The Lord Ordinary (on 31st October) refused the application, and issued the following "Note.-The Lord Ordinary does not consider the suspender precluded from making any application to the Court which may be competent with reference to diligence against his person, in consequence of his actual state of health; but that must proceed on the full right of the charger to do diligence against his effects. "The prayer of the note of suspension is expressed in a very peculiar manner, and the documents with regard to the state of the suspender's health are dated on the 19th of September: they do not therefore prove what his present state of health is." The complainer reclaimed. At advising on 14th December 1849 Inglis for complainer-The ground of the suspension and interdict is danger to the complainer's life. But we don't object to diligence going out against his property. It is said that he can obtain liberation upon a bill of health. But to convey him to prison will kill him. Lord Jeffrey.-Can you refer to any decision?] No; but if the Court have power to liberate from prison on the ground of danger to health, there is power, on the same ground, to prevent incarceration. Lord Advocate for respondents-We don't want to incarcerate. What we want is, that the messenger shall be enabled to return an execution of his caption by carrying it into effect with such precautions as the Court may direct. The messenger may enter the room, touch the debtor, display his blazon, and then retire. All this can be done so as to cause no alarm or agitation. And this is necessary for the purpose of rendering the debtor bankrupt.. Inglis in reply-This is mere pretence, if the execution of a caption, in the way proposed, be insufficient for notour bankruptcy-and so it is said to be by Professor Bell, 2 Com. 171. If the Court have any doubt upon the question of fact, whether the execution of a caption, in the way necessary to create notour bankruptcy, will be attended with danger to life, let that fact be inquired into. See also what Lord Stair says as to the way in which a caption ought to be executed 4 Stair 47. 14. Has any pressing necessity been shewn for rendering the complainer bankrupt in this manner? Again and again, we have offered a disposition omnium bonorum. Besides, he is liable to sequestration, and bankruptcy may be produced in that way. Lord Jeffrey-[To the counsel for the respondents].-You must know what you mean to do. State that, and submit it to medical persons, who will report to us, and then the question will be at an end. Case delayed. The case being in the roll to-day Inglis, for complainer, offered, by minute, to restrict the prayer of the application as follows: "To interdict, prohibit, and discharge the respondents from executing, or causing to be executed, against the complainer, any caption, or any fiat or warrant of imprisonment, until such time as it shall appear, from proper medical certificates, that his health shall not be endangered by the use of such diligence; or to do otherwise," &c. Dr. Duncan appeared at the bar, and deponed upon oath, that, since the date of the certificate formerly given, he had attended the complainer several times, and had seen him within the last few days; that the complainer was much worse, and in a state of extreme danger; and that execution of the caption in the mar ner proposed by the respondents, by touching the debt and displaying the blazon, might, in the complainer actual state of illness and nervous prostration, b dangerous to his life. The Court pronounced the following interlocutor:"In respect of the minute No. 22, and deposition of Jam Duncan, M.D., No. 2, alter the interlocutor reclaimed again and remit to the Lord Ordinary on the Bills to pass the note suspension, and grant interdict, agreeably to the restricted pray thereof set forth in the said minute, and to refuse the sam quoad ultra," Lord Ordinary, Murray-Act. Inglis; Hope, Oliphant, an Mackay, W.S. Agents.-Alt. Lord Advocate (Rutherfurd, Ba chanan; John Leishman, W.S. Agent.-W. Clerk.-(F.H.) 9th March 1850. SECOND DIVISION. No. 150. THOMAS SAWERS, Petitioner. Parent and Child-Pupil-Curator Bonis. The Court refused to grant special powers to a-ther, as administrator-in-law of his pupil child, to carry through a sale of heritage belonging to the child; bu allowed the application to be changed into a prayer fat the appointment of a curator bonis in common form. Act. Shand; James A. Robertson, S.S.C. Agent.-T. Clerk(F.H) No. 151. 9th March 1850. SECOND DIVISION... JOHN M'DOUGALL, Petitioner. Entail Amendment Act (1848)-Construction-The 36th se tion of the act provides, that in any proceedings under it, intimation shall be requisite except to those heirs whose conse would be necessary to a disentail. In an application et the instance of an heir of entail, for leave to charge improvements upon the entailed estate, no name was inserted in the prayer, the purpose of intimation, except that of the petitioner's infant born subsequent to 1st August 1848, and whose event el the full age of twenty five years would have been suficient, under the act, to enable the petitioner to disentail the landi The Court held this intimation to be insufficient, in respect the next heir's pupillarity, and appointed intimation to the next three heirs in common form. son, This was an application under the Entail Amend ment Act, 11 and 12 Vict. c. 36, for leave to charge improvements against an entailed estate. The only name mentioned in the prayer of the petition, for the purpose of intimation, was that of the petitioner's infant son, born subsequent to 1st August 1848, and whore consent alone, if he were of the full age of twenty-fi years, would be sufficient, under the statute, to enable the petitioner to execute a deed of disentail. The 36th section of the act provides"That it shall not be necessary, in any proceedings under act, to call as parties thereto any heirs of entail, other than thos whose consent would be required by the heir in possession the time, to an instrument of disentail; and no heir of entst other than those whose consent would be required as aforesa shall be entitled to appear or to be heard in such proceedings The Court, after consulting the other Division, o dered the names of three heirs next in succession the petitioner to be inserted in the prayer of the peti tion, and intimation to be made to them accordingly; a tutor ad litem being appointed to the petitioner's fant son.. Act. Boyle; Adam and Kirk, W.S. Agents Clerk.) 9th March 1850. SECOND DIVISION. No. 152.-JAMES GRAHAM, Pursuer, v. THE NORTH bought 550 bank shares which stood in the name of B. The bank advanced the price, for which A granted two bills to the bank, leaving the shares with them in security. He then raised an action against the bank alone, to reduce, as one transaction, both the transfer of the 550 shares in his favour, and the two bills, on the ground of fraud. The summons set forth that the pursuer had been induced to enter into the transaction by the fraudulent misrepresentation of the defenders; that the sale had taken place when the shares held a fictitions value, caused by the fraudulent misrepresentations and traffic of the bank and its confederates in the market, for the purpose of unduly enhancing the value of their stock; that B. the seller of the 550 shares, was one of the confederates; that the shares truly belonged to the bank; and that the bank's object in bringing about the transaction was the substitution of the pursuer as a responsible party in place of B, who was not able to meet his engagements—Held, 1. That it was not necessary to make B a party to the reduction, although he was the grunter of the transfer. 2. That the summons contained fficiently relevant statements for inquiry, although there were no petitary conclusions. This was a reduction of a transfer of 550 shares of he defenders' stock, bought by the pursuer, which stood n the names of Green, and certain other parties; and also of two bills granted by the pursuer in the defenlers' favour, and upon which they had advanced the Amount of consideration for the above transfer. The grounds of reduction were, inter alia, the follow 02: The said bills and transfer or transfers were obtained through circumvention and misrepresentation on the part of the defenders, and without any due or adequate consideration, and with A View to defraud the pursuer." The summons then stated, that although the defenders' company was established merely for banking purposes, they had entered largely into other dealings, in violaon of their contract; that they trafficked largely in heir own shares, and other stocks, giving out erroneous statements and balance-sheets, to create an impression that their business had been very prosperous, whereas, in point of fact, they had suffered heavy losses. The summons also charged the directors with fraud and malversation, with a view to their own profit. It farMer stated, that In or about the commencement of the year 1847, the defenders, false representations, and by accommodating a variety of parU-s with funds, occasioned extensive dealings in their own shares, and contrived to raise them to a large and fictitious value. They, with this view, advanced money on bills to a number of parties, enable them to deal in the shares of the bank, and also issued ares to them, taking bills for the price thereof in place of cash. They thus occasioned a belief that numerous bona fule transactions were made in their stock, whereas the shares continued to be Leld by the defenders themselves, as a pretended security for the advances made by them as aforesaid." It was farther stated, that George Green was one of the parties with whom the defenders thus transacted; and that, in the beginning of 1847, they “proposed to the said George Green, who was largely indebted to them, and unable to meet his engagements to them, as well as various other parties similarly situated, that, in order to bring the bank, without loss, out of the transaction with them, and also to continue the apparent demand for the shares of the bank, and so to raise the price still farther, and induce other parties to purchase, they should continue their traffickings in the said shares, which were then selling at the fictitious price of £8 per share, to which they had been raised by the unwarrantable means already adverted to and effect a sale at an increased price to a responsible party; and that, on their doing so, the defenders would discharge the debts of the said parties, and relieve them of their obligations." Farther, the summons stated "At this time the defenders, following out the arrangement so made with the said George Green, and the other parties referred to, and their manager and directors, wrongously and fraudulently prevailed on the pursuer to agree to purchase certain shares of their undertaking, engaging to supply him with the requisite funds. Accordingly, the pursuer gave instructions to a broker for a certain number of shares being purchased on his behalf, and thereafter, in or about the month of February 1847, 550 shares were purchased for the pursuer at the increased price of upwards of £11, which shares, it has now been ascertained, were the shares which the said George Green, and other parties similarly situated, had, by concert with the defenders, agreed to sell and dispose of in the way and manner, and for the purpose already adverted to. The pursuer having received intimation of the purchase of the said shares, called at the defenders' office, and signed what he understood to be a transfer or transfers, in his favour, of the said 550 shares, expecting that money would be advanced on a deposit of the said shares, according to arrangement; but he was required to grant bijis for the amount. The pursuer thereupon subscribed certain bills in favour of the defenders. These bills the defenders pretended to discount, but in reality they got them discounted with other banks. The whole transaction was thus arranged and concluded by the defenders, in order to substitute the pursuer, as holder of the said shares, in place of the former ostensible but pretended owners, and to obtain the use of his bills, on which they might raise funds for their own purposes." Lastly, the narrative of the summons concluded as follows: "The price at which the pursuer was induced to purchase the said shares was greatly beyond the value of the shares at the time, and was entirely fictitious, and was created by the aforesaid false and fraudulent statements, and by the misrepresentations and unwarrantable transactions of the defenders, or of the manager or directors nominated and appointed by them, and for whom they were and are responsible. The pursuer at the time understood and believed that the aforesaid 550 shares, transferred to him as aforesaid, were the bona fide property of the said George Green, and the other parties in whose names they stood, and that the transaction was a fair and bona fide transaction between them and him, and that the defenders had no interest therein; but he subsequently ascertained that the who e transaction was arranged, concocted, and completed by the d. fenders for the purposes aforesaid, and of bringing themselves without loss out of the transaction with the said parties, by sulstituting a party in their room) and stead who should be constdered more respousible, and better able to meet the engagements and obligations attaching to the said shares. By the fraudulent misrepresentations or fraudulent concealment of the deten ders, or of Andrew Tennent, their managing director, regarding the nature of the bank business, and the condition of its affairs, and their transactions with the said George Green, and the other holders of the stock, the pursuer, on or about the month of February 1847, was induced to purchase the said 550 shares, or thereby, of the stock of the said bank, and to accept transfers thereto, and to grant to the defenders, for the price thereof, certain bills, in renewal of which, in part, the bills called for were afterwards granted. In these circumstances, the foresaid bills, transfer, and other writings called for, are null and void, or at least reducible at the pursuer's instance." The summons then concluded for reduction of the bills and transfer; but it did not contain any declaratory or petitory conclusions. The defender, inter alia, pleaded in limine as follows:All parties interested are not called. The granters of the alleged transfer or transfers are the proper defenders in an action of reduction thereof: At all events they are materially interested; and the action cannot proceed without their being made parties. The Lord Ordinary made great avizandum, in respect of the dependence of a relative suspension before the Inner-House. Deas, for the defenders, argued This is a summons of reduction of certain transfers, and yet the parties who granted them are not called. But it is impossible to reduce în their absence; and if the transfers cannot be reduced, how can the bills? Again, there are no petitory or declaratory conclusions There may be cases where such are not necessary; but this, certainly, is not such a case. On the ground of such a reduction as this, the pursuer certainly cannot keep us out of payment under our ordinary action; the only remedy for him against our action is an action of reduction and repetition, and he is not entitled, on anything here stated, to keep us out of our funds under an action without petitory conclusions. Let him bring a proper action of reduction if he chooses, but, in the meantime, the company are entitled to payment of their liquid obligations. The pursuer answered-The summons is not libelled as a case of fraud committed by Green and the other holders, but by the defenders. Green may be innocent, but it does not follow that the pursuer is a partner of the company. It is indeed urged, that the par ties who made the transfers should have been called for their interest. But, in point of fact, the defenders have all the papers in their hands, and they have never divulged who the parties are that made the transfers. There is no necessity for petitory conclusions. If we succeed in this action, we succeed in our defences to the ordinary action, which has been raised against us on the bills. This is the sole object of the action of reduction; and we may then, if we choose, institute an action to recover. At advising on 16th February, Lord Justice-Clerk. I do not think it is necessary to call these other parties as defenders. The defence, that all parties are not called, is in general stated for one of two objects-First, that the other parties may have other defences which those called do not know of-which cannot be said here. And again, where the summons fixes on the party who is called a greater responsibility than he is really liable in. Now, that objection also cannot be stated here. The substance of the averment is, that Green and the others were not the real holders of the shares, and the bank says to them, "If you will act as the real owners, we will try to get a responsible person to take them in your stead;" and that, accordingly, they got Graham so to take them, thinking he was buying in the market, and that he was thus deceived as to their value. Now, in this point of view, I don't think it is necessary to call Green and the other parties who made the transfers. In any point of view, it is a very special case; but the reduction, at any rate, treats the whole matter as a transaction with the bank, Lords Cockburn and Murray* concurred. Defenders' first plea repelled. The defender then pleaded, that the summons was irrelevant, vague, and contradictory. The case having been called this day Mackenzie for pursuer-We aver that the transaction which we seek to set aside was induced by the misrepresentations of the directors. We were made to purchase shares at a time when these shares were valueless. The shares truly belonged, not to Green, but to the bank; and the bank's object in inducing us to enter into the transaction was to get repayment of the money they had advanced to Green. We have set forth a relevant case *Lord Murray had been called in to make a quorum in the absence of Lords Medwyn and Moncreiff. for inquiry.-Brown, 8th March 1884; 12 S. D. 53 In this question of relevancy, it must be assumed thi the shares were truly Green's. Deas for defenders-The summons is irrelevant. The is no statement that any party, on behalf of the bani represented to Graham that the bank was prosperon and had not suffered losses. It is not said that the pm chase was induced by any such misrepresentation. T summons avers misrepresentation, but it does not sta what these misrepresentations were. It is not said the the misrepresentations, in consequence of which th market price was enhanced, were made with a viewi the pursuer's purchase. It is not said in the suminen that the shares are the property of the bank, but merel of parties who were debtors to the bank. The pursuer was not called on to reply. Lord Cockburn.-If the averments of the summons were verted into a special verdict, could there be any doubt that pursuer would be entitled to the reduction he seeks? Lord Justice-Clerk.-I am of the same opinion. It is alleged that the bills were obtained by fraud for the purpose of obtain ing relief for the bank. It is said that the whole transaction was concocted for a fraudulent purpose. If this summons a special verdict, can there be any doubt that the pursuer ma succeed? No. 153. MRS. ANN RICHMOND or M'LEAN, Pursa, v. RUSSELL, MACNEE and Co., and others, Defenders Principal and Agent-Assythment-Liability-ReparationDamages-A, the proprietor of a tenement, having contracted B to execute the whole of certain alterations thereon, Bentl into a sub-contract with C to perform the plaster-work. Charing laid down a heap of lime in the public road, a person in charge a public vehicle drove against the heap, and was killed. In an action of assythment against A, B and C, jointly and severally the jury having found for the pursuer, reserving the question of the liability of A and B-Held that C alone was liable in damaga and A and B assoilzied. The defenders, Russell, Macnee and Company, with the view of converting a tenement belonging to them in Princes Street, Edinburgh, into a warehouse, for the purposes of their business as coach-builders, tered into a contract with the defenders, Gilfillan and Jackson, joiners, by which the latter bound themselves to make the alterations and additions required, and to perform the whole work, including the mason and plaster-work. Gilfillan and Jackson entered into sub-contract with Austin, to do the mason work, and into another with the defender John Tait, plasterer, for the execution of the plaster-work requisite. By the Edinburgh Police Act, 7 Will. IV. c. 32, is provided, § 16 "That where any house shall be building or repairing, or other operations of the like kind carrying on, or where stone, lime, sand, wood, or other materials, shall be deposited, or any ene tion shall be formed in any of the said streets, lanes, passage squares, or other public places within the said bounds of the police establishment of Edinburgh, comprehending Princes Street, the openings, foundations, or grounds adjoining, and the deposits or erections, shall be fenced in, so that the inhabitants may run no risk of injury from the same, and shall at their own expense be fenced by those making the same, or causing the me to be made; and, in like manner, where any opening shall made in any of the streets, lanes, passages, squares, or pubplaces within the said bounds, for the purpose of digging ndations for building, for paving the streets, for digging els, drains, laying pipes, or any other purposes, or in case y such erections or deposits shall be made, the persons or dy corporate making, or causing to be made, such openings, andations, or such deposits or erections, and the persons emayed or concerned therein, shall, at their own expense, cause efficient rail or fence to be put round such openings, foundaons, deposits or erections, and shall, around and on the outside such enclosure, provide a footway for passengers, provided e foot-pavement or path is in any degree obstructed, fenced, d railed off toward the causeway or street, to the breadth of least four feet, which fence or railing shall be of sufficient rengh to protect passengers from injury from horses, beasts of thien, carts, carriages, or other conveyances; and shall also ue lamps or lights to be affixed at or near such openings, Landations, deposits or erections, to be kept burning every night m sunset to sunrise, where they shall remain." Austin applied for, and obtained, a warrant from the iving board to enclose part of street opposite No. G Princes Street, for alterations on premises." Under is warrant, a portion of the street, equal in length to front of the tenement, was enclosed, and duly lighted night. At the end and outside of this enclosure Tait id down a heap of lime, which was neither enclosed r lighted. The pursuer's late husband, while driving public vehicle along Princes Street after dark, ran gainst the lime, was thrown to the ground by the bolence of the concussion, and died in consequence. His widow brought the present action of assythment, ncluding against all the defenders jointly and sevelly for damages. The case went to trial on three separate issues, one irected against each of the defenders, as follows, only. arying the name: "I being admitted that the defenders, Messrs. Russell, Macnee 1 Company, were, in January 1848, the proprietors of the ement No. 106 Princes Street, Edinburgh: "Whether, on or about the 17th day of January 1848, the ursuer's late husband, Alexander M'Lean, received, in Princes treet aforesaid, injuries in his person which caused his death, consequence of the fault or negligence of the defenders; the i Russell, Macnee and Company, or of any person or persons - whom the said defenders are responsible, to the loss, injury, at damage of the pursuer. Damages laid at £500." The jury found for the pursuer, damages £50, "rerving for the decision of the Court the points which ive been raised as to the liability of the defenders ssell and Macnee, and Gilfillan and Jackson." On the motion to apply the verdict— Neaves for pursuer-There is no dispute as to the *ading facts. I maintain that all the defenders are able. Russell and Macnee are liable as proprietors the tenement with regard to which the work was Done, and employers of the two other defenders. The general rule is, that the employer is liable for the party ployed. Here, the employers remained in possession ct the premises, and the whole employment was within heir observation, and under their control. It was for hem to see that the work was properly carried on-that e lime was lighted and enclosed. Then, if Russell and Macnee are liable as employers, so also are Gilfilan and Jackson :-Bush v. Steinman, 1 Bos. and Pul. 4. Mack v. Allan, 17th Feb. 1832. Smith v. Mill, 2 Dow. 390. Chapman v. Parnell, 25th Feb. 1825. Sy v. Edgley, 6 Esp. 6. Ranken v. Dickson, 19th March 1847. Matthew, 3 Camp. 402. Binnie v. Parlane, 28th June 1825. Deas for Gilfillan and Jackson-Under the police act, it was not we who were bound to enclose and light this lime. There is no proof that we ever even saw it ; no leave was asked of us to put it down. There was not even any necessary appropriation of the lime in question to this particular work. Tait might have sold it or applied it to another purpose, if he had chosen. Thus, the whole case against us rests on the simple fact, that we are the principal contractors for the work. But the whole ground of liability, as put in issue, is fault or negligence. To make us liable, there must be a special culpability on our part; and there is none such here. The principle on which a master is liable for his servant is, that it is his fault if the servant does wrong; he can dismiss the servant at once for disobedience. But a sub-contractor does not stand to his principal in the relation of a servant-Western v. Tailors of Potterrow, 10th July 1839; F. C. Rapson v. Cubitt, 9 Mees. and Wels. 710. Aitchison v. Magistrates of Glasgow, 4th May 1825; House of Lords. Henderson v. Stewart, 23d June 1818; Hume, p. 522. Inglis for Russell and Macnee-The pursuer seems to argue for our liability-1st, on the ground that, because we were making a certain use of our property, the accident took place in consequence of it; and, 2d, on the principle, that, in a certain class of cases, the employer is liable for the employee. Now, I admit that a proprietor is not entitled to use his property so as to do harm to others, or expose them to any risk. But, here, where a party undertook to take the whole work off our hands, it is clear that we cannot be liable, unless the fact is brought home to the knowledge of us as employers, that he, in executing the contract, did so in an unlawful manner. With the sub-contractor, of course, we could not interfere in any way. These considerations take the case out of all the authorities quoted. But the lime was not on our premises, nor even on that part of the street which the contractors were entitled to occupy under the warrant of the paving board. We never gave authority to any one to lay it there. No one had any authority to use more than the portion of the street opposite the tenement. If the contractors transgress this authority-still more, if they do not transgress, but their sub-contractor, though bound to keep within proper limits, does not do so are we to be liable? There is no evidence to shew how long the lime had been there. Suppose it had been deposited a quarter of an hour before the accident, could we have been made liable?-Linwood v. Hathorn, 14th May 1817, F.C.; 19th March 1821, House of Lords. This decision shews that the rule of liability on account of property is limited; the mandate by the proprietor to do certain work is held to be a mandate to perform the work legally. So also in the case of landlord and tenant.-Ranken, ut supra. This case, therefore, is clearly out of the principle of liability, either on the ground of property, or as between master and servant. The English cases go on principles which we do not recognize; and Bush v. Steinman is not admitted as authority even in England.-Laugher v. Pointer, 1 B. and Cres. 547. Randleson v. Murray, 8 Adol. and Ellis, 109. Guarman v. Burnet, 6 Mees. and Wels. 499.. [Lord Justice- General.-You have said quite enough to shew that the case of Bush v. Steinman cannot be considered by us as a decisive authority.] In our law there is no such distinction as in England, between what is done on an heritable subject, of which the employer is proprietor, and what is done elsewhere. The only question with us is, as to the power of control. Roxburghe v. Waldie, 10th Feb. 1825, House of Lords. Lord Justice-General.—In this case, counsel having been fully heard upon the application of the verdict of the jury as to its effect in regard to the three parties called by the pursuer as defenders in her action of assy thment and damages against them, and in which the jury found her entitled to £50 of damages, reserving to the Court to fix on which the liability lay-and a great variety of authorities having been appealed to on both sides-by Messrs. Russell, Macnee and Company, the proprietors of the subjects under repair, Messrs. Gilfillan and Jackson, the contractors for the whole repairs, and Mr, Tait, the subcontractor for the plaster-work of the premises-the Court took time to consider their judgment. I have accordingly examined the cases that have been referred to on both sides, both as decided in our own courts and in those of England; and, after full consideration, I have come to the conclusion, that no decree for the damages here awarded ought to be given against any of the parties except Tait, the sub-contractor. 1 This party having had occasion for a quantity of lime to complete the plaster-work of the buildings in question, in terms of his sub-contract with Gilfillan and Jackson, deposited, or caused to be deposited, not within the space duly set apart, fenced, and lighted, as a shed for the materials requisite for the repairs di rected to be executed by Gilfillan and Jackson, the contractors employed by Messrs. Russell, Macnee and Company, but upon a part of the street adjoining, no doubt, to the shed, but which was neither fenced nor lighted, when the deceased drove up with his cab, and his horse having driven into the heap, he was thrown' out and mortally injured, and afterwards died in consequence. Tait having been included as one of the defenders against whom, as conjunctly and severally liable, the conclusion of the pursuer's action, the widow of the deceased, was directed, I can have no doubt of the propriety of decerning against him for the damages found due by the verdict. But, on a careful review of the decisions both in this Court and in England, I am of opinion, that there are no sufficient grounds in law for subjecting either of the other two defenders in the damages found due to the pursuer. Keeping in view that there are no special circumstances whiatever to bring Messrs. Russell, Macnee and Company, the proprietors, or Gilfillan and Jackson, the contractors with them, into any immediate connection or contact with what unquestionably occasioned the fatal occurrence-that the one only directed their premises to be repaired, and that the others entered on this execution, with the full sanction of the municipal authorities their liability for what must be held as the wrongful and negligent act of Mr. Tait, cannot, according to our decisions, be maintained. The leading case in regard to an attempt to sustain the liability of the owner of property, and of persons to a certain extent acting under him, or in his alleged employment, is that of Linwood v. Hathorn, decided in this Court, and affirmed in the House of Lords, in which, for the cutting of a tree on his estate, ⚫ a proprietor was found not liable, though a death had followed from the operation carried on by his servants, or those employed under him-though, no doubt, questions were raised on the proof as to how far he had sanctioned the particular act. I shall not stop to examine the particulars of that case, with which I was fully conversant, I haying both had the unfortunate wood-cutter in the criminal court, and afterwards decided the civil action of assythment; but I refer to it as containing much discussion on the extent of liability in questions of this nature, and reference to other cases. It will however be found, that in his judgment in the case of Findlater v. Duncan, 23d Aug. 1839, regarding the liability of road trustees, Lord Chancellor Cottenham particularly referred to this case of Linwood, in regard to which he thus expressed himself:—“So far from finding any principle in the law of Scotland for making the liability of persons for the acts of others acting under their presumed authority greater than it is in this country, I find the rule laid down in Linwood v. Hathorn, by a majority of the judges, much more restrictive of such liability than the rule adopted in the case of Bush v. Steinman." Now, here, there is no indication of a doubt of the soundness of the principle adopted by us in the case of Linwood; and same learned Lord, on a careful and minute examination, the cases that had occurred in Scotland, beginning with of Innes v. Magistrates of Edinburgh, 1st Feb. 1798, M. 12, and coming down to the latest in date, gave a full and disti opinion, that the defenders, the road trustees, were not liable the accident occasioned by the gross neglect of those employ under them in the management of the roads in questiondoubt keeping in view that the road funds could not be available for their relief under the statutes. It was in the Case also that Lord Brougham, in concurring with the L Chancellor, gave it as his confident opinion, that, according the law of Scotland, a judgment similar to that of Bas Steinman would not have been given in the Scottish cours But this very case of Bush v. Steinman is that mainly on in the present case for supporting the claim of liability of Russell and Macnee, the proprietors, and Gilfillan and son, the contractors. I have perused that case, as reporte Bosanquet and Puller, with all due attention, and I have tainly arrived at the same conclusion regarding it as that Lord Brougham, and know of no case in which liability been attached to a proprietor for an accident caused by negligence, not of a contractor with that proprietor for wor his property, nor of a sub-contractor, but of a fourth party ployed by the sub-contractor to bring materials, and whe negligently laid them down in a road, where an accident occur But, looking to the various subsequent cases which hav lowed that of Bush v. Steinman, decided in the Common in the time of Chief Justice Eyre, above fifty years ago seeing that, from the very first, its soundness was quest and its doctrine greatly limited, in the opinions of Chief Ju Abbott (Lord Tenterden), and J. Littledale, and that the hesitation has been followed by other judges in the various cases reported in the volumes of Campbell, Espinasse, Me and Welsby, Barnewall and Cresswell, and Adolphus and all of which I have perused, the result appears to me to be, the authority of Bush v. Steinman is greatly impaired, and the true state of the law of England cannot be safely held us as expounded by that solitary decision. I shall com myself with quoting only the words of Mr. Baron Parke in judgment in the case of Rapson v. Cubitt. In that case, Bi Parke, concurring with Lord Abinger and Barons Alderson Rolte, thus expresses himself, where action was brought g contractors for repairing a club house, and who had a sub tract with a gas-fitter, whose negligence had caused an explo to the injury of the plaintiff:-The true rule on this sa was laid down by this Court in the case of Guarman Bur which is directly in point, and cannot be distinguished from present case. The Court there said-The liability, by vi of the principle of relation of master and servant, must when the relation itself ceases to exist; and no other per than the master of such servant can be liable on the sin ground, that this servant is the servant of another, and his the act of another-consequently a third person entering contract with the master, which does not raise the relatio master and servant at all, is not thereby rendered liable." in the case of Milligan v. Wedge, 12 Adol. and Ellis, 737, aga the owner of a bullock, who had employed a licensed drover drive it from Smithfield, and the drover employed a boy consequence of whose carelessness the bullock injured the pla tiff's property, Coleridge, J., on the point as to who the per is that did the injury,' says-The true test is, to ascertain relation between the party charged and the party actually the injury. Unless the relation of master and servant between them, the act of the one creates no liability in the ot Apply that here. I make no distinction between the lice drover and the boy; suppose the drover to have committed injury himself. The thing done is the driving. The o makes his contract with the drover that he shall drive the ben and leaves it under his charge, and then the drover does the The relation, therefore, of master and servant, does not ea between them,'" Now, such being what I consider to be the true state of law of England on this subject, I can find no sufficient antho in it for leading us to adopt a principle of liability which reach the case either of the contractors or those that employ them--and, therefore, that the pursuer can claim her dama only against Tait, the person who truly was the cause of injury to her husband. I am inclined, however, to find that expenses should be awarded against her. TO |