1842.

RAPSON

contractor to commit a public nuisance.] In Bates v. Pil- Exch. of Pleas, ling (a), the general principle was recognized, that any one who employs another to do an act, in the course of which he commits a trespass, is equally liable with him.

B. Andrews and J. Henderson, contrà, were stopped by the Court.

Lord ABINGER, C. B.-The rule must be absolute to enter a nonsuit. The injury was occasioned by the negligence of Bland, who did not stand in the relation of servant to the defendant, but was merely a sub-contractor with him; and to him the plaintiff must look for redress. I think the true principle of law, consistent with common sense, was laid down in the case of Quarman v. Burnett, in which all the previous cases on this subject were cited and considered, and some distinguished and some overruled. I have always been of the same opinion, and therefore see no reason for departing from that decision.

PARKE, B.—I am of the same opinion. The plaintiff has his remedy against Bland, whose negligence was the cause of the injury; if he attempts to go further, and to fix the defendant, it can only be on the ground of Bland's being the servant of the defendant: but then the obvious answer is, that Bland was only a sub-contractor to do certain of the works, and that the relation of master and servant did not subsist between him and the defendant. The true rule on this subject was laid down by this Court in the case of Quarman v. Burnett, which is directly in point, and cannot be distinguished from the present case. The Court there said," The liability by virtue of the principle of relation of master and servant must cease when the relation itself ceases to exist; and no other person than the master of such servant can be liable, on the simple ground

(a) 6 B. & Cr. 38; 9 D. & R. 44.

v.

CUBITT.

Exch. of Pleas, that the servant is the servant of another, and his act the 1842.

RAPSON

v.

CUBITT.

act of another; consequently, a third person entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable." And again,-" It is true that there are cases— for instance, that of Bush v. Steinman, Sly v. Edgeley (a), and others and perhaps amongst them may be classed the recent case of Randleson v. Murray-in which the occupiers of land or buildings have been held responsible for acts of others than their servants, done upon, or near, or in respect of their property. But those cases are well distinguished by my brother Littledale, in his very able judgment in Laugher v. Pointer (b). In that case he says, ——′ 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 done 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 use of the premises is confined by the law to himself, and he should take care not to bring persons there who do any mischief to others." The case of Quarman v. Burnett has been approved of, in its main principles, by the Court of Queen's Bench, in the case of Milligan v. Wedge (c). There a butcher had employed a licensed drover to drive home a bullock he had bought at Smithfield market, and the drover's boy, by his negligent driving, had allowed the bullock to run into the plaintiff's show-room, where it did considerable damage; it was held that the owner of the bullock was not liable for the damage; and Lord Denman

(a) 6 Esp. 6.

(b) 5 B. & Cr. 547; 8 D. & R. 559. (c) 12 Ad. & Ell. 737; 4 P. & D. 714.

1842.

RAPSON

บ.

CUBITT.

there said," In Randleson v. Murray, the work to be Exch. of Pleas, done was necessary work done on the premises; the owner would have been liable if he had used his own servants and his own tackle; by hiring a porter and his tackle for a day, he could not exempt himself from that liability." Lord Denman there seems to adopt the distinction which this Court, in Quarman v. Burnett, said ought to be taken. If a man has anything to be done on his own premises, he must take care to injure no man in the mode of conducting the work. Whether he injures a passenger in the street, or a servant employed about his work, seems to make no difference. I think, therefore, that as Bland was a subcontractor, and not the servant of the defendant, the latter is not liable, and the rule for a nonsuit must be made absolute.

ALDERSON, B., and ROLFE, B., concurred.

Rule absolute.

716

IN THE EXCHEQUER CHAMBER.

Exch. Chamber, 1842.

April 26.

Goods were shipped at

Bombay on

(In Error from the Court of Exchequer).

Sir JOHN TOBIN, Knt. v. CRAWFORD and Others.

A WRIT of error having been brought on the judgment of the Court of Exchequer in this case (a), the case was board a ship of argued in this Court in the vacation after Trinity Term, the plaintiff, a shipowner in 1841, by Sir F. Pollock for the plaintiff, and by Erle for Liverpool, and by the bill of the defendants. lading were to be delivered

The Court took time to consider, and now the judgment

"unto order, or of the Court was delivered by

to his and their

assigns, on paying freight for the same."

The bill of

dorsed by the shipper, and forwarded to defendants, East India

TINDAL, C. J.-This was an action of indebitatus aslading was in- sumpsit for freight. The defendants pleaded three pleas; 1st, non assumpserunt; 2nd, a special plea, shewing that the bills of lading of the goods had been indorsed to Coupland & Duncan, that Coupland & Duncan received agents in Lon- the goods from the plaintiff, (the ship-owner), under those bills of lading, and that the plaintiff debited them in acCo., their fac- count for the freight; 3rd, a special custom at Liverpool, which being negatived by the jury, that plea is out of the

don, who in

dorsed it in

blank to C. &

tors in Liver

pool. On the arrival of the goods at Liverpool, C. & Co. presented the

bill of lading to the plaintiff, and received the goods; the plaintiff debit

case.

To the 2nd plea the plaintiff replied, that the defendants were the consignees of one of the bills of lading and the first indorsees of the rest, and were the owners of all the

ing C. & Co. with the freight. Afterwards C. & Co. became bankrupt without having paid the freight, whereupon the defendants claimed the goods from them, and took possession of them :-Held, on error brought upon the judgment of the Court of Exchequer, that the defendants were not liable to the plaintiff for the unpaid freight; affirming the judgment of the Court below.

(a) See the case reported, antè, vol. 5, p. 235.

1842.

TOBIN

v.

CRAWFORD.

goods; that the defendants indorsed the bills of lading to Exch. Chamber, Coupland & Duncan, without consideration, as their agents only; that the plaintiff, when he delivered the goods to Coupland & Duncan, was ignorant that they were agents only, and had never received the freight. The defendants rejoined, admitting that, at the time of the indorsement and delivery of the bills of lading, they were the owners of the goods, but that they indorsed the bills of lading to Coupland & Duncan as their agents for sale, but without so describing them, and for the purpose of vesting the legal ownership in them, without this, that they the defendants, at the time when the goods were delivered by the plaintiff to Coupland & Duncan, were the owners of the goods in manner and form, &c.

The plaintiff demurred specially. Upon this demurrer the plaintiff had judgment in the Court below.

The cause went to trial upon the issues in fact. And upon the first issue of non assumpserunt, the jury found a special verdict, stating in substance that the defendants were owners of the goods; that they had indorsed the bills of lading to Coupland & Duncan in blank, without consideration, and as their agents; that Coupland & Duncan obtained the goods as indorsees of the bills of lading; that the plaintiff debited them in account for the freight, but did not know that they were agents only; that Coupland & Duncan became bankrupts in about two months; and that the plaintiff had received no freight. Upon this special verdict the Court below has given judgment for the defendants. On the part of the plaintiff, it is now contended, that as Coupland & Duncan were mere agents for the defendants, their receipt of the goods under the bills of lading is in law a receipt by the defendants, and that an implied promise by the defendants to pay the freight arises from that receipt, and that although the plaintiff debited Coupland & Duncan for the freight at first, in ignorance of their being agents, yet that when he discovered that