Exch. of Pleas, was meant that where parties released for firms, they 1842. BAIN v. COOPER. should sign for their firms, and where for themselves, that they should sign as for themselves only. But this case is far stronger; because the recitals of the deed, and all the other terms of it, import that Haywood was a party to it only as an individual creditor. There is no mention of firms introduced until the deed is speaking of the parties of the third part. But to suppose that he signed as releasing for the joint-stock banking company is absolutely absurd. There is no evidence that he knew a word about the debt owing to them: and even if, in the case of an ordinary partnership, his release might operate on behalf of the firm, it does not follow that it would extend to the case of a joint-stock company. The members of such a company are not in ordinary parlance partners; and why should we construe a deed as implying by that term the members of a joint-stock bank, when we should not ordinarily so apply it? The words of a deed are to be construed like those of any other writing, according to the ordinary use and application of them. The members of such a company are shareholders, acting by means of directors, and having no power of disposition over the funds, as in the case of an ordinary partnership. Therefore, in order to wrest this into a release of the debt of the banking company, we must violate entirely the ordinary interpretation of words, and all the inferences of intention arising from the recitals of the deed. I am of opinion, therefore, that the plea has not been proved, and that this rule ought to be discharged. PARKE, B.-I am also clearly of opinion that this rule ought to be discharged. This is an action on a guarantee under seal, for the payment of debts due from three persons alleged to be carrying on business under the firm of Mayer & Co., to the Commercial Bank of England: and the question is, whether the release given by Mr. Haywood, 1842. BAIN v. COOPER. who was a member of the banking company, to Mayer & Exch. of Pleas, Co. has released the debt due from them to the company. The question arises on the sixth plea. [His Lordship stated the terms of the plea.] And the point is, whether that plea was supported by evidence at the trial. Several objections have been taken on behalf of the plaintiff, but I think it sufficient to refer to one. The question is, did the release operate as a discharge of the debt due to the banking company? That depends on the recitals of the deed, and on the language of the whole instrument taken together. [His Lordship read the recitals.] Perhaps, according to the strict grammatical construction, those words apply only to joint debts due from Mayer & Co.; but taking them to include the separate debts of each of the debtors, they then proceed to convey all their property to trustees, for the benefit of such of their creditors, whether individuals or partnership firms, as have executed or shall execute the deed of the third part; and then follows the release, on the terms of which the present question arises. That is in these words. [His Lordship read it.] Now, even supposing the word " partners" to be understood as applying not merely to ordinary commercial partnership, but also to joint-stock companies,-which I quite agree it ought not, at all events it is only to be construed as applying to those firms, some partner of which should execute the deed of the third part, and so derive a benefit under the instrument. The execution by Haywood, therefore, is not a release of any partnership debt, but only of the debt due to him individually. But I agree that, even if it were made out that he expressly executed for his partners, we ought to construe that term according to the ordinary meaning of language; and unless there be some context to explain it otherwise, or there be no other joint debt, it ought not to be extended to include a joint-stock banking company, which is not in ordinary parlance a partnership, although certainly the members are in law Exch. of Pleas, partners. 1842. BAIN v. COOPER. However, it is not necessary to decide that point, although I quite agree with the Lord Chief Baron in his view of it: but, on the other ground I have referred to, I am clearly of opinion that the rule ought to be dis charged. ALDERSON, B., concurred. ROLFE, B.-I am of the same opinion. I think this case may be disposed of on this short ground,-that there is nothing on the face of the deed to shew that the parties meant to discharge any debts, except those for the payment of which provision was made by the deed. If they had so said in express terms, the release clearly could apply to no other; and I think it so appears by necessary implication. It is clear that they never intended it to apply to a case where one of the parties of the second part was a partner, whether of an ordinary partnership or of a joint-stock company. Rule discharged. April 28. The defendant, CASE. a builder, was employed by the committee of a club to execute certain alterations at RAPSON CUBITT. The declaration stated, that before and at the time of the committing of the grievances, &c., the plaintiff had been and was the butler, and his wife the housekeeper, of a certain club, called the Clarence Club; that the dethe club-house, fendant had been and was retained and employed to exe including the preparation cute certain alterations and improvements in the cluband fixing of gas-fittings. house, and, as part thereof, to make certain alterations and improvements in the gas-apparatus and gas-lights therein: and that the defendant made the said last-mentioned alterations with such gross negligence and carelessness, that by means thereof the gas escaped and exploded with such force it, through B.'s and violence as greatly to burn, wound, and otherwise injure the plaintiff and his wife. Pleas, first, not guilty; secondly, He made a subcontract with B., a gas-fitter, to execute this part of the work. In the course of doing negligence, the gas exploded, and injured the plaintiff: Held, that the defendant was not liable in case for this injury. 1842. RAPSON that the defendant was not retained and employed to execute Exch. of Pleas, the said alterations and improvements, and, as part thereof, to make the said alterations in the gas-apparatus and gas-lights, in manner and form, &c. : on which issues were joined. At the trial before Lord Abinger, C. B., at the London sittings after the last Michaelmas term, it appeared that the defendant, a builder, had contracted with the committee of the Clarence Club to make extensive alterations and improvements in the club-house; and, amongst the rest, to prepare and fix the necessary gas-fittings. The defendant made a sub-contract with a person of the name of Bland, a gas-fitter, to execute this latter portion of the work, and it was accordingly performed by Bland. In consequence of the omission of Bland, or some of his servants, to turn off the gas from a pipe on the staircase, a large quantity of it escaped therefrom and exploded, very seriously injuring the plaintiff and his wife. It was objected for the defendant (amongst other things) that he was not liable, in an action of tort, for the negligent acts of the sub-contractor, Bland. The Lord Chief Baron inclined to this opinion, but declined to nonsuit; and in summing up, directed the jury to consider whether the injury occurred through the negligence of the defendant, or of any person employed by him; and the jury found a verdict for the plaintiff, damages £500, leave being reserved to the defendant to move to enter a nonsuit. Biggs Andrews having obtained a rule nisi accordingly (a), citing Stone v. Cartwright (b), and Bush v. Steinman (c), (a) He obtained a rule also for arresting the judgment, on the ground that the plaintiff, not being a member of the club with whom the defendant had contracted, and no public duty being imposed upon the defendant, had no right of ac tion; but on this point the Court (b) 6 T. R. 411. v. CUBITT. Exch. of Pleas, 1842. RAPSON v. CUBITT. Platt, Saunders, and Sir J. Bayley now shewed cause.The defendant is responsible for the negligence of Bland, who was employed by him. The case falls within the principle of Witte v. Hague (a), where an engineer, who was employed to construct a steam-engine boiler, was held liable for the consequences of an explosion produced by the insufficiency of the materials, the boiler being under the management of his servants. [Alderson, B.-There the engine was worked by the man who had misconstructed it. Parke, B., referred to Quarman v. Burnett (b).] In Randleson v. Murray (c), the defendants, who were warehousemen, engaged a master porter to lower a barrel of flour from their warehouse; and during the process of lowering it, the barrel fell and injured the plaintiff, owing to the defectiveness of a rope furnished by the master porter: the defendants were held to be liable for the injury. That was, equally with the present, the case of a contract; and shews that the servant, for whose acts the employer is liable, does not mean a menial servant, but any one who is performing a service for another by whom he is employed. So, in Bush v. Steinman, the owner of a house, who had contracted with a workman for the repair of it, was held to be responsible for an injury occasioned by the negligence of a sub-contractor. Heath, J., there says, "I found my opinion on this single point, that all the sub-contracting parties were in the employ of the defendant." So also, in Matthews v. The West London Waterworks Company (d), it was held that an action might be maintained against the company by a person who, in passing along the street, had been injured by reason of the negligence of workmen employed by persons who had contracted with the company to lay down water-pipes. [Lord Abinger, C. B.-There the defendants caused their sub |