John Macdonell.

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of England Joint-Stock BanJcing Company, ex parte
Bernard (h), Parker, V.-C, said that they could not be the
company's agents for that purpose. So in Dodgson's Gase{i),
Knight-Bruce, V.-C, said, that " whatever fraud there may
be, if fraud there be, it is charged against the directors, who
cannot be the agents of the body of shareholders to commit
a fraud." Similar expressions were used by Page Wood,
V.-C, in Re Athencewm Assurance Com2ximj {k) ; Romilly,
M.R, in Duranty's Case (I) ; Lord Chelmsford in Re Hull
and London Life Assurance Company (m). In the Western
Bank of Scotlccnd v. Addie (n), decided in 1SG7, Lord Cran-
worth said, "An attentive consideration of the cases has

(y) Mersey Bock Trustees v. Gihhs Broom (1851), G Ex. 314 ; Baylcy v.

(1866), L. R. 1 H. of L. 93. Manchester Ry. Co. (1873), L. 1{. 8

(z) R. V. Great North of England C. P. 148.
Ry. Co. (1846), 9 Q. 15. 315. (/) Orecn\. London General Om-

(a) Whitfirldv. South- Eastern Ry. nibiis Co. (1859), 7 C. B. N. S. 290.
Co. (1858), "E. 11 k E. 115 ; 27 L. J. {g) Retts r. JJc Vitre (1868), L.

Q. B. 229. See also R. v. City oj R. 3 Ch. 429.

London, cited in note to Whitfield v. (h) (1852) 5 Do G. & Sm. 283 ; 21

South- Eastern Ry. Co. L. J. ('h. 468.

(h) Edivards v. Midland Ry. Co. (i) (1849), 3 De G. k Sm. 85.

(1880), L. K. 6 Q. B. D. 287. (k) (1859), John. 451.

(c) Yarlwrough v. Ban/c of Eng- (/) (1858) 26 Beav. 268

land (1812), 16 East. 6. (w) (1858), 2 De (!. .^ J. 275.

(c) Eastern Counties Ry. Co. v. («) L. K. 1 S. & D. 145.

master's liability to tuiud persons. 2G1

convinced nic that the true principle is, that these large cor-
porate bodies, through whose agencies so large a portion of
the business of the country is now carried ou, may be made
responsible for the frauds of those agents to the extent to
which the companies have profited from those frauds ; but
that they cannot be sued as wrong-doers, by imputing to
them the misconduct of those whom they have employed."

In Common Law pleading the fraud of the agent was
treated by a sort of fiction as the fraud of the principal.
Courts of Common Law were therefore more disposed to
entertain the view that a company might be sued for its
servants' or agents' fraud. Courts of Equity were familiar
with the doctrine that a principal, though innocent, might
suffer for the fraud of an agent to the extent to which he was
benefited thereby (o). They were, therefore, disposed to
confine the liability of companies for the fraudulent repre-
sentations of directors to those cases in which the former
were benefited. It is submitted that the words cited above
from the judgment of Willes, J., express the true rule.
Strange though it may seem to attribute malice, fraud, or
an intention of any kind to a corporation, practical exigencies
have required the law to be moulded so as to meet the de-
velopment of joint-stock enterprise. Not finding a remedy
to hand, the Courts have made one (o).

(o) See remarks of Sclborne, L. C, Xurth of England liy. Co. (1846),
in Eouldsu-urth v. Oily of Glasgow 9 Q. B. 314 ; 11. v. Scott (1842), 3
Bank (188U), L. B. 5 Ap. 326 ; Lord Q. 13. 547. Some judges iu modern
Westbury in Conybcnre v. New times have adhered to the old doc-
Brunswick Ry. Co. (1862), 9 H. of L. trine in regard to acts wliich appeared
C. 725 ; Sh- Montague Smith in to imply malice, e.g., Aldersou, B.,
Mackay v. Commercial Bank of Kcv: in Stevens v. Midland Counties By.
Brunswick, L. R. 5 P. C. 411. Co. (1854), 10 Ex. 352. See, how-
It was once doubtful whether any ever, Henderson v. Midland By. Co.
action for trespass lay against a (1871), 20 W. R. 23 ; Edwards v.
corporation, Kyd. 1,223. Intres])ass, Midland By. Co. (1881), L. R. 6 Q.
capias and exigent are the proper B. D. 27 ; Whitfield v. South-
processes. How, it was argued, could Eastern By. Co. (1858), E. B. & E.
they be eiuploved against a corpora- 122 ; Green v. Lomlon General Omni-
tion? Similarly Holt, (A J., laid it hus Co. (1859), 7 C. B. N. S. 290.
down that a corixiratiun was not in- The fact is that the law has been
dictable, 12 Mod. 559. Tliecon- altered, and that various hctions have
rary is now clear ; B v. Great been resorted to in order to conceal


One wlio employs a contractor to execute a work
incurs no liability (except in the cases mentioned
below) for the acts of the contractor, or sub-contractor,
or his servants.

This principle has been at length firmly established. But it
was not at once adopted. There was for a long time a disposi-
tion to extend the liability of persons who set on foot or ordered
the execution of works to the negligent or other tortious acts
of contractors. It was not until after mach discussion that
the doctrine which is now recognised was adopted. Thus it
was supposed that owners of fixed property, as distinguished
from movable chattels, were liable for acts done thereon, even
though not done by their servants. It was thought to be
highly convenient that the owner of a house or other real
property should be responsible for all injuries done in the
course of work on his property or for his benefit (^9). Persons
who employed contractors were in some of the early cases made
responsible for the acts of the latter ; bailors answered for
bailees. Now, however, it is well settled, subject to the excep-
tions hereafter stated, that an employer is not answerable for
the conduct of a contractor, a sub-contractor, and their ser-
vants ; and the only difficulty is in distinguishing in practice
contractors from servants.

The defendants in Pcachey v. Roicland(q), entered with two

the change. As an instance of such (]>) Bush v. Steinman (1799), 1

fictions, the following may be citcil : ]>. & P. 404. (A. who had a

"A railroad coiiioration is to be re- liouse by the wayside, engaged 1*>. to

gardcd as constructively present in repair it. B. contracted with C,

all acts jierfornied by its agents and and C with D. to iurnish the

servants within the range of the ordi- materials. Tiie servant of D. placed

nary emiiloymcnts. " Wharton on a (juantity of lime on the road,

^Negligence, H. 158. It is not every wliereby jiiaintifr was injured. A.

fraud of a servant or agent for whieii held answerable on the ground

a master oi- principal will be answt'r- acrordiiig to Eyre, C. J., stated above,

able. See 6'//rs V. Norirmi ; Jiiirncs This case was (juestioncd in 6'^?/-

V. Pcnndl (1849), 2 H. of L. 497; jWdx. KHwlh (1854), 9 E.x. 702,

Colnnan v. Jlkhcs (1855), 16 C". V>. and di.sajipioved of in manv other

104 ; 1 Jur. N. S. 376 ; 24 L. J. C. cases.

P. 125. Almost all the authorities (7) (1853), 13 C. 15. 182 ; 22 L. .T.

arc collected in the argument in C. 1'. 81; 17 Jur. 764. No notice is

Jloiilds-uorthx.City of ClUisfjuw Ilinik taken in the judgment of the fact

(1880), L. It. 5 Ap. 317. that one of the defendants saw the

master's liability to TIIIKl) PERSONS. 203

contractors into a contract, by ^vliicli they agreed to construct
a drain in the road in connexion with the houses of tlie
defencUints. The contractors employed A. to excavate and
fill in the work. A. did this negligently ; and the plaintiff
was thereby injured. Yet the defendants were not liable ;
A. not being the servant of the defendants, and the con-
tractors having been employed by them to do a lawful work.
So, too, in the leading case of Meedie v. The London and
North- Wedei-ii Raihuay Gomixiny {r). The defendants en-
gaged a contractor to construct a portion of their railway, but
reserved the right to the company to dismiss any incompetent
workmen. Through the negligence of the workmen of the
contractor, a stone fell upon the plaintiff's husband, who was
passing under a bridge, and killed him. The company were
exonerated from liability. In another case, Ilapson v.
Ciibitt (s), the defendant, a builder, was employed by the
committee of a club to do certain work, including the
putting up of gas-fittings at a club-house. He made a sub-
improper maniu-r iu wliich the work a bullock from SmitliKeld. The
was being done. drover employed a boy, and, Ijy the

(»•) (1849), i Ex. 244. See also negligence of the latter, tlie plain-
Knifjht V. Fox (1850), 5 Ex. 721. titf's property was injured.) Ovcrtwb
(A. contracted with a railway com- v. Freeman (1852), 11 C. B. 867.
pany to complete a portion of their (Defendants contracted with parish
line' B. contracted with A. to erect officers to pave certain streets, and
a bridge. B. had in his service C, entered into a sub-contract with W.,
who acted as general servant of B., who agreed to lay the curb-stone
and as his surveyor. B. entered into under the superintendence of the sui -
a contract with C, by which the veyor of the local commissioners,
latter was to supply scafiblding for The stones were supplied by the de-
the bridge, the defendant, B., to pro- fendants, and brouglit to the spot by
vide the requisite materials and tlicm. Some of them wen; placed in
lights. One of the poles of the tlie pathway by workmen eniployed
scaffolding improperly projected on and paid by W. I'laintill injured
the footway. In consequence of this, by falling over the stones ; the de-
and owing to the want of sufficient fendants not hable.) Cuthbcrtson v.
light, D. was injured. No action Parsons (1852), 12 0. B. 304 ; Steel
by D. lay against B. The circum- v. Soulh-Ecistern Ry. Co. (1855), 16
stance that 0. was the general ser- C. B. 550; Broicn v. Accriiujton
vant of B. did not the less make him Cotton Co. (1865), 3 H. & C. 511 ;
a contractor in regard to the scaffold- Taylor v. Greenhaigh (1874), L. R.
ing.) 9 Q. B, 487 ; 43 L. J. Q. B. 168. For

(s) (1842), 9 M. & AV. 710. a clear statement of the law, see
Milliganw. TFcdijc (ISiO), 12 A. & Wigclow, C.,h, in Sproid v. Hcmviing-
E. 737. (The defendant, a butcher, waij, 14 Pick. Mass. 1.
employed a licensed drover to drive


contract with a gasfitter to execute this part of the work.
An explosion of gas took pLace by reason of the carelessness
of the latter, and the plaintiff was injured. Yet no action
lay against the defendant.

A person who employs a contractor to do work
which is necessarily unlawful is liable for the acts of
the contractor.

In such a case the contractor's acts are really his em-
ployer's. The latter has done just what he was ordered to
do, and that Avhich was ordei'ed was itself wrong. A gas
company, for example, entered into a contract with W., to
open trenches and lay their mains in the streets of Sheffield.
W. employed men to do the work. They left a heap of work
and stones in such a position that the plaintiff fell over
them and was injured. The company were responsible
inasmuch as they had no right to make excavations in the
streets (x). Distinguishing the case from Peachey v. Roiv-
land (y), Overton v. Freeman (s), and other cases in which
employers of contractors were exonerated, Lord Campbell
observed, " In these cases nothing was ordered except what
the person giving the order had a right to order, and the
contract was to do what was legal, and the employer was held
properly not liable for what the contractor did negligently,
the relation of master and servant not existing. But here
the defendants employ a contractor to do that which was
unlawful, and an act done in consequence of sucli emi^loyment
is tiie cause of the injury for which the action is brought. It
is simply the case of persons employing another to do an
unlawful act, and a damage to the plaintiff from the doing of
such unlawful act." Sometimes the distinction is put in

(x) Ellis V. Sheffidd Gas Co. J. C. P. 81 ; 17 Jur. 764.
(1853), 23 J.. J. N. S. Q. B. 42. {z) See note (a).

(2/) (1853), 13 (J. B. 182 ; 22 L.

master's liability to third persons. 205

another way. It is said that, when tlio act whicli was
ordered caused the injury, the person Avho gave the order is
liable. When the cause of action is something- collateral,
done in the course of the work, the responsibility rests with
the contractor. If the contractor have done in an improper
manner that which might well have been done in a proper
manner, there is no redress against the person who set the
contractor in motion. The owner of a house employed a builder
to take down and reconstruct the front. The contractor removed
a brest-summer inserted in a party-wall, without taking proper
care to shore up the adjoining house. The emploj'^er was not
bound to make good the damages. He had a right to suppose
that the builder would take ordinary precautions (ct).

A person who employs a contractor to execute work
is liable for the nonperformance of duties which the
former is bound at Common Law or by Statute to fulfil.

This is scarcely distinguishable from the last class of cases.
At Common Law there is a duty incumbent upon persons
not to have their house or premises in such a state as
to be a nuisance or to be dangerous to passers by, and they
will not be heard to say that they entrusted the performance
of their duty to an independent contractor, and that they are
not answerable for what has befallen travellers or passers by.
This is illustrated by Pidxtrd v. Smith (&). A passenger by
a railway train fell into the coal-cellar of a refreshment room
at a railway station ; the servants of a coal merchant
had been putting coals into the cellar and had negli-
gently left the trap-door open and unguarded. The lessee
and occupant of the refreshment room was held liable to the

(a) Butler v. Hunter (1862), 7 H. Co. (1872), 9 S. L. R. 254. Pick-
Si N. 826 ; 31 L. J. Ex. 214 ; Hole v. ard v. Smith is sometimes iiuoted as
Sittinghonrne Ry. Co., 2 E. & B. 767. if reaffirming the principle stated in

{h) (1861), 10 C. B. K S. 470; Bush v. Stcinman. It; is submitted

4^ L. T. N. S. 470 ; and compare tliat tlie principle of the former in no

Nisbett V. Dixon (1852), 14 D. way peculiarly refers to real property
973, and Grant v. West Calder Oil


plaintiff on the ground that the eraploymeut of an indepen-
dent contractor did not absolve him from the duty of taking
reasonable precautions to prevent mischief from the opening of
the trap-door. The duty was incumbent upon the lessee,
and he was liable for its non-fulfilment. For similar reasons,
one who is bound by statute to perform certain duties cannot
shield himself from responsibility by employing a competent
contractor. His duty is to do the particular thing which the
Legislature ordered — not merely to do his best to perform it.
A company was authorised by a private Act of Parliament to
construct a bridge which opened, and it w\as bound by the
Act not to detain vessels navigating the river longer than
was required to allow carriages, &c., to cross. A vessel having
been delayed for a longer period owing to a defect in the
construction of the bridge, it was held to be no defence to
an action against the company that it had employed a
competent contractor (c).

A person who employs a contractor to do work
which is lawful, but which is dangerous, and is likely
in the natural com-se of things to cause injury, is
liable, if injuries result therefrom.

This principle — which is really only an instance of the
last — may be collected from Bower v. Peate ((/), Tarry v.

(c) Hole V. Sittinqhournc Ry. Co. (d) (1876), L. 1\. 1 (,). B. L). 321 ; •!')
(1861), 6 H. & N. 488 ; 30 L. J. Ex. L. .1. Q. J5. 446. Tlie rosemblaiice
81. This is stated in .some judg- between this case and Biillcr v.
ments to be in ])iinciple the same as Hunter — which does not seem to
Ellis V. Slicjjldd Gas Co., idrcady liave been referred to in the argii-
nientioned, but in the hitter the con- nient — is close. The iinal gronnd
tractor was emjiloyed to do wliat upon wliicli tlie Court pul tiieir de-
must liave been a nuisance. See also cision in JUnrcrw I'catc was, " that a
Oray \. J'lillr/i, (ISdi), .'» ]}. & E. man who orders a work to be executed,
971 ; 32 L. J. Q. 15. 169 ; 34 L. J. from which, in the natural course of
Q. B. 265. (Defendants being em- things, injurious conseciuences 1o
])owered under a Local Manage- his neighbour must be expected to
inent Act to make a drain, employed arise, unle.'is means are ado])led by
a contractor, who negligently exe- which such consojuences may be
cuted the work ; held liable.) ////"?/(« j)reventcd, is bound to .see to the
V. IFchstcr ilS67), 36 L. J. Q. 15. 166 ; doing of that which is necessary to
Wood on Master and Servant, 626. i)rcvent the mischief, and cannot



Asldon (e), Angus v. Dalton (/). 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 under-
took 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 Avere insufficient ;
it was injured ; and the defendant was held liable. These
cases need not be taken to re-affirra the doctrine stated in
Bush V. Steinman ig). 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 liis responsibility
by employing someone else — whether
it be the contractor employed to do
the work from which tlie danger
arises, or some independent person —
to do what is necessary to ]irevent the
act he has ordered to be done from
becoming wrongful. There is an
obvious difl'erence between commit-
ting 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 preven-
tive measures are adopted." All this
seems applicable to Butler v. Hunter.
See also Fcrcival v. Hughes (1882),
L. R. 9 Q. B. D. 441 ; 51 L. J. Q. B.
338 ; 46 L. T. N. S. 677. (De-
fendant, owner of a house adjoining
to the liousc of plaintilf, employed a
compietcnt architect and contractor
to rebuild former ; the workmen of
the contractor negligent!}' and with-
out the knowledge of the defendant,
cut into a party wall to fix a stair-

case, whereby the plaintiffs house
fell ; defendant liable, though the
contractors were competent, and
though the fixing of the staircase
was not in itself a hazardous opera-
tion. Holker, L. J., dissented).
The majority of the judges of the
Court of Appeal appear to ])ut 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 tlie staircase was commenced.

(e) (1876), L. K. 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 detV-ndant employed
an experienced gas-fitter, through
whose careles-sness the lamp was
loosened ; held that the defendant
was liable.)

(/) (1877), L. R. 3Q. B. D. 85 ; 4
Q. B. D. 162 ; 6 Ap. 746.

((/) See note, p. 262.



A person wlio employs a contractor to execute
work is liable for the ^vi'ongfiil acts of the contractor if
the former controls and interferes with the execution
of the work.

The case most frequently cited in iUustration of this pro-
position is Burgess v. Gray {Jl), 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 plaintifi' 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 re-
sponsible 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 bo responsible for the acts of the

(/() (1845), 1 C. B. 578. See also
Blake v. Thirst (T863), 2 H. & C.
20 ; 32 L. J. Ex. 188. (Defend-
ant, a builder, contracted with local
commissioners to make a sewer, and
underlet to N. the excavation and
tlie brickwork at a ii.xed price per
yard ; N. employed his own men,
but defendant had the right of dis-
missing them. In consiM]uen(o of
N.'s negligence to provide a.sullicient
light, plaintiff fell into an unfenced
track ; held that defendant was
liable. Ikit see remarks of ]\Iartin.
15.) ; Slcjthcii V. 2'hurso rolkc Cum-
viissionrrs (187t)), 3 1?. 535 ; i>adlcr
V. Henlock (1855), 4 E. k K. 570 ;
3 C. L. K. 760 ; 1 .Jur. N. S. 677 ;
24 L. J. Q. B. 138.

(i) See p. 59 ; also Shiclls v. Kdin-
buvfjh and Glasqun; A'//. Co. (1856),
18 F. 1199. (hcfcmlants provided
cart, a contractor tli.- iiorse and di'iver ;
defendants not liable.) In auotlier
Scotch caBC — Stephen v. Thurso

Police Oominissioners {187 6), 31a. at p.
542 — Lord Giflbrd made the follow-
ing remarks: "The test always is,
' Had the superior personal control or
power over the acting or mode of
acting of the subordinate ? ' 1 use the
expression ' ])ersunal control,' because
1 think tliat this is always the turn-
ing point in such cases. Was there
a control or direction of the person,
in opposition to a mere right to object
to the (]uality or description of the
work done ? . . It is sometimes said
that the (piestiou is, whether the
relation between the immediate
wrong-tloer and the defender is that
of master and .servant, or employer
and contractor. But these words are
a litth ambiguous ; and, though
they i"iiy indicate generally the rule
ol law, tlic real (piestion always is, I
think, who bad the control and
direction of the person who did the
wron;; i "

master's liability to third persons. 2G9

postilions, who were the servants of the owner. But havin"-
interfered with them, he was held responsible (Jc).

Difference of opinion has arisen as to the precise position
of drivers of cabs who are remunerated Ijy their receipts
over a certain fixed sum. The question whether they are
the servants of the owners of cabs, or merely bailees, has
ah-eady been dealt with. The point was first considered in
Morley v. Dunsco7nbe (l), and the Court there thought that
the driver was a servant remunerated in a peculiar way.
This view was also taken in Poivles v. Hider (m), where it
was held that having regard to the 1 & 2 Will. IV., c. 22,
s. 20, and C & 7 Vict. c. 86, ss. 23, 24, 27 and 28, the
driver was the servant of the owner, and that the latter
Avas 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 Poivles 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 Balyell v. Tyrer (j)), 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) McLatcghlin y. Fryo?- (18i2), 4 plaintiff; held that the warehouse-

M. & G. 48; Smith v. Lamrcnce man was liable.) This case has often

(18281, 2 M. & R. 1 ; Brady v. Giles been questioned ; Murplv:y v. Ca-

(1835), 1 Mood. & Ro. 494. The ralU (18i)4), 3 II. & C. 462.
last case cannot be regarded as a sub- (/) (1848), 11 L. T. 199.

sistinif authority. '^qh^Xso llandlcson (m) (1856), 6 E. & B. 207.

V. Murray (183S), 8 A. k E. 109. (A {n) (1872-74), L. R. 7 C. V. 272 ;

■warehouseman employed a master 26 L. T. 476 ; 20 W. II. 672 ; 41 L.

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