layeth or casteth anything out of his house into the street or common highway, to the damage of any individual or the common nuisance of his Majesty's liege people;" for which is cited Noy's Max. c. 44. In Sly v. Edgeley (6 Esp. 6) a bricklayer was employed by the proprietor of a house to sink a large sewer in the street in order to prevent his kitchen from being overflowed; the bricklayer having left the sewer in the street open, so that the plaintiff fell into it and broke his leg, Lord Ellenborough at Nisi Prius held the owner of the house liable on the principle of respondeat superior, and that he had his action over against the bricklayer. In Matthews v. The West London Waterworks Company (3 Camp. 403) an incorporated waterworks company employed a contractor to lay down pipes for conducting water through a public street; the workmen of the contractor having done the work in a negligent manner, whereby an individual passing along the street received an injury, the company were held liable. In Randleson v. Murray (8 Adol. & Ell. 109) a warehouseman employed a master-porter to remove a barrel from his warehouse; the master employed his own men and tackle, and the barrel having fallen through the negligence of the men, whereby an injury was caused to the plaintiff, the Court of Queen's Bench held the warehouseman liable. In Rich v. Basterfield (4 C. B. 783) also, which was an action against the owner of a house for a nuisance from smoke proceeding out of a chimney to the prejudice of the occupier of an adjoining messuage, the defendant was held liable, although not in possession at the time of the premises on which the chimney was erected; it appearing that he had erected the chimney and let the premises along with it, and thus impliedly authorised the lighting the fire. The present case is much stronger than many of the preceding; for here the act done was for the benefit of the Company, and being done on a public highway amounted to a public nuisance. But independent of the general law, contractors employed by railway companies must be considered as their servants. In Semple v. The London and Birmingham Railway Company, (1 Railw. Cas. 480), where such a company had employed a contractor, the Lord Chancellor says, "I have no doubt that the contractor must be considered as the servant or agent of the company in this case." In Machu v. The South-western Railway Company, (12 Jur. 501), a railway company were held liable for a theft committed by a servant of a carrier who had contracted with them for the delivery of all goods coming by the railway. [Rolfe, B.-In that case there was evidence that the company had recognised as their servant the person immediately in fault.] In Grote v. The Chester and Holyhead Railway Company, (2 Exch. 251), where an action was brought against a railway company for compensation for an injury sustained by a passenger in consequence of the breaking down of a bridge on their line, it was held no defence for the company that they had engaged the most competent engineers to build the bridge. [Parke, B.-What do you say to Allen v. Hayward, (7 Q. B. Rep.960)?] The work done there was work for which the commissioners had given no direction, and was not within the scope of the contractor's general authority. Besides, the commissioners were not in possession. [Parke, B.-The Duke of Newcastle v. Clark (8 Taunt. 602) shews that Commissioners of Sewers have no possession to enable them to maintain trespass.] But in the present case the contractor's workmen are really and actually the servants of the Company, for the Company have by their contract reserved a right of dismissing them if incompetent.

the power to select his servants must be considered liable for their acts, an argument which cannot apply where the party doing the injury is chosen by some one else. It is immaterial whether the act causing the injury were done in respect of fixed or moveable property, unless perhaps when it amounts to a continuing nuisance; and understood in this sense Bush v. Steinman may be supported. But even that is questionable. If the trees on land adjoining a highway are blown down actu Dei, or maliciously cut down by a stranger, so that they fall across the highway, and the owner leaves them there, he is liable for any injury which they may cause to a stranger. So a man is indictable for keeping a ruinous building near the highway, and it need not be laid that he was bound to repair it ratione tenure; and it has been held somewhere that he is equally indictable if after it has been made ruinous by the act of a stranger he suffers it to continue so. [Parke, B.-Yes; Rex v. Watson (2 Ld. Raym. 856) is the case you mean. The distinction is taken by Markham in the case from the Year Book, that the act done must be done by the owner of the house himself or his servant or one of his guests whom he permits to be in his house; if a stranger comes in and does the mischief the owner is not liable. If the guest in your house makes a fire in the chimney which produces a disagreeable smell, you are liable to nuisance by your next neighbours. But Markham takes the distinction between a house and field. It may be argued that the owner is supposed to be personally present in the house.] In Parnaby v. The Lancaster Canal Company (11 Adol. & Ell. 223) a canal company were held liable for not removing a sunken boat in a canal. [Parke B.-Supposing that they were not bound to keep the canal open, yet if they did so, they were bound to make it reasonably safe.] Bush v. Steinman if understood in a more general sense is overruled by the recent authorities, viz. the judgments of Lord Tenterden, and Littledale, J., in Laugher v. Pointer, confirmed by Quarman v. Burnett and Rapson v. Cubitt. [Platt, B.-That was after Witte v. Hague, (2 D. & R. 33).] Allen v. Hayward is expressly in point. It was an action against the Commissioners of the Dartford Navigation, sued in the name of their clerk, for making a diversion in Dartford Creek. In delivering judgment, Lord Denman, C. J., says, "We are brought to the question whether the commissioners are responsible for this ill construction; whether the contractor is to be regarded as their servant, so that they may be called the makers of this work by his agency. It seems perfectly clear that in an ordinary case the contractor to do work of this description is not to be considered as a servant, but a person carrying on an independent business, such as the commissioners were fully justified in employing to perform works which they could not execute for themselves, and who was known to all the world as performing them." In Milligan v. Wedge, (12 Adol. & Ell. 737), where a licensed drover was employed to drive a bullock from Smithfield, who employed a boy through whose careless driving an accident happened to the plaintiff, the owner of the bullock was held not liable, as the boy was not his servant. In delivering judgment, Lord Denman, C. J., says, "I think we are bound by Quarman v. Burnett. It may be another question whether I should agree in all the remarks delivered from the Bench in that case: if I felt any doubt it would be if the distinction as to the law in the cases between real and moveable property can be relied upon." Burgess v. Gray (1 C. B. 578) seems to the same effect, but the decision proceeded on the ground that the dangerous poKnowles and Hall, contra.-It is a general principle sition of the heap of rubbish which caused the inof law that the party who receives an injury must pro-jury was pointed out to the defendant. The Roman ceed against the person by whom it was occasioned. The only exception to this is in the case of master and servant, the reason for which is, that the master having

law was very stringent on the subject in question; the bare inhabitant of a house was liable for injuries like these, but then that was not by virtue of the general

ROLFE, B.-After stating the pleadings and facts in Reedie v. The North-western Railway Company, his Lordship proceeded thus:-It appears to us quite clear that after the passing of the second act the contract with Messrs. Crawshaw was transferred to the present defendants, so as to make them liable to the same extent precisely as the original Leeds, Dewsbury, and Manchester Company would have been liable if the second act had not passed. But after full consideration of the subject we are of opinion that neither the defendants nor the original Company were liable.

law, but of the "jus prætorium." "Prætor ait," (says therefore not bound to remove them. Parnaby v. The the Dig., 1. 1, "De his qui effud. vel ejec."), "de his Lancaster Canal Company and the case put of way-leave qui ejecerint vel effuderint: Unde in eum locum quo differ in this, that here the act done was for the direct vulgo iter fiet, vel in quo consistitur, dejectum vel advantage of the Company; and The Duke of Newcastle effusum quid erit, quantum ex ea re dammum datum, v. Clark was the case of a mere license to build a bridge. factumve erit, in eum qui ibi habitaverit, in duplum Knowles and Hall, contra.-The work out of which judicium dabo*"" Suppose an owner of land had an injury arises being done for the benefit of a parti granted to this Company the right to make a via-cular party is not a true test of liability, for here it is duct over it, they would have only an easement in sought to charge the defendants as owners of the prothe land, and could not be held liable for stones perty; and it may be that an act done to property may falling from the viaduct. [Parke, B.-In Rams- not be for the benefit of its owner. As to Matthews v. den v. The Manchester Railway Company (1 Exch. The West London Waterworks Company, a waterworks 723) it was held that these companies are bound under company is in possession of the land, and is liable to the Lands Clauses Consolidation Act (8 & 9 Vict. c. 18) poor's-rate. Cur. ade. vult. to make compensation to the owner of the land before The judgment of the Court in both cases was now entering upon it. Platt, B.-Suppose a clumsy la- delivered by bourer taking up bricks on a hod lets them fall on a man's head, is the occupier of the house liable?] It would be most unjust if he were. This Company had not possession of this railway in the sense in which an owner has possession of his house, who may interfere if he sees his servant doing an act injurious to the public; according to the maxim, "Qui non prohibet quod prohibere potest, assentire videtur." As to the argument ab inconvenienti, the inconvenience would be the other way, for if the party injured sues the owner he will sue his contractor, and he the sub-contractor, and so give rise to circuity of action, which the law abhors; whereas if the party injured is obliged to take the proper pains to find out the responsible person, one action will be sufficient to settle the whole question. In the case already cited from the Year Book, Hornby says, "This defendant is undone and impoverished for ever if this action is maintainable against him, for then twenty other such suits will be taken against him for the like matter;" to which Thirning, J., says, "What is that to us? It is better" he should be quite undone than that the law should be changed for him." As to the cases which have been cited, in Grote v. The Chester Railway Company the work of the contractor was done, the company had the railway in their own possession and management, and were bound to keep it in repair, and not having done so were liable. In Randleson v. Murray there is nothing to shew that the act may not have been done while the defendant was present. [Parke, B.-That case, so far as the reasons given for the judgment, is overruled by Quarman v. Burnett.] Reliance has been placed on the clause in the deed by which the Company have a right to interfere to remove incompetent workmen; but they have no control over the men beyond seeing that the work is done properly.

Cur. adv. vult. HOBBIT V. THE NORTH-WESTERN RAILWAY COMPANY. This was a similar case to the last, and argued immediately after it.

In the case of Quarman v. Burnett (6 Mee. & W. 499) this Court decided, (adopting the opinion of Lord Tenterden and Mr. Justice Littledale in Laugher v. Pointer, (5 B. & C. 457)), that the liability to make compensation for an injury arising from the neglect of a person driving a carriage, attaches only on the driver, or on the person employing him.

The liability of any one other than the party actu ally guilty of any wrongful act, proceeds on the maxim, Qui facit per alium facit per se.' The party employing has the selection of the party employed, and it is reasonable that he who has made choice of an unskilful or careless person to execute his orders, should be responsible for any injury resulting from the want of skill or want of care of the person employed; but neither the principle of the rule, nor the rule itself, can apply to a case where the party sought to be charged does not stand in the character of employer to the party, by whose negligent act the injury has been occasioned. The doctrine of Quarman v. Burnett has since been acted on in this court in the case of Rapson v. Cubitt, (9 Mee. & W.710), and in the Court of Queen's Bench in Milligan v. Wedge, (12 Adol. & Ell. 737), and again in Allen v. Hayward, (7 Q. B. 960).

By these authorities we must consider the law to have been settled, and the only question is whether the law so settled is applicable to the facts of this case.

To shew it was not, it was argued by the counsel for the plaintiff, that there is a recognised distinction on this subject, between injuries arising from the careless Martin and H. Hill shewed cause.-This case turn- and unskilful management of an animal, or other pering on the same point as Reedie v. The North-western sonal chattel, and an injury resulting from the negligent Railway Company, it will be sufficient for us to reply to management of fixed real property-in the latter case it the arguments used there. The argument about circuity was contended that the owner is responsible for all inju of action proves too much; as the holding a third per-ries to passers-by or others, however they may have been son responsible under any circumstances causes a circuity of action. There is no distinction between the possession of this viaduct and the possession of a house; if stranger were to knock it down the Company might maintain trespass: (Harrison v. Parker, 6 East, 154). Besides, in Matthews v. The West London Waterworks Company (3 Camp. 403) there was no actual possession, and yet the company were held liable. As to the case which has been put of trees blown down across a highway, they become the property of the landlord so soon as they are separated from the soil; and the occupier is

* See Heinecc. ad Pand., par. 2, tit. 3, § 195 et seq.

occasioned, and here it was said that the defendants were at the time of the accident the owners of the railway and so are the parties responsible.

This distinction as to fixed real property, is adverted to by Mr. Justice Littledale in his very able judgment in Laugher v. Pointer, (p. 560), and it is also noticed in the judgment of this Court in Quarman v. Burnett. But in neither of those cases was it necessary to decide whether such a distinction did or did not exist. The case of Bush v. Steinman, (1 B. & P. 404), where the owner of a house was held liable for the act of a servant of a sub-contractor, acting under a builder employed by the owner, was a case of fixed real property. That

In the Goods of B. MANUEL.-May 26. By the Law of Turkey d Son Nineteen Years of Age is entitled to administer the Estate of his Father, dead intestate. Administration refused to the Son, on the Ground that he could not give the usual Bond, by Reason of his Minority, according to the Law of this Country.

Basilio Manuel, a native of Turkey, and a subject of that empire, died at Manchester, on the 26th January, in the present year, intestate, leaving surviving him Efrosine Manuel, widow, his lawful relict, resident at Constantinople, and Alexander Manuel, his natural and lawful son, residing in this country, and of the age of nineteen years and upwards, but under the age of twenty-one years. It appeared that by the laws of Turkey the relict of a deceased intestate is not entitled to participate in his personal estate, the whole of which is divisible only amongst his children; and by those laws, a son who has attained the age of nineteen years is entitled to administer the estate of his father; and, if administration of this deceased were granted to Alexander Manuel, the acts of the latter, in such his capacity of administrator in this country, would be valid and binding in Turkey.

Addams, on proof of these facts, inoved the Court to decree the administration to Alexander Manuel *. Sir H. JENNER FUST.-The son, being a minor, cannot give the usual bond; and, notwithstanding what is stated to be the law of Turkey, I must reject this

motion.

In the Goods of WILLIAM BAYARD.-June 22.

Will annexed, of the unadministered Effects of W. B., was refused, on Motion, to One of the residuary Le gatees, the Chain of Representation not being broken. W. Bayard appointed executors of his will and thirtyone codicils, his wife, his four sons, S. B., S. V. B., W. B., and R. B., his brother R. B., and R, R., and named his nine children residuary legatees; but in respect to the share of his daughter, A. Johnston, he directed the interest to be paid to her for life, and the principal to her children after her decease. Two of the sons, S. B. and R. B., died in the lifetime of the deceased. In 1805, probate of the will and codicils was granted to the brother, R. B., and R. R., two of the surviving executors, power being reserved to the other surviving executors. The widow and W.B. afterwards died without proving, and R. B. and R. R. died, leaving part of the estate unadministered. In 1829, letters of administration, with the will and codicils annexed, of the unadministered goods and effects of the deceased, were granted to R. J. and W. A. P., as the attornies of S. V. B., the surviving executor.S. V. B. died in 1832, upon which the grant to his attornies ceased. He left a will, of which he appointed three executors, who proved the same in Nova Scotia, but not in this court. All the residuary lega tees were dead, and a legal representative of the deceased was required for the purpose of receiving payment of a certain amount of stock and dividends.

and consequently his executors cannot prove the will of the first testator. (Wankford v. Wankford, 1 Salk. 308). That case shews the principle upon which the Court must act. As to the practice, this case occurred in 1824; administration of the effects of Mary Hind, left unadministered by J, F., deceased, whilst living, one of the executors named in her will, and by E. H., the other and surviving executor, who proved the will by J.C.C., her lawful attorney, and is since dead, was granted to M. H., one of the residuary legatees. E. H., however, died intestate. This grant passed in common form*. [He also referred to The Goods of Bullock, (1 Rob. 275).]

Jenner moved the Court to decree letters of adminis tration, with the will &e, to H. S. Johnston, one of the children of the said A. Johnston, deceased, (whilst living, a residuary legatee for life named in the said will), and, as such, one of the residuary legatees substituted Probate of the Will of W. B. was taken by the Attorney of in the will. The grant of administration to the attor S.V.B., the surviving Executor. S. V. B. died Abroad, nies of S. V. B. broke the chain of representation. He leaving a Will, which was proved Abroad by the Exe-himself never proved the will, but died before probate, cutors, but not in England. Administration, with the * In The Goods of the Countess da Cunha (1 Hagg. 237) a difficulty of a somewhat similar nature must have occurred. The circumstances of that case were these:-The sum of 14,9117. 168. Three per Cents. was entered in the books of the Governor and Company of the Bank of England in the name of her Excellency Donna Maria Gertrudes Quintella, of Lisbon, spinster, afterwards the wife of his Excellency Don Jose Maria Vasques da Cunha, Count da Cunha. This lady dying, by her will, dated the 8th September, 1824, appointed her daugh ter, Donna Maria da Carmo, (a minor), residuary legatee. The will was established in Portugal, and a judge administrator assigned, who, in that character, had the entire management and control of the minor's property. On the marriage of the minor to the Count of Vianna, under the license of the Princess Regent of Portugal, her disabilities as a minor ceased, and the appointment of the judge administrator was revoked. The husband was also a minor ; but it appeared that by the laws of Portugal, by reason of his holding a commission in the army, and of his marriage, he was considered of full age, and was legally authorised to do all acts, the same as if he had attained the age of twenty-one; on which account a guardian could not be appointed.

Sir H. JENNER FUST.-I understand from the Regis trar that the chain of representation is not broken by a grant of administration to the attorney of an executor, the grant to the attorney being considered the same as a grant to his principal. I shall, therefore, reject the motion; and I will not dispose of the interest while the executors are out of the jurisdiction, and unrepresented here,

*The two following cases appear in the Registrar's book:In December, 1830, the will of H. Fox was registered, and Lushington moved for an administration, with the will of in November, 1833, a a special administration de bonis was the Countess da Cunha annexed, to be granted to her daugh- granted, which recited that H. Fox appointed O. K., A.F.. ter, limited to the receipt of the dividends, on the ground, and A. O.; his executors that A. F. died in his lifetime, and that, the Countess of Vianna being the residuary legatee under A. O. renounced, and O. K. proved the will by his attorney: the will of her mother, the Countess da Cunha, she was entitled to the administration. The courts of justice, in Por-ministered, and having made a will, of which he appointed that O. K. survived A. O., and died, leaving goods unad. tugal had put an end to their own authority to administer. J. H. H. executor; J. H. H. proved his testator's will by attorney that a representative of H. Fox becoming neces sary, the grant was made to the attorney of J. H. H., for the he should apply for, and legally obtain, probate of the will of use of the said J. H. H., then residing at Demerara, and until the said O. K., deceased.

That two difficulties arose: the Countess of Vianna was a minor and a married woman, and her husband was also a minor; and by our law and practice a minor could not take the administration, nor appoint an attorney to take it for her -she must appoint a guardian: but as this, it appears, cannot be done by the laws of Portugal, the case resolved itself into this question, whether the Court would enforce the practice as it existed in England, or adopt the Portuguese law.

THE COURT, observing that from the documents it appeared

that the Countess da Vianna was entitled to the dividends, and as no possible inconvenience could arise from this limited grant, allowed it to pass.

And in June, 1833, administration, with the will annexed de bonis of J. Mills, left unadministered by S. Mills, deceased, will, acting by her attorney, was granted to R. J. Mills, the whilst living, the relict and sole executrix named in the said

son and sole executor of the will of the said S. Mills.