In the recent and interesting English case of Macclesfield Corporation v. Great Central Railway Company,1 it was held that the district highway authorities could not recover expenses incurred in repairing a bridge roadway which the defendant, in violation of its statutory duty, refused to repair. Said Kennedy, L.J.:
"If it could have been shewn that the plaintiffs were legally compellable to do the work, I should say that, having been compelled to do something which the railway company ought to have done, the plaintiffs might recover; but the authorities, as Farwell, L.J., has pointed out, are clear to shew that it would be a sufficient defence in a case of this kind, were proceedings taken against the local authority for non-repair of the roadway passing over the bridge, to shew that Parliament by this private Act in a section which, so far as regards the portion with which we are concerned, has to be construed for the public benefit, not for the benefit merely of an individual or a set of private individuals, has ordered that the repair is to be done by the company. In such a case it could have been pleaded as a defence to proceedings against the local authority that the burden had been thrown upon another body, and therefore the common law liability had been, as it were, extinguished by the will of Parliament. Not being under a statutory obligation to pay for or to do the work, this local authority has done the work and incurred expense in doing it, and I do not know the legal principle upon which in those circumstances they can throw the burden upon some one else who ought in the first instance to have done the work, and who therefore is in a position to say, 'You who seek to recover this payment from me have acted as volunteers.'"
This decision, it is respectfully submitted, is erroneous. All of the elements of quasi contractual obligation were present (see ante, Sec. 193). The defendant's duty was one the prompt performance of which was a matter of public concern; the plaintiffs were eminently the proper persons to intervene; the defendants had been requested to perform their duty and had refused so to do. The fact that the plaintiffs acted voluntarily, in the sense that there was neither mistake nor compulsion, did not justify the denial of relief, as all of the cases in which dutiful intervention has been held to raise an obligation testify.
1  2 K. B. 528, 540; 104 L. T. R. 728, 736.