the question whether the defendant was liable for this injury, Holroyd, J., and Bayley, J., were of opinion that he was; and Littledale, J., and Abbott, C. J., were of opinion that he was not; considering the coachman not his servant. Laugher v. Pointer, 5 Barn. & Cress. 547, 12 Eng. Com. Law Rep. 312, 13. It is observed by Mr. Justice Story in his book on agency, p. 406, that the able judgments in this case, on both sides, "have exhausted the whole learning of the subject, and should on that account, be attentively studied." The court of exchequer has considered them fully and come to the conclusion that the weight of authority and of legal principle is in favour of the view taken by Lord Tenterden and Mr. Justice Littledale. Quarman v. Burnett &c. 6 M. & W. 509. The court holds that the liability to make compensation for the 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 actually 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. Rolfe, B., in Hobbit.v. Railway Co. 4 W. H. & G. 255; Hartwell v. Roper, 21 Wend. 623; Fletcher &c. v. Braddock &c. 5 Bos. & Pul. 182; Sproul &c. v. Hemmingway, 14 Pick. 1; Stone v. Codman, 15 Id. 297; Earle v. Hall, 2 Metcalf 357.

The distinction of Littledale, J., between the liability of a party employing his own servant and the liability of a party employing a person who follows a distinct and independent occupation of his own, has been acted on by the court of queen's bench. A butcher employed a drover whose calling specially qualified him for the task entrusted to him, and the drover furnished for that task a servant who did the act complained of. It was held that the party liable was the drover and not the butcher. Milligan v. Wedge, 4 Per. & Dav. 714, 12 Adol. & El. 737, 40 Eng. Com. Law Rep. 177.

It has further been held that a defendant was not liable for injury caused by the negligence of a person who was not his servant but only a sub-contractor to do certain works. Rapson v. Cubitt, 9 M. & W. 709; Knight v. Fox &c. 5 W. H. & G. 721; Brown v. Lent, 20 Vermont 529. Where dam

age arose from the unskilful construction of a bank, the question whether certain commissioners were liable for that damage was considered to depend on whether the contractor was to be regarded as their servant so that they may be called the makers of this work by his agency; and it was held that he was not to be considered as such servant but as 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. Allen v. Hayward, 7 Adol. & El. N. S. 960, 53 Eng. Com. Law Rep. 960.

The case last cited governed Reedie v. Railway Co. 4 W. H. & G. 244. Certain persons having contracted with a railway company to make a portion of the railway,. those contractors proceeded with their work, and in the course of it by the negligence of some of the contractors' workmen a heavy stone fell from a travelling truck upon a man who was passing along the road underneath. The defendants being at the time of the accident, the owners of the railway, the question was whether they were responsible; and it was held they were not. The rule of this case is now established in England. Cuthbertson v. Parsons, 12 Com. Bench (3 J. Scott) 310, 11, 74 Eng. Coni. Law Rep. 310, 11. The opinion of Ruffin, C. J., is more in accordance with it than is the decision of the court in Wiswall v. Bunson, 10 Iredell 554.

4. Whether there is any distinction between real and personal property in regard to the owner's liability for negligence in its management. Owner of fixed property may be liable for a nuisance connected with it. no such nuisance, owner no more liable for negligence of contractor as to fixed than as to moveable property.

Where

In several cases, the owners of fixed property have been held liable for the consequences of acts done upon it by persons not strictly their servants or agents. Thus the owner of a mine has been held answerable to a person whose property was injured by the improvident manner of working it. Lonsdale v. Littledale, 2 H. Bl. 267, 299; Stone &c. v. Cartwright, 6 T. R. 411. And the owner of a house has been deemed answerable for an improvident act taking place in the repair of it. Bush v. Steinman, 1 Bos. & Pul. 404. "Whatever," says Abbott, C. J., "is done for the working of my mine or the repair of my house by persons mediately or immediately employed by me may be considered as done by me." Laugher v. Pointer, 5 Barn. & Cress. 547, cited ante, VOL. II.-45

p. 704; Randleson v. Murray &c. 8 Adol. & El. 109, 35 Eng. Com. Law Rep. 342. Though the premises be leased, yet if the landlord take upon himself to order and superintend repairs, he may, under such circumstances, be regarded as a principal and as such be made answerable for the acts of the persons he employed. Leslie v. Pounds, 4 Taunt. 649. But generally speaking the owner of property will not be liable for the act of a person who is not the owner's servant but his lessee, having as such the control and possession of the premises. Fiske v. Framingham Manuf'g Co. 14 Pick. 491, 21 Wend. 623.

Eyre, C. J., in Bush v. Steinman, 1 Bos. & Pul. 406, hesitated in carrying the responsibility beyond the immediate master of the person who committed the injury. In his final judgment, he did not dissent from his brother judges, yet he felt great difficulty in stating the grounds on which the action was to be supported. Heath, J. founded his opinion on this single point, "that all the sub-contracting parties were in the employ of the defendant." Rooke, J. considered "that he has a control over all those persons who work on his premises, and he shall not be allowed to discharge himself from that intendment of law by any act or contract of his own." That the judges in their opinions in Bush v. Steinman, went too far, is now established, by the modern decisions of the English courts. The subject was much discussed in Laugher v. Pointer, 5 Barn. & Cress. 547, cited ante, p. 704; and subsequently before the court of exchequer. It was argued before this court that there is a distinction on this subject, between injuries arising from the careless or unskilful management of an animal or other personal chattel, and an injury resulting from the negligent management of fixed real property; that in the latter case the owner is responsible for all injuries to passers by or others, howsoever they may have been occasioned. But on full consideration the court came to the conclusion that there is no such distinction unless perhaps in cases where the act complained of is such as to amount to a nuisance; and that according to the modern decisions, Bush v. Steinman, 1 Bos. & Pul. 404, cannot be supported on the ground on which the judgment in that case proceeded. Hobbit v. Railway Co. 4 W. H. & G. 256. In order to fix a railway company it must be shewn that the act complained of against it was done by their authority, that is, by some person acting for them, within the scope of his authority, or by ap pointment under seal, or by the company acting together in committee. If the act done was through the medium of a contractor, the inference is that the company are not liable for

such act unless they have adopted it.

N. W. Railway Co. 5 W. H. & G. 66.

Glover v. London &

The cases shew clearly that in England, the principle of the decision of Bush v. Steinman is not now considered law. Parke, B., in Gayford v. Nicholls, 9 W. H. & G. 707. Yet that principle governed Lowell v. The Boston & Lowell Railroad Corporation, 23 Pick. 31, and influenced the decision of Bailey &c. v. The Mayor &c. of New York, 3 Hill 531, cited ante, p. 694, 5. When this case came before the court of errors (in 1845), Walworth, C., had great difficulty in bring ing his mind to the conclusion that the relation of master and servant, or of principal and agent, existed between the corporation and the engineers and others employed in the construction of the Croton dam, so as to render the corporation liable on that ground for negligence which had occurred in such construction; but he thought the principle of Bush v. Steinman applied to the case rendered the corporation liable for such improper construction. It was upon the ground that the dam was the property of the corporation and that such corporation was legally bound to see that its corporate property was not used by any one so as to become noxious to the occupiers of property on the river below, that the judgment in this case was in his opinion to be sustained, if it could be sustained at all. And upon that ground, though he confessed with some hesitation, he assented to the affirmance of the judgment. Mayor &c. of New York v. Bailey, 2 Denio 442-445. Hand, senator, relied on Bush v. Steinman, and cases of that class, as establishing the liability of an owner of real estate, although there are several sub-contracts and there is no personal supervision by him. S. C. 450.

The owner of real property such as land or houses may be responsible for nuisances occasioned by the mode in which his property is used by others not standing in the relation of servants to him, or part of his family. But then his liability must be founded on the principle that he has not taken due care to prevent the doing of acts which it was his duty to prevent, whether done by his servants or others. If, for instance, a person occupying a house or a field should permit another to carry on there a noxious trade, so as to be a nuisance to his neighbours, it may be that he would be responsible, though the acts complained of were neither his acts nor the acts of his servants. He would have violated the rule of law, sic utere tuo ut alienum non ladas. Rolfe, B., 4 W. H. & G. 256; Rich v. Basterfield, 4 Man. Gr. & Scott 802, 56 Eng. Com. Law Rep. 802.

In Rich v. Basterfield, the chimney erected by the defen dant was not in itself a nuisance, and unless used in a manner which caused smoke to issue so as to prejudice the plaintiff in the occupation of his own premises, no complaint could have been made against it. The landlord not having let the premises with any existing nuisance upon them, and the fires which created the smoke complained of, not being made by the landlord or his servants, but by his tenants, he was adjudged not responsible. The utmost that could be imputed to the landlord in this case was that he enabled the tenant to make fires if he pleased.

In Reedie v. Railway Co. the wrongful act could not be treated as a nuisance; it was one single act of negligence. In such case it is considered there is no principle for making any distinction by reason of the negligence having arisen in reference to real and not to personal property. The railway company having by the contract the power of insisting on the removal of careless or incompetent workmen, it was contended the company must be responsible for their non-removal. But this power of removal, it seemed to the court, did not vary the case. For the workman was still the servant of the contractor only; the fact that the defendants might have insisted on his removal, if they thought him careless or unskilful, did not make him their servant. In Quarman v. Burnett, the particular driver was selected by the defendants; but this was held not to affect the liability of the driver's master, or to create any responsibility in the defendants; the same principle applied in the case of the railway company.

It has been seen that the opinion in Reedie v. Railway Co. admits that there may be some exception, "perhaps, in cases where the act complained of is such as to amount to a nuisance." That means a nuisance as connected with a man's house, or with his fixed property. Knight v. For &c. 5 W. H. & G. 724; Overton v. Freeman &c. 11 Com. Bench (2 J. Scott) 871, 73 Eng. Com. Law Rep. 871. There is a case of a contract by the West London water works company with certain pipe layers to lay down iron pipes for the conveyance of water through the different streets of the metropolis, in which it appeared that the pipe layers hired the men actually employed to do the work, and these men in laying the pipes left a quantity of rubbish in the street, without any light sufficient to shew it, or watchmen to warn passengers of their danger, and the consequence was that a coach driven by the plaintiff was overturned, his leg was broken, and he was rendered a cripple for life. The question being whether the action ought not to have been against the pipe layers, Lord El