(ii) New Orleans R. Co. v. Allbritton, 38 Miss. 242.

(ij) Ballou v. Farnum, 9 Allen, 47.

(j) Storrs v. City of Utica, 17 N. Y. 104. This case throws some doubt on Blake v. Ferris, 1 Seld. 48.

(jj) Murphy v. Commissioners, etc. 28 N. Y. 184.

(jk) Hafford v. Now Bedford, 16 Gray, 297.

(k) A party who is not the general master of a servant may make him his servant in a particular transaction, by specially directing him thereto, or by a subsequent adoption of what he has done, and in this way a special liability may be incurred. And in Quarman v. Burnett, 6

M. & W. 508, the owners of the carriage having provided the driver with a livery which he left at their house at the end of each drive, and the injury in question being occasioned by his leaving the horses, while so depositing the livery in their house, the court acknowledged that if it had appeared that the coachman went into the house to leave his livery on that occasion under a special order of the owners, or under a general order to do so at all times, without leaving any one at the horses' heads, a liability would have been incurred. In the course of the judgment. Baron Parke observed: "It is undoubtedly true that there may be special circumstances which may render the hirer responsible * to the hirer, if the injured party compelled him to make compensation, and it could be shown that the owner had knowingly employed an insufficient and dangerous servant, for this would be only to hold him responsible for his own negligence. The rule we have given would not require the tort to be committed in the master's presence in order to hold him responsible. It is enough if, when the tort was committed, the wrong-doer was in the service of the master, and was then acting as his servant. And this question has been held to be a question of fact for the jury. (l) If, however, the servant, when doing the wrong, was employed in the service of the master, it is no defence for the master, that he was also, and in some degree, acting in his own business. (m)

1 In Omoa, etc. Co. v. Huntley. 2 C. P. D. 464, it was decided that an owner who charters a vessel for certain specified objects, but who engages and pays the master and crew, is liable for the loss of the cargo through their negligence. - K.

There seems to be some extension of the responsibility of the master, when the work, in the doing of which the injurious negligence occurred, related to real estate; on the ground that the owner of such property is bound to be careful how his use of it, of job-horses and servants responsible for the neglect of a servant, though not liable by virtue of the general relation of master and servant. He may become so by his own conduct, as by taking the actual management of the horses, or ordering the servant to drive in a particular manner, which occasions the damage complained of, or to absent himself at one particular moment, and the like." See also Burgess v. Gray, 1 C. B. 578. - Where question is not made of the fact of service, but simply whether it is a service of that party whom it is attempted to charge, - there can be no doubt that the servant cannot have, with respect to the same act of service, two unconnected masters. Two persons may be joint masters, and thereby subject to a joint liability; and such joint liability may be converted into a several one by the election of the plaintiff to sue one separately, - which the law allows to be done in actions of tort; but " two persons cannot be made separately liable at the election of the party suing, unless in cases where they would be jointly liable." Littledale, J. Laugher v. Pointer, 5 B. & C. 559. This principle serves as a test in that difficult class of cases where the negligent servant seems to be in some respects in the employment of one party, and in some respects in that of another. In such a case, as soon as it is ascertained that, as to the transaction in question, he is the servant of either one, it follows immediately that he cannot be regarded as the servant of the other, who therefore is not liable for his negligence. Hence in the great case of Laugher v. Pointer, 5 B. & C. 547, it was held by Abbott, C.J., and Little-dale, J. (whose opinion has since been authoritatively approved), in opposition to the view of Bayley and Holroyd, JJ., that where the owner of a carriage hired of a stable-keeper a pair of horses to draw it for a day, and the owner of the horses provided a driver, through whose negligent driving an injury was done to a horse belonging to a third person, the owner of the carriage was not liable to be sued for such injury. And the case is not affected though the owners of the carriage asked for that particular servant among many. " If the driver be the servant of the job-master, we do not think he ceases to be so by reason of the owner of the carriage preferring to be driven by that particular servant, where there is a choice amongst more, any more than a hack post-boy leases to be the servant of an innkeeper, where a traveller has a particular preference of one over the rest, on account of his sobriety and carefulness. If, indeed, the defendants had insisted upon the horses being driven, not by one of the regular servants, but by a stranger to the job-master, appointed by themselves, it would have made all the difference." See also Quarman v. Burnett, 6 M. & W. 508: Stevens v. Arm-strong, 2 Seld. 4.'55; Dalyell v. Twer, EL Bl. & El. 899.

(l) Per Lord Abinger, at nisi prius, Brady v. Giles, 1 Mo. & R. 494.

(m) Patten v. Rea, 2 C. & B. 605.

or acts in relation to it, affect third parties or the public; but the limits of this extension are not well settled. If it have any foundation whatever, it must rest upon the maxim sic utere tuo ut alienum non loedas, which, while it imposes a certain restriction upon the use of all property, may be held perhaps to apply more especially to lands; and whoever permits anything to be done upon his ground, to the positive damage * of another, may be responsible for the nuisance. Thus it has been decided that one who has directed his servant to remove snow and ice from the roof of his house, is responsible for an injury received by a passer, whether the negligence was that of the servant or of a stranger employed by the latter, or of one who volunteered to assist him. (n) "This duty, however, cannot extend so far as to oblige the owner of land to see to it in all cases that a nuisance is not erected thereon. The measure of his responsibility must be his reasonable power of control, and therefore it should be sufficient for his exculpation, that he never, either expressly or impliedly, sanctioned the nuisance. But if he let his land with a nuisance upon it, he would, on the same principle, be liable for its continuance, as well as for its erection, although he had reserved to himself no right to enter upon the land and abate the nuisance. And so if he let land for a particular use which must result in a nuisance, he should be liable therefor. (o) But the general doctrine, that the owner of fixed property was liable for injury caused by mismanagement thereof by any one, in a manner quite distinct from that in which the owner of a chattel would be held, although once in much favor, (p) is now quite often disregarded. (q)