"It is not necessary for the decision of this case that the Lord Ordinary should give any opinion as to the validity of the objections stated by the petitioners against the entail. It is said that these objections were not raised and considered or decided in the declarator at the instance of Sir William. Even supposing this to be the case, and that the entail could be again challenged, both on these objections and on those raised and disposed of in the above-mentioned action of declarator, the issue of that challenge is uncertain. Further, these objections are not of such a nature as could warrant the Court in now interfering with the rights of the respondent as heir-apparent under the entail, the standing investiture under which Sir William possessed the estates from 1839 down to the date of his death on 28th April 1871. As Mr Erskine remarks (Inst., iii, 8, 58), an heirapparent is entitled by his apparency to continue his ancestor's possession,' and this right of possession continues with the apparent heir though the ancestor should have made over the lands to a third party; because that grant, if it be not completed by seisin, imports only a personal obligation on the heir to divest himself, which is quite consistent with his possessing the subject till he be compelled to make up his titles and convey to the disponee; Fount., June 24, 1698; Home (Dict., p. 5235), July 18, 1727; Ogilvie (Dict., p. 5242).' The respondent's rights as heir-apparent are particularly strong in the present case in respect of the decision in the foresaid action of declarator and of the peculiar nature of the agreement of sale, and in respect that he avers that it was executed by Sir William on deathbed, he being at the date of its execution ill of the disease of which he died within a month thereafter, and that it is not a bona fide onerous agreement for the purchase and sale of the estates, but that it was entered into in pursuance of another attempt by Sir William to get rid of the fetters of the entail, for the purpose of transferring the estates to the other petitioner, Mr Nichols Steuart, on Sir William's death. It is also alleged by the respondent that the price stated in the agreement is £150,000 less than the true value of the estates, and that an understanding and arrangement existed between Sir William and Mr Padwick that the latter should, in the event of obtaining possession of the estates under the agreement of sale, convey them to the petitioner, Mr Nichols Steuart. This arrangement, it is stated, the pursuers are now endeavouring to carry into effect.

"See Mackay v. Dalrymple, 9th March 1796, Dict. 5239; Munro v. Graham, 28th June 1849, 11 D. 1202; Borthwick v. Glassford, 28th February 1861, 23 D. 632; Campbell v. Campbell, 27th June 1863, 1 Macph. 991; and Catton v. Mackenzie, 16th March 1870, 8 Macph. 713."

The petitioners reclaimed.

The SOLICITOR-GENERAL and LEE, for them, argued, The present competition is between an heir of entail and a purchaser from the deceased heir of entail. This makes the case essentially different from those in which the competition was between an heir of entail and a gratuitous disponee. There is no presumption that the objections to the entail are not well founded. allow Sir Archibald Douglas to take possession of the estates would be to presume that the entail is a valid entail, for unless the entail is valid he is not entitled to an hour's possession. All that Lord Cowan decided was the effect of certain

To

clauses in the deed of entail. That decision, though it might bind Sir W. Steuart and his representatives, cannot affect an onerous purchaser. Moreover it does not touch the other objections which are now stated to the validity of the entail.

SHAND and BALFOUR, for the respondentThe estate has been possessed by the heirs of entail for upwards of a century under the entail as a strict entail. This circumstance is alone sufficient. The argument of the petitioners comes to this, that whenever a party can say that he has purchased an entailed estate from a deceased heir of entail a judicial factor is to be appointed. Again, the deceased recognised the entail by mak ing up titles under it; and the matter does not stop here he made at least one unsuccessful attempt to treat the estate as if it were not well fettered. Everything then is to be presumed in favour of the validity of the entail. The present case is really not a question with a purchaser. We aver that Mr Padwick is under agreement to transfer the estates to the executor, Mr Nichols Steuart. The deed of agreement itself contains a provision that the rents of the estate between Sir W. Steuart's death and the time that the price becomes payable-which may be a period of several years-are to be paid to the executor. So that the case, as far as regards the present application, is really between an heir of entail and a gratuitous disponee.

At advising

LORD PRESIDENT-This case belongs to a class of pretty frequent occurrence. In some respects the circumstances are very special. I am not aware of an application for a judicial factor presented by a purchaser from a deceased heir of entail, upon a conveyance, the petitioner being either infeft or in a position to take infeftment. When that case occurs, it will require careful consideration. In the present case the petitioner is a purchaser under very peculiar circumstances. He has not got a conveyance. The only way in which he can make up a title is by adjudication. The right stands on a bare personal contract of sale, and that contract seems to be subject to a suspensive condition of a very peculiar nature. The price is not payable till after a final judgment on the validity of the sale. His title as purchaser necessarily remains in abeyance till that condition is purified. He is not therefore even in the position of a party holding a conveyance from an heir of entail. There is another great peculiarity in the deed of agreement. It is provided that the free rents of the estate accruing between the death of Sir William Steuart and the time that the price becomes payable in consequence of a final judgment on the validity of the sale are to be paid over by the said Henry Padwick to the executors of Sir William Steuart. If the agreement receives effect the rents will be uplifted by the petitioner Padwick, and paid over to the executors. Now I do not see that this kind of arrangement can in any point of view be given effect to. Plainly the petitioner does not feel that he is in a position to act upon this part of the agreement, and accordingly he does not attempt to uplift the rents himself, but asks the Court to appoint a judicial factor. I cannot say that this case depends on any other principles than those which have been given effect to in a competition between an heir of entail and a general gratuitous dis ponee. I do not wish to say anything to prejudice any proceedings which may be taken by the peti

tioner. But, in these circumstances, I think we should adhere to the interlocutor of the Lord Ordinary.

The other Judges concurred.

The Court adhered.

Agents for Petitioners-Tods, Murray & Jamieson, W.S.

Agents for Respondent-Dundas & Wilson, C.S.

Saturday, June 3.

SECOND DIVISION.

GRAHAM V. MACKENZIE.

Bankrupt-Discharge-Re-investment-Title to Sue -Retrocession. Held that a bankrupt who had been discharged without being re-invested in his estate was not entitled to pursue an action concerning a claim falling under the sequestration. Circumstances in which the procedure in such an action was delayed to enable the pursuer to obtain a retrocession. In February 1849 Graham and Mackenzie were concerned in a joint adventure in potatoes; and in May 1849 Mackenzie paid to Graham £165, 11s. 6d. as his share of the profits. Graham was sequestrated in March 1851; and on 31st May 1854 he obtained his discharge on payment of a dividend of 5s. 4d. in the £1. Graliam had, pending the sequestration, tried to prevail upon his trustee to sue Mackenzie for a sum of £125, 4s. 04d., due to him under the joint adventure; and accordingly, after his discharge, he brought an action for said sum in the Sheriff-court of Ross-shire.

The Sheriff-Substitute (TAYLOR) pronounced this interlocutor:

"Tain, 13th June 1853.-The Sheriff-Substitute having considered the preliminary defence of want of title in the pursuer, with the answers thereto, and heard parties thereon, sustains the defence: Finds that the pursuer has produced no title or authority to sue for the debt libelled, and no evidence that he has been re-invested by his creditors in his estate: Therefore dismisses the action: Finds the pursuer liable in the expenses of process, and allows an account thereof to be given in for taxation in common form, and decerns."

Against this interlocutor the pursuer reclaimed, and thereafter the Sheriff-Substitute pronounced the following interlocutor and note:

"Tain, 1st July 1853.-The Sheriff-Substitute having considered the Reclaiming Petition for the pursuer, refuses the desire thereof, and adheres to the interlocutor complained of, reserving to the pursuer to bring a new action in the character of assignee to the debt libelled, or otherwise in proper form, if so advised.

"Note. The pursuer admits that his estates were judicially sequestrated on 14th March 1851, which is subsequent to the date of the account sued for, and that the assets have yielded a dividend of only 5s. 4d. per pound to his creditors. In these circumstances, although he might obtain a discharge, the pursuer could not under the statute have been re-invested in his estate, and if the trustee, with the sanction of the creditors, made over the debt in question to the pursuer, he should have sued in the character of assignee, and produced proper evidence of his title."

The Sheriff-Depute (MACKENZIE) adhered.
In 1870 Graham raised the present action against

Mackenzie for the sum alleged to be due to him under the joint adventure. He met with the pleas of want of title and of res judicata, in respect of the interlocutor in the Sheriff-court above narrated.

To obviate the latter plea, on the suggestion of the Lord Ordinary, the pursuer brought an action of reduction of said decrees, and the two actions were conjoined.

The Lord Ordinary (MACKENZIE) pronounced the following interlocutor:

"Edinburgh, 16th May 1871.-The Lord Ordinary having considered the conjoined processes, repels the first plea in law stated for the pursuer in the second action at his instance: Repels also the second and fourth pleas in law stated for the defender in the said second action; and, before further answer, appoints the pursuer to call a meeting of the creditors in his sequestration to determine whether a new trustee should be appointed in room of Mr James Christie the last trustee in the said sequestration, who is now dead; or whether any other, and if so what, proceedings should be adopted with reference to the present conjoined actions at the pursuer's instance against the defender, and the claim therein insisted in against the defender.

"Note. The pursuer pleads that, by the interlocutor granting him his discharge his sequestration was declared to be at an end, and that therefore the interlocutors or decrees complained of, which were pronounced in the Sheriff-court, ought to be reduced. The pursuer was not discharged on composition, but without composition, and he was not re-invested in his estate. That discharge was granted on his own petition, no appearance or opposition having been made by the trustee or the creditors; and the mistako of the Sheriff-Substitute in declaring, at the close of the interlocutor granting the pursuer his discharge, the sequestration to be at an end,' can have no effect, the Lord Ordinary considers, upon the dependence of the sequestration. In one sense the sequestration was at an end by the granting of the discharge, inasmuch as no future acquisitions of the pursuer fell under the sequestration, and to that extent the said declaration may have a meaning. But to all other intents and purposes it was ineffectual, and the sequestration subsists for behoof of the pursuer's creditors.

"The defender objects that, as the pursuer's sequestration is thus subsisting, the trustee or creditors in his sequestration have the only right and title to insist in any claim which the pursuer may have against the defender. But although their right is preferable to that of the pursuer, they have not the only right. The radical right and interest in that claim are in the pursuer, and he may insist in it if the trustee or creditors will not do so, or interfere in the action. Mr Christie, the last trustee in the sequestration, has been dead some years. Intimation must therefore be made to the creditors, in order that they may determine whether a new trustee should be elected, or whether any other, and if so what, proceedings should be adopted with reference to the pursuer's claim. Should they decline or fail to interfere after due intimation, any objection to the pursuer's title to sue will be obviated; Gavin v. Greig, 10th June 1843, 5 D. 1191.

"The defender also pleads that reduction of the Sheriff-court interlocutors is barred by mora, and he refers to the case of Mackenzie v. Smith, 23 D. 1201, in support of his plea; but the present case

is very different from that of Mackenzie, where the decree sought to be reduced was pronounced in the Court of Session, and where there had occurred a most material change of circumstances between the date of the decree by default complained of and the action of reduction. The interlocutors or decrees complained of by the pursuer were pronounced in the Sheriff-court, and have been extracted, so that reduction is a competent mode of reviewing them. There has been no change of circumstances since the date of these interlocutors or decrees, and the object of the reduction is to set aside these interlocutors or decrees, on the ground that they are erroneous and contrary to law, so as to enable the pursuer, on the ground of fraud, to challenge a pretended settlement of a trading adventure between him and the defender, and to obtain a true count and reckoning of the profits of the joint adventure.

"As the pursuer has obtained a discharge in his sequestration, the Lord Ordinary considers that he is not bound to find caution for expenses."

The defender reclaimed. TRAYNER for him.

BUNTINE in answer.

Their Lordships were of opinion that the interlocutor of the Sheriff-Substitute was correct in law, and also that it was not res judicata of the present action; and accordingly they dismissed the action of reduction as unnecessary. They considered that in the circumstances' the Lord Ordinary had taken the proper course in calling a meeting of the creditors of the estate-and they sustained that part of his interlocutor. Their Lordships held that a bankrupt who had not been re-invested in his estate had no title to pursue claims falling under the sequestration until he had obtained a retrocession from his creditors; but that in the present case, from the time which had elapsed (nineteen years), the creditors might be presumed to have abandoned the claim.

Agent for Pursuer-James Barclay, S.S.C.
Agent for Defender-W. R. Skinner, S.S.C.

Tuesday, June 6.

EVANS V. CRAIG.

Trust, Declarator of-Proof-Writ or Oath-Delivery. A having disponed of his whole property to B, his nephew, and C and D, his nieces, including a bond and disposition in security over certain house property, the house property was afterwards sold in virtue of the powers contained in the bond, and purchased by B. B afterwards granted duplicate holograph documents to C and D in the following terms:This is to certify that I do hereby renounce all claim upon that property which formerly belonged to my uncle, . . . and which was bought in my name." He, however, continued in possession of the property. Held, in an action of declarator of trust at the instance of C after A's death, that said writ was not sufficient to instruct a trust over said property in the person of B for the benefit of A.

By a disposition and settlement executed in 1835, the late David Miller conveyed to his nephew, Mr Alexander Craig, and to his two nieces, Mrs Patrick and Mrs Evans, equally between them, and the survivor of them, his whole estate, heri

table and moveable, and in particular a sum of £340 secured over certain house property in the New Wynd of Hamilton, by bond and disposition in security; and for the more sure payment of this sum to the testator's said nephew and nieces, the settlement contained a conveyance of the subjects themselves over which it was secured. In 1837 Miller, in virtue of the powers contained in the bond, exposed the subjects to sale, and they were bought at the price of £180 by his nephew Craig, who obtained a disposition from Miller, on which he was infeft. In 1839 Craig granted to Mrs Patrick and Mrs Evans documents in these terms:-" Hamilton, March 12, 1839.-This is to certify that I do hereby renounce all claim upon that property in New Wynd of Hamilton, which formerly belonged to my uncle, David Miller, and which was bought in my name upon May 5, 1837. (Signed) ALEX. CRAIG." Thereafter, on 24th December 1839, Miller executed a codicil to his settlement, which he so far altered as to give his niece, Mrs Patrick, a liferent of his whole estate, but on the expiry of her liferent the fee was to go to Mrs Patrick, Mr Craig, and Mrs Evans, and the survivors of them equally.

In 1842 Mr Miller died, having remained in possession of the subjects in the New Wynd of Hamilton down to his death, when Mrs Patrick took possession, and continued to uplift the rents until she died in 1854. At that time Mrs Evans was in America, but she returned to this country in 1859. Mr Craig, after Mrs Patrick's death, took possession, and drew the rents of the New Wynd property until his death in 1869. Evans then raised the present action against Mr Craig's representatives, to have it declared that the disposition to him by Miller in 1837 was a conveyance in trust only, and that, under Miller's settlement she (Mrs Evans) was entitled to onehalf of the subjects and the rents thereof from Mrs Patrick's death in 1854.

Mrs

The Lord Ordinary (JERVISWOODE) having allowed a proof at large, thereafter pronounced this interlocutor:—“ Edinburgh, 28th March 1871.—The Lord Ordinary having heard counsel, and made avizandum, and considered the debate, with the proof, productions, and whole process-Finds that the writing, No. 6 of process, and which is set forth in article 3 of the condescendence for the pursuer, is holograph of the deceased Alexander Craig, and that the same has relation to the heritable subjects to which the conclusions of the summons refer; finds that the true intent and meaning of the said writing is, that the granter thereof thereby renounced all claim upon the property of the said subjects, to the same extent and effect as if he had purchased the same for the direct behoof of his uncle, David Miller, named in the said writing; and finds as a consequence that the succession to the said subjects is regulated by the disposition and settlement executed by the said David Miller on 29th June 1835, and codicil thereto, dated 24th December 1839, both of which are set forth on the record; therefore sustains the pleas in law stated on the pursuer's behalf, and finds, declares, decerns, and ordains in terms of the conclusions of the summons; but as respects the conclusions for accounting, finds that the defenders are not liable to account for any sum or sums of interest under the same prior to the date of citation in the present action, and supersedes in the meantime consideration of the alternative conclusion in the event of the failure of the defenders to produce an account

of intromissions; and further, reserves in hoc statu the question of expenses.

"Note.-Questions of considerable difficulty have arisen here, as the Lord Ordinary anticipated as probable when he allowed proof under the terms of the interlocutor of 1st February last; but although the Lord Ordinary is still conscious of the delicacy of the matter in point of law, he has come with some confidence to the conclusion that the judgment now pronounced is in accordance with the true intent and purpose of the deceased Mr Craig in making the written renunciation set forth in the third head of the condescendence." The defenders reclaimed.

WATSON and GUTHRIE, for them, contended that the proof allowed by the Lord Ordinary was incompetent, except to the extent of proving the authenticity of the document founded on by the pursuer. A declaration of trust could only be proved by the trustee's writ or oath; and although the document in question was in Mr Craig's handwriting, it did not amount to an acknowledgment that the subjects were held by him in trust either for David Miller or anyone else.

SOLICITOR-GENERAL (CLARK) and RUTHERFORD, for the pursuer, maintained that the granting of the documents to Mrs Patrick and herself could only be explained consistently with the existence of a trust in Mr Craig for behoof of Miller during his life, and on his death for their behoof as beneficiaries under his settlement. The reason of the title being taken in Craig's name was that Miller as bondholder could not lawfully purchase the property after having exposed it to sale in virtue of the powers contained in the bond, but it was not proved that Craig paid the price alleged. Cases referred to-Duncan v. White, M. 12,761; Robson v. Bywater, 19 March 1870, 8 Macph. 757; Taylor v. Watson, 8 D. 400; Macfarlane v. Fisher, 15 S. 978, 23 May 1837.

The Court unanimously recalled the Lord Ordinary's interlocutor, and dismissed the action.

Their Lordships were of opinion that as this was an action of declarator of trust, the conclusions could only be proved by the writ or oath of the trustee. The writ here produced, though sufficient to meet the requirements of the statute, did not sufficiently instruct a trust for behoof of Miller. Lord Benholme was of opinion that a writ of declarator of trust must be delivered by the trustee to the person in whose favour it was intended to operate. In the present case the document had not been delivered to Miller, but to his two nieces.

Agents for Pursuer-Hill, Reid, & Drummond, W.S.

Agents for Defenders-M'Ewen & Carment, S.S.C.

that it was jus tertii of the sub-tenant to object, although he might have an action against the principal tenant who had granted him his sub-lease; and action sustained and decree for damages granted.

This was an action brought by Mrs Duffy, draper and general merchant, Mid-Calder, against Alexander Mungle, farmer, Muirhouse Mains, concluding for damages in respect of injury sustained by the pursuer through certain operations of the defender upon the house and shop occupied by the pursuer, and of which the defender was the landlord.

The circumstances of the case sufficiently appear from the following interlocutor and note of the Lord Ordinary (ORMIDALE) :—

66

Edinburgh, 20th March 1871.-The Lord Ordinary having heard counsel for the parties in the case, and considered the argument and proceedings, including the proof,-Finds, as matter of fact, that the defender, in or about the months of October and November 1870, wrongously executed certain operations on the west gable of the house in West Calder then in the lawful possession and occupation of the pursuer, as sub-tenant thereof, to her loss, injury and damage: Finds therefore, in point of law, that the defender is liable in damages to the pursuer; assesses said damages at the sum of £40; and decerns therefor against the defender: Finds the pursuer entitled to expenses; allows her to lodge an account thereof, and remits it, when lodged, to the Auditor to tax and report. "Note.-Although the proof in this case is somewhat voluminous, the circumstances necessary now to be noticed may be shortly stated.

46

The defender, in the course of last year, purchased the house in question, which was then in the possession and occupation of the pursuer, as sub-tenant thereof under the principal tenant, Mr Hunter. Her right as sub-tenant extended to Whitsunday next 1871. The house consisted of two apartments, one to the front and one to the back. The front apartment was occupied by the pursuer as a shop, and she kept in it her stock of goods, consisting of clothes of various kinds and ironmongery. The pursuer's back apartment was used by the pursuer and her family as their dwelling place, and it is alluded to in the proof as the kitchen.

The defender also purchased some ground adjoining the pursuer's house, and on that ground he took measures for building another house, a storey higher than the pursuer's; and he proposed to avail himself of the existing west gable of the pursuer's house by making it answer as one of the ends or gables of the new house. He accordingly obtained from Mr Hunter, the principal tenant, the missive No. 7 of process, whereby that individual agreed, for the consideration therein stated, to the defender building upon the wester gable' of the pursuer's house. But in this missive no mention is made of any intention on the part of the defender to break into the existing gable of the pursuer's house, or otherwise to interfere with it, further than to build upon it. Nor did Mr Hunter, either by the missive or otherwise, undertake anything for the pursuer. It does not appear, indeed, that Mr Hunter had any right to authorise operations injurious to the pursuer, or inconsistent with the right of possession vested in her as sub-tenant; and he did not do so. The defender was, for anything disclosed in the proof, left to make his own terms with the pursuer.

"But the defender did not apply for or obtain any consent from the pursuer for his building operations, nor was any explanation or notice regarding them made to her before they were commenced. Not only, however, did the defender build his new house in connection with that occupied by her, but in doing so he slapped out places in the west gable of her house for two fire-places, nearly opposite to the fire-places in her house-one being opposite to the fire-place in her kitchen or back apartment, and the other opposite to the fire-place in her shop or front apartment. A new vent was also formed in the pursuer's gable by the defender, from his fire-place opposite the pursuer's kitchen, for a height of about 8 feet from the ground, where it joined or intersected the pursuer's vent. The vent from the defender's fire-place opposite the fire-place in the pursuer's shop or front apartment was formed by connecting it at once with the existing vent from the fire-place in the pursuer's shop or front apartment.

"In addition to these operations, the defender, in raising his new house a storey higher than the pursuer's house, cut through part of her house, where the roof commenced, thus exposing her premises, more or less, to the fall of rain, dust, lime, and other materials.

"The consequence of the defender's operations altogether was to prevent the smoke getting away from the fire-place in the pursuer's kitchen or back apartment, and to cause her loss and damage in the various ways after alluded to.

"The Lord Ordinary cannot see any room for reasonable doubt on the proof that such are the circumstances of this case; and if so, there can be as little doubt, he thinks, that the defender is liable in damages to the pursuer.

"It was contended, however, for the defender, as the Lord Ordinary understood the argument of his counsel,-1st, That the pursuer's claim, if she had any at all, was not maintainable against him, but against Mr Hunter, the principal tenant, from and under whom the pursuer had her right to the premises. The Lord Ordinary cannot assent to this view. The pursuer was in the lawful occupation of her house as sub-tenant thereof when the defender commenced, and during the whole time he carried on, his operations; and the proof shows that ho was all along quite aware of this. And yet he proceeded with his operations without leave asked or given, so far as the pursuer was concerned. If, therefore, these operations were wrongous, either in themselves or owing to the negligent or unskilful way they were executed by the defender, it appears to the Lord Ordinary that the defender must be answerable to the pursuer for the consequences, and Mr Hunter might also be answerable to the defender for these consequences if he had.authorised the operations which caused them. But there is no evidence that Mr Hunter did authorise them. He stated, in the course of his examination as a witness, that he never did authorise them; and the Lord Ordinary cannot read the letter or missive, No. 7 of process, on which exclusively the defender relies, as containing any such authority. The result, therefore, of holding that the defender is not liable, would be to leave the pursuer without a remedy.

"The defender maintained, 2dly, that his operations were in no sense wrongous, as he was the proprietor of the pursuer's house and adjoining ground, within the limits of which all the opera

tions in question were carried on; and therefore, that he was entitled to deal as he pleased with what belonged to himself. But the Lord Ordinary cannot assent to this proposition, which, in the circumstances of the present case, he holds to be quite untenable. The defender might perhaps have operated on the house in question as he pleased if the pursuer had had no right to it, and had not been in the lawful occupation of it. But she had for the time a perfectly valid right to the house as sub-tenant thereof, and was, as such, in the lawful possession and occupation of it. The defender was therefore no more entitled to operate or carve on her gable, so as to cause her injury and damage, than he would have been entitled to pull down her house about her ears. The Lord Ordinary, therefore, cannot doubt that the operations complained of by the pursuer were wrongous, so far as she was concerned.

"But, 3dly, the defender contended that as the operations complained of were executed not by him personally, but by a contractor, the latter is alone liable. It appears to the Lord Ordinary that in the circumstances of the present case, there is no room for this view of the matter. He holds it to be unquestionable law that, although a person employing a contractor to do a lawful act is not responsible for the negligence or misconduct of the contractor or servants in executing that act, yet, if the act itself is wrongful, the employer is responsible for the wrong so done by the contractor or his servants, and is liable to third persons who sustain damage from the doing of that wrong. Such was the law given effect to in the case of Ellis v. The Sheffield Gas Company, 2 E. and B. 767, cited in argument for the defender himself. In that case, accordingly, Lord Campbell (C.-J.) said, with reference to the argument addressed to the Court for the wrong-doer:Mr Jones argues for a proposition absolutely untenable, viz., that in no case can a man be responsible for the act of a person with whom he made a contract. I am clearly of opinion, that if the contractor does the thing which he is employed to do, the employer is responsible for that thing, as if he did it himself.' Now in the present case it appears very clearly from the proof that the operations complained of were authorised by the defender, and that the necessary consequences of their being executed, however skilfully and carefully, were just those which occurred. The testimony of the defender's architect, Mr Waddell, and of his builder, Mr Mitchell, is plainly and unmistakeably to this effect.

46

The pursuer maintained, in the last place, that it had not been proved that the damage sustained by the pursuer was occasioned by his operations. This being entirely a question of fact on the proof, the Lord Ordinary need only refer to the proof, which he thinks amply supports the contention that she has sustained loss, injury, and damage by and through the defender's operations.