of constable is clearly a civil office of trust:" Rex v. de Mierre (1771), 5 Burr. 2788, at p. 2790. Such being his position, he is required to take the oath of allegiance for civil office prescribed by R.S.O. 1897, ch. 16, sec. 3. Other remedies exist for substantial grievances in the conduct of all places of compulsory custody. The management of all gaols and lock-ups is conducted on humane principles, and any well-founded grievances arising from the negligence of those in charge would be redressed by the governing bodies or punished by fine or by the suspension or dismissal of the blameworthy official. This matter was touched upon by Harrison, C.J., in D. C. 1908 NETTLETON บ. CORPORA TION OF PRESCOTT. Boyd, C. D. C. 1908 v. CORPORATION OF PRESCOTT. Boyd, C. Crawford v. Beattie, 39 U.C.R. 13, at p. 31, who advised a system of government inspection, which has been carried out NETTLETON generally in this country. Though the occasion invited, he was far from expressing any opinion that the municipal body would be justiciable, even if clearly to blame for the improper condition of the prison. It is laid down in Hawkins' Pleas of the Crown, vol. 2, p. 213 (sec. 32), that the Court of King's Bench, which has general supervision over all persons who are in any respect ministers of justice, may punish by fine or award an attachment against any gaoler using a prisoner barbarously or inhumanly. But whatever be the appropriate remedy for systematic or occasional neglect by the custodian of prisoners, a right to proceed by action has never been sanctioned, and the present attempt is altogether an experiment. If the plaintiff is rightly in court, I would not think that a new trial was proper, in view of the apparently discordant responses of the jury. The answer to the last question (6a) may be rejected as insensible or at unreasonable variance with the other answers, as was done in Crown Bank of Canada v. Brash (1907), 8 O.W.R. 400, 9 O.W.R. 789; or it may be read and reconciled as pointing to the time during the imprisonment when more heat was asked for on the Sunday, and Lee bestirred himself to light a fire in the stove, and to turn on a supply of hot water in the lower coil of pipes in the lock-up. By either method the apparent difficulty would be obviated, and the course cleared to enter up judgment for the plaintiff for the $250. But, taking the view I do of the entire failure of the groundwork of this claim as against the municipality, I would dismiss the action. Being a new case, it may be without costs, alike as to action and appeal. MAGEE, J., concurred. MABEE, J.:-3 Edw.VII. ch. 19, sec. 520 (O.), provides that every town may, by by-law, "establish, maintain and regulate lock-up houses." Section 518 empowers county councils to "establish and maintain" lock-up houses, but, under sec. 519, these places of detention, when established by counties, are placed in charge of a constable specially appointed by the magistrates at a general |