because it was more reasonable that he that puts a trust and confidence in the deceiver should be a loser than a stranger. In Jones v. Hart, 2 Id. 441, the servants of A., with his cart, ran against another cart wherein was a pipe of sack, and spoiled the sack; held that an action would lie against A.

These cases illustrate the general principle that, for the negligent conduct of a person's servant, the master is answerable in damages.

The question here is, whether the workmen employed upon the road by whose negligence the accident happened can be considered the servants of the corporation? Cases analogous to this have undergone considerable investigation both in the courts of England and America, and principles have been settled which seem to comprehend the case before us. And the inquiry is, What is the principle upon which the defendants should be charged or discharged?

In Stone v. Cartwright, 6 T. R. 411, the action was case for so negligently working a coal mine that the plaintiff's buildings were undermined. The defendant had been appointed manager of the mine by the court of chancery, the mine belonging to an infant ward of that court, and the defendant employed a bailiff, who superintended the work, and hired and dismissed the colliers at his pleasure, but the defendant took no personal concern in the business, and had given no directions as to the manner of working it. It was held that the action would not lie against the defendant, but should have been brought either "against the hand committing the injury or against the owner, for whom the act was done," and the plaintiff was nonsuited.

Here, between the owner and the persons who did the injury, there were two intermediate agents, the defendant and the bailiff, and the case settles that the owner is answerable.

Lord Lonsdale v. Littledale, 2 H. Black. 267, 299, was case for a similar injury, and held rightly brought against the owner of the coal mine.

We come now in the order of time to Bush v. Steinman, 1 Bos. & Pul. 404, which is a leading case upon this subject. The de. fendant bought a house by the roadside, but had never occupied it. He contracted with a surveyor to put it in repair. A carpenter, having a contract under the surveyor to do the whole business, employed a bricklayer under him, and he again coutracted for a quantity of lime with a lime-burner, by whose servant the lime was laid in the road. The plaintiff brought case against the defendant, the owner, for injury sustained by

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himself, by being overturned in a chaise, by means of the lime. Here, between the owner of the property and him who actually did the wrong, there were four intermediate agents.

Lord Chief Justice Eyre says that he found some difficulty in holding the defendant liable, because he was so far removed from the immediate author of the nuisance, and that he hesitated in carrying the responsibility beyond the immediate master of the person who committed the injury. But he concurs with his brethren that the action will lie, although he says that he finds great difficulty in stating with accuracy the grounds on which it is to be supported. He, however, cites with approbation the cases of Stone v. Cartwright and Lord Lonsdale v. Littledale, and states that in the latter case the defendant was liable, on the ground that the work, being carried on for his benefit and on his property, all the persons employed must have been considered as his agents; whether he worked the mine by agents, by servants, or by contractors, still it was his work. He concludes that the case can not be distinguished from Lord Lonsdale v. Littledale, and, consequently, is of opinion that the action lay. But he somewhat inconsistently goes on to say that he still feels some difficulty in stating the precise principle on which the action is to be supported.

Mr. Justice Heath founds his opinion on this single point, that all the subcontracting parties were in the employ of the defendant.

Mr. Justice Rooke says that he who has work going on for his benefit, and on his own premises, must be civilly answerable for the acts of those whom he employs. The law intends that he has a control over all those persons who work on his own premises, and he shall not be allowed to discharge himself from that intendment by any act or contract of his own. If the employer suffer by the acts of those with whom he has contracted, he must seek his remedy against them.

In Laugher v. Pointer, 5 Barn. & Cress. 547, the question of the extent of the liability of the owner of property for the negligence of his servants was much discussed. The owner of a carriage hired of a stable-keeper a pair of horses to draw it for him a day, and the owner of the horses provided a driver, who had no wages from his master, but depended upon receiving a gratuity from the persons whose carriages he drove, and the hirer gave him five shillings for his day's work. Through the negligence of the driver, an injury was done to the plaintiff's horse, and the plaintiff brought case against the owner of the

carriage. There being a difference of opinion upon the bench, the case was argued before all the twelve judges, except the lord chief baron. A nonsuit had been directed, and a rule nisi for a new trial was granted. But the judges of the king's bench were still divided equally, and the rule was discharged. Mr. Justice Littledale thought the action would not lie, because the driver could not be considered as the servant of the defendant, not being hired by the defendant, and receiving no wages from him, but only a gratuity, and not being subject to be dismissed by him. He held that the rule can not be carried so far as to establish the doctrine that the only thing to be looked to is, whether, in the end, the principal pays for the employment in the course of which the injury is sustained. He criticises the doctrine of Mr. Justice Heath, in Bush v. Steinman, that if a person hires a coach upon a job, and a job coachman is sent with it, and does any injury, the hirer of the coach is answerable. He thinks that Bush v. Steinman does not rest upon the same basis as it would had it not been for the doubts expressed by the Lord Chief Justice Eyre. But without impugning the substantial correctness of that decision any further, he admits that the rule of law may be that in all cases where a man is in possession of fixed property, he must take care that his property is so used and managed that other persons are not injured, and that, whether his property be managed by his own immediate servants, or by contractors or their servants. The injuries upon land or buildings are in the nature of nuisances, for which the occupier ought to be chargeable when occasioned by any acts of persons whom he brings upon the premises.

The Lord Chief Justice Abbott says that Stone v. Cartwright, Lonsdale v. Littledale, and Bush v. Steinman do not afford a rule by which the present case before him should be governed. "Whatever," he says, "is done for the working of my mine or repair of my house, by persons mediately or immediately employed by me, may be considered as done by me. I have the control and management of all that belongs to my land or my house, and it is my fault if I do not so exercise my authority as to prevent injury to another."

Mr. Justice Holyroyd, one of the most eminent of modern English judges, says the responsibility is not confined to the immediate master of the person who committed the injury, and "that the action may be brought against the person from whom the authority flows to do the act, in the negligent execution of which the injury has arisen, is established in the case of Bush v.

Steinman," and Mr. Justice Bayley agreed with him that the action was maintainable.

It is to be noticed that Abbott, C. J., and Littledale, J., did not deny the soundness of the judgment in Bush v. Steinman. They denied its applicability to the case then before them, and that was the extent of their criticism upon it, except the remarks of Littledale, J., upon the dictum of Mr. Justice Heath.

In the subsequent case of Randleson v. Murray, 8 Ad. & El. 109, the defendant, a warehouseman, employed a master porter to remove a barrel from his warehouse. The porter employed his own men and tackle, and through the negligence of his men, or rather through the insufficiency of the tackle, the barrel fell and injured the plaintiff. It was held that the action was maintainable. Mr. Justice Littledale remarked that it made no difference whether the persons whose negligence occasioned the injury be servant of the defendant, paid by daily wages, or be brought to the warehouse by a person employed by the defendant, and that the law was the same in each case: See also Harris v. Baker, 4 Mau. & Sel. 27.

We have discussed this question at more length than might seem to be necessary, because it is an important one in itself, and increases in importance as roads of this description increase throughout the country. And it is desirable that their rights and liabilities, and those of individuals in relation to them, should be definitely settled as soon as may be. It appears that the case of Bush v. Steinman has sometimes been supposed to be questioned by subsequent decisions.

In the case of Randleson v. Murray, the counsel for the defendant so alleges. But we have not been able to find any case where its soundness has been doubted upon the facts of the case. It is said in one of the most scientific of our professional treatises, Hammond on Parties, 92, that the case settles, in effect, that the lime-burner might have sued the owner of the house on the contract made by the latter with the carpenter, and that it is at variance with the decision of the court in Bramah v. Lord Abington, 13 East, 66, but this able writer implies no doubt of the decision.

Milligan v. Wedge, 12 Ad. & El. 737, which is cited by the counsel for the defendant, was an action on the case. The facts were, that the buyer of a bullock employed a licensed drover to drive it from Smithfield. By the by-laws of London, no one but a licensed drover could be so employed. The drover employed a boy to drive the bullock, together with others, the

property of different persons, to the owner's slaughter-house. Mischief was occasioned by the bullock through the careless driving of the boy. It was held that the owner was not liable for the injury, the boy not being in point of law his servant. Lord Chief Justice Denman said: "The party sued has not done the act complained of, but has employed another, who is recognized by the law as exercising a distinct calling. The butcher was not bound to drive the beast to the slaughter-house himself; he might not know how to drive it. He employs a drover, who employs a servant, who does the mischief. The drover, therefore, is liable, and not the owner of the beast. I may remark that one might perhaps be reconciled to the distinction between cases of fixed and of movable property, by considering that to hold the owner of land or buildings liable to injury done in respect of that property, will enable the party injured to know more readily from whom he is to seek redress. In Randleson v. Murray, 8 Ad. & El. 109, the work was in effect done by the defendant himself at his own warehouse; if he chose, instead of keeping a porter, to hire one by the day, he did not thereby cease to be liable for injury done by the porter while under his control."

Mr. Justice Williams said: "The difficulty always is, to say whose servant the person is that does the injury; when you decide that, the question is solved. To say that that party is liable from whom the act ultimately originates, is indeed a rule of great generality, and one which will solve the greater number of questions; but its applicability fails in one case, for where the person who does the injury exercises an independent employment, the party employing him is clearly not liable. I agree in the decision of Randleson v. Murray, for the warehouseman's servant, whether daily or weekly, is equally under the control of the warehouseman. And that is the way in which Mr. Justice Story puts this point; he brings it to the question, Who employed the person that did the injury?" Story on Agency, c. 17, sec. 452 et seq.

Now in this case, the soundness of the decision in Bush v. Steinman, 1 Bos. & Pul. 404, is not questioned, nor is there any inconsistency between the two cases. If the solution of the question depends upon ascertaining whose servant the person is that does the injury, there can be little doubt in the case before us. The railroad corporation made a contract with certain persons to construct a part of the railroad. The contractors were in the immediate employment of the defendants. It is