Ashton (e), Angus v. Dalton (f). In the first of these cases the plaintiff and the defendant were owners of two adjoining houses, and the plaintiff was entitled to the support for his house of the defendant's land. The defendant employed a contractor to pull down his house, excavate the foundations of it, and to rebuild it. The contractor undertook the risk of supporting the plaintiff's house, as far as might be necessary, during the work, and to make good any damage and satisfy any claims arising therefrom. The means taken by the contractor to support the house were insufficient; it was injured; and the defendant was held liable. These cases need not be taken to re-affirm the doctrine stated in Bush v. Steinman (g). They merely lay it down that no one can escape from the consequences of interfering with or endangering a neighbour's right of support or of ordering work dangerous to others by handing over the execution of it to a contractor.

relieve himself of his responsibility by employing someone else-whether it be the contractor employed to do the work from which the danger arises, or some independent personto do what is necessary to prevent the act he has ordered to be done from

becoming wrongful. There is an obvious difference between committing work to a contractor to be executed from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted." All this seems applicable to Butler v. Hunter. See also Percival v. Hughes (1882), L. R. 9 Q. B. D. 441; 51 L. J. Q. B. 338; 46 L. T. N. S. 677. (Defendant, owner of a house adjoining to the house of plaintiff, employed a competent architect and contractor to rebuild former; the workmen of the contractor negligently and without the knowledge of the defendant, cut into a party wall to fix a stair

case, whereby the plaintiff's house fell; defendant liable, though the contractors were competent, and though the fixing of the staircase was not in itself a hazardous operation. Holker, L. J., dissented). The majority of the judges of the Court of Appeal appear to put their decision on the ground that the fixing of the staircase was part of a hazardous operation; but, as Holker, L. J., pointed out, the hazardous part of the operation was over before the fixing of the staircase was commenced.

(e) (1876), L. R. 1 Q. B. D. 314; 45 L. J. Q. B. 260. (Defendant, lessee and occupier of a house; from the front of it projected a heavy lamp, which fell upon and injured the plaintiff. The defendant employed an experienced gas-fitter, through whose carelessness the lamp was loosened; held that the defendant was liable.)

(f) (1877), L. R. 3 Q. B. D. 85; 4 Q. B. D. 162; 6 Ap. 746. (g) See note, p. 262.

A person who employs a contractor to execute work is liable for the wrongful acts of the contractor if the former controls and interferes with the execution of the work.

The case most frequently cited in illustration of this proposition is Burgess v. Gray (h), the facts of which were these : -A. employed B. to make a drain to communicate with the common sewer. B.'s servant left a heap of gravel on the highway, and the plaintiff was thereby injured. Before the accident, A. had been informed that the heap was dangerous, and had promised to remove it. It also appeared that B. had charged A. a certain rate per load for the removal of the gravel; in these circumstances the Court thought that there was evidence that A. had not abandoned the entire control of the work, and that he was consequently responsible to the plaintiff. In another case a person had hired for the day a carriage. According to the decision in Laugher v. Pointer (i), he would not be responsible for the acts of the

(h) (1845), 1 C. B. 578. See also Blake v. Thirst (1863), 2 H. & C. 20; 32 L. J. Ex. 188. (Defendant, a builder, contracted with local commissioners to make a sewer, and underlet to N. the excavation and the brickwork at a fixed price per yard; N. employed his own men, but defendant had the right of dismissing them. In consequence of N.'s negligence to provide a sufficient light, plaintiff fell into an unfenced track; held that defendant was liable. But see remarks of Martin, B.); Stephen v. Thurso Police Commissioners (1876), 3 R. 535; Sadler v. Henlock (1855), 4 E. & B. 570; 3 C. L. R. 760; 1 Jur. N. S. 677; 24 L. J. Q. B. 138.

(i) See p. 59; also Shiells v. Edinburgh and Glasgow Ry. Co. (1856), 18 F. 1199. (Defendants provided cart, a contractor the horse and driver; defendants not liable.) In another Scotch case Stephen v. Thurso

Police Commissioners (1876), 3 R. at p. 542-Lord Gifford made the following remarks: "The test always is, 'Had the superior personal control or power over the acting or mode of acting of the subordinate?' I use the expression personal control,' because I think that this is always the turning point in such cases. Was there a control or direction of the person, in opposition to a mere right to object to the quality or description of the work done? . . It is sometimes said that the question is, whether the relation between the immediate wrong-doer and the defender is that of master and servant, or employer and contractor. But these words are a little ambiguous; and, though they may indicate generally the rule of law, the real question always is, I think, who had the control and direction of the person who did the wrong?"

postilions, who were the servants of the owner. interfered with them, he was held responsible (k).

But having

Difference of opinion has arisen as to the precise position of drivers of cabs who are remunerated by their receipts over a certain fixed sum. The question whether they are the servants of the owners of cabs, or merely bailees, has already been dealt with. The point was first considered in Morley v. Dunscombe (1), and the Court there thought that the driver was a servant remunerated in a peculiar way. This view was also taken in Powles v. Hider (m), where it was held that having regard to the 1 & 2 Will. IV., c. 22, s. 20, and 6 & 7 Vict. c. 86, ss. 23, 24, 27 and 28, the driver was the servant of the owner, and that the latter was liable to third persons for the negligence of the former. When, however, the question arose in a different form in Fowler v. Lock (n), and King v. Spurr (o), the Courts did not take the view of the relation adopted in Powles v. Hider.

It has already been stated with reference to Laugher v. Pointer, that persons who hire a carriage and servant do not thereby become responsible for the acts of the servant; he remains the servant of the owner. In like manner the owners of ships have been held liable for the wrongful acts of their servants, even though at the time the injury was committed the vessel was chartered or hired by some other person. Thus in Dalyell v. Tyrer (p), the lessee of a ferry hired for a day a steam-tug with its crew from the defendants; the plaintiff, who was a passenger on board the tug, was injured by the breaking of a rope, owing to the

(k) McLaughlin v. Pryor (1842), 4 M. & G. 48; Smith v. Lawrence (1828), 2 M. & R. 1; Brady v. Giles (1835), 1 Mood. & Ro. 494. The last case cannot be regarded as a subsisting authority. See also Randleson v. Murray (1838), 8 A. & E. 109. (A warehouseman employed a master porter to remove a barrel from his warehouse; the master porter employed his own men and tackle, and, through the negligence of the men, the barrel fell and injured the

plaintiff; held that the warehouseman was liable.) This case has often been questioned; Murphey v. Caralli (1864), 3 H. & C. 462.

(7) (1848), 11 L. T. 199.

(m) (1856), 6 E. & B. 207.

(n) (1872-74), L. R. 7 C. P. 272; 26 L. T. 476; 20 W. R. 672; 41 L. J. C. P. 99.

(0) (1881), L. R. 8 Q. B. 104.

(p) (1858), E. B. & E. 899; 28 L. J. Q. B. 52.

negligence of the crew in mooring the tug. It was held that the crew remained the servants of the defendants, and that they were answerable.

A person is not liable for the acts of those whom he has not chosen to serve him, and whose services he is bound by statute or otherwise to accept.

This is exemplified in regard to pilots. Ship-owners being compelled in certain circumstances to take them on board and give them the charge of their ships, are not made to suffer for a pilot's mistakes or carelessness (q). It is sometimes a question of difficulty to know when the employment of a pilot is imperative, but if a vessel be under the care of a compulsory pilot he is not regarded as the servant of the owner. Indeed, the 388th section of the Merchant Shipping Act of 1854, 17 & 18 Vict. c. 104, expressly declares that no owner or master of any ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship, within any district where the employment of such pilot is compulsory by law."

(q) Lucey v. Ingram (1840), 6 M. & W. 302. (Owner not liable when ship under conduct of a licensed pilot. This case turned chiefly on 6 Geo. IV., c. 125. "The master, however well qualified to conduct the ship himself, is bound, under a penalty, in a great measure to divest himself of its control, and to give up the charge to the pilot. As a necessary consequence the master and owners are exempted from responsibility for acts resulting from the mismanagement of the pilot.") General Steam Navigation Co. v. British and Colonial Steam Naviga tion Co. (1868), L. R. 3 Ex. 330; (1869), L. R. 4 Ex. 238. The main question here was, whether the employment of the pilot was compulsory at the spot where the collision took place. Martin, B.,

still intimated his view that at Common Law the owners would not be liable. See also Ritchie v. Bowsfield (1817), 7 Taunt. 309; The Stettin (1863), Br. & Lush. 199; The Iona (1867), L. R. 1 P. C. 426; The Velasquez (1867), L. R. 1 P. C. 494. Somewhat inconsistently, the owner has sometimes been regarded as liable for the contributory negligence of the pilot. See judgment of Lord Blackburn in Spaight v. Tedcastle (1881), L. R. 6 App. 217. It is to be observed that the exemption does not apply when the pilot has to be selected out of a limited class; Martin v. Temperley (1843), 4 Q. B. 298; and see also The Guy Mannering (1882), L. R. 7 P. D. 52 and 132, as to a case in which the pilot has not control of the navigation.

In like manner the captain of a man-of-war is not accountable for the acts of his officers (r). So, too, as explained in Stone v. Cartwright (u), a bailiff, steward, or manager is not liable for the acts of the servants whom he appoints.

;

In Quarman v. Burnett (x), it is observed by Parke, B., that "the liability by virtue of the principle of relation of master and servant must cease where the relation itself ceases to exist; and no other person than the master of such servant can be liable, on the simple ground that the servant is the servant of another, and his act the act of another consequently, a third person entering into a contract with a master, which does not raise the relation of master and servant at all, is not thereby rendered liable." Such expressions, however, must not be understood to interfere with the general rule that principals are answerable for the acts of their agents within the scope of their employment. Thus litigants may be liable for the acts of their solicitors in the course of litigation (y), and merchants for the conduct of their factors or agents (≈). The responsibility of masters

is but an application of a general rule (a).

Masters are liable to third persons for the consequences of negligence in employing incompetent

servants.

This question has usually arisen in actions brought by servants against masters when the defence of common employ

(r) Nicholson v. Mounsey (1838), 15 East, 384; but see as to liability of master of a merchant-ship, who is for some purposes regarded as owner, Maude and Pollock, 4th Ed. i., 155; Story on Agency, sec. 317.

(u) (1795), 6 T. R. 411.

(x) (1840), 6 M. & W. 499, 509; Stone v. Cartwright, 6 T. R. 411.

(y) Collett v. Foster (1857), 2 H. & N. 356; and compare Smith v. Keal (1882), L. R. 9 Q. B. D. 340.

(z) Grammar v. Nixon (1725), 1 Str. 653; Hern v. Nichols (1701), 1

Salk. 289; on the other hand, Lucas v. Mason (1875), L. R. 10 Ex. 251.

(a) As to this point, see Haseler v. Lemoyne (1858), 28 L. J. C. P. 103; remarks of Bramwell, B., at p. 344, in Udell v. Atherton (1861), 30 L. J. Ex.; Lindley on Partnership, vol. i. 253; Wharton on Agency, sec. 19; Story on Agency, sec. 308, and Mr. Green's note to sec. 451. Probably the correct view is that the servant is one kind of agent, the extent of whose authority is to be inferred from the nature of his employment.