(cc) Schwartz v. Gilmore, 45 Ill. 455.

(cd) Daeglingf. Gilmore, 49 Ill. 248. (d) Milligan v. Wedge, 12 A. & E.

737; Martin v. Temperley, 4 Q. B. 298; De Forrest v. Wright, 2 Mich. 368; Pierce v. O'Keefe, 11 Wis. 180; Butler v. Hunter, 7 H. & N. 826.

(e) Allen v. Hayward, 7 Q. B. 960; Gayford v. Nicholls, 9 Exch. 702. (/) Knight v. Fox, 5 Exch. 72. (g) Overton v. Freeman, 3 Car. & K. 49. (gg) Hefferman v. Benkard, 1 Rob. 432.

1 Thus the owner of a house, employing a carpenter to raise it and put another story under it complete, is not liable for an injury to an adjoining house during the work, unless the carpenter is unskilful or unsuitable, or the work creates a nuisance. Conners v. Hennessey, 112 Mass. 96. See Robinson v. Webb, 11 Bush, 464. But Bower v. Peate, 1 Q. B. D. 321, decided that if a house-owner employs a contractor to pull the house down, excavate the foundations, and rebuild it, he is liable for an injury thereby caused to an adjoining house, on the ground that the owner was bound to see to it that no accident happened, although the contractor undertook to support the adjoining house as far as might be necessary. - K.

(h) Peachey v. Rowland, 13 C. B. 182; Ellis v. Sheffield Gas Co. 2 El. & Bl. 767. - It is a consequence from the principles stated in the text, that if a contractor himself employ a servant, he and not the original employer is liable for the conduct of that servant. And the general employer does not become liable even if he have a degree of control over the servant, and the power of removal, provided this authority is not so extensive as in effect to render the servant no longer the contractor's servant. Where a company, empowered by act of parliament to construct a railway contracted with certain persons to make a portion of the line, and by the contract reserved to themselves the power of dismissing any of the contractor's workmen for incompetence; and the workmen, in constructing a bridge over a public highway, negligently caused the death of a person passing beneath the highway by allowing a stone to fall upon him: Held, in an action against the company, upon stat. 9 & 10 Vict. c. 93, by the administratrix of the deceased, that they were not liable; and that the terms of the contract in question did not make any difference. Reedie v. London, etc. R. Co. 4 Exch 244.

Yet a man is none the less liable for the negligence of his own servants because they were not directly employed by him, but mediately, through the intervention of another, whom he has authorized to appoint servants for him. And Littledale, J., in the able opinion so much cited, instances several cases where the liability exists, although the master has neither the direct appointment nor the superintendence of the servants; as the liability of a shipowner for the crew selected and governed by the master; of the owner of a farm, who conducts its operations through a bailiff, for the inferior working men hired by the bailiff; and of the owner of a mine for the workmen employed by his steward, and paid by him on behalf of the master. To which may be added the liability of the owner of a chartered ship for the negligence of the crew while under the immediate direction of the charterer. See Fenton v. Dublin Steam Packet Co. 8 A. & E. 835. The following convenient tests for ascertaining in a particular case whether a certain person was the master of the servants in question, are suggested by Coleridge, J., 7 Jur. 152: Had he the power of selecting them '. - was he the party to pay them? - were they doing his work? - were they doing that work under his control in the ordinary way? - Where the other elements of liability exist, it is no defence that the master, voluntarily performing part of his work by means of servants, was obliged by law to take those servants from a prescribed class. Whether he would be liable where the law absolutely forbade him to do that part of his business himself, and still allowed him to select out of a class more or less numerous, is perhaps unsettled, but the probability is he would still be held. Where there is this personal prohibition, and also an obligation by law to take a particular individual, and thus no liberty of choice whatever is permitted, it seems the master's liability ceases. See Martin v. Temperley, 4 Q. B. 298; The Agricola, 2 Wm. Rob. 10; The Maria, 1 Wm. Rob. 95; Lucy v. Ingram, 6 M. & W. 302; Yates v. Brown, 8 Pick. 23; Stone v. Codman, 15 Pick. 297; Lowell v. Boston, etc. R. Co. 23 Pick. 24; Sproul v. Hemingway, 14 Pick. 1; Ruffin, C. J., in Wiswall v. Brinson, 10 Ired. L. 563; Blake v. Ferris, 1 Seld. 48; Stevens v. Armstrong, 2 id. 435; Kelley v. Mayor, etc. of New York, 1 Kern. 432.

(hh) Creed v. Hartman, 29 N. Y. 591, and 8 Bosw. 123.

(i) See some of the cases cited in preceding note, and Mayor, etc. of New-York v. Bailey, 2 Denio, 445; Milliard v. Richardson, 3*Grav, 352. See also Camus v. Citizens Co. 40 Barb. 380.

1 Thus by employing a person to fill an ice-house by the cord, the employer cannot escape liability for injuries caused by an obstruction of the street in so doing. Darmstaetter v. Moynahan, 27 Mich. 188. - K.

held liable for an injury caused by the wilful misconduct of its engineer. (ii) And mortgagees of a railroad who are in possession and who manage the road, are liable for the negligence of their servants. (ij) So, too, a distinction seems to be taken between an injury caused by the manner of doing a work, and one caused by the work itself. As, for example, a * municipal corporation building a sewer, would not be liable for the negligent act of a workman employed by the contractor; but would be liable for an accident caused by the sewer being left open at night, and improperly lighted and guarded. (j) So commissioners of emigration are not responsible for the good conduct of persons whom they lawfully license. (jj) And the city of New Bedford was not liable for injury caused by negligence of firemen appointed and paid under a statute; it was held that the action would not lie. (jk) If the contracting party employs persons to do the work, not on a contract, but on day's wages, he would still retain the power of directing them from day to day in their work; and this might render him liable. But we should still hold that if the work done at day wages were such as to carry with it no implication or probability of actual supervision or control, and none such were proved in fact, the employer would not be liable. For the same reason we should say that the owner and letter of a coach, horses, and coachman, was or was not responsible to one injured by the negligence of the coachman, as the terms of the hiring and the circumstances of the case led to the conclusion that the coachman was or was not at the time of the negligence the servant of the owner or of the hirer of the coach. (k)1 The owner might doubtless be held