(LORD CAMPBELL, Ch. J. I think not, if the words had been there with defendant's privity.

ERLE, J. It seems to me that, if they were there before the note was signed, they would form part of the contract.)

The rule must be the same respecting these words as it would be respecting a place of payment. Had a place been named in the body of the note, that would have been part of the contract, but not if the place were only named by a memorandum in the

corner.

Cur. adv. vult.

Afterwards, in this Term (23rd November), Lord CAMPBELL, Ch. J. delivered the judgment of the COURT:

In this case there will be no rule. The alteration was fatal. The note was made, payable at six months after date, with lawful interest. The holder, the present plaintiff, is a party to the addition, in the corner of the note, of the words "interest at six per cent. per annum." That, we think, was made part of the contract had it been inserted in the body of the note it would have unquestionably been so: and, though it was inserted in the corner, if that had been done before the note was signed it would have bound the maker, inasmuch as the effect of a written contract is to be collected from all within the four corners of the instrument. When it is said that the naming of a place of payment in the corner does not make that a part of the contract, that is not on the principle that, because the writing is in the corner, it therefore cannot form part of the contract, but because what is there written is, from mercantile usage, a mere memorandum, for the convenience of parties. We think, therefore, that there has been here. a material alteration of the contract, made by the holder: and that the verdict ought not to be disturbed.

Rule refused.

WARRING

TON

v.

EARLY.

[ *766 ]

1853. Nov. 7.

[767]

[ *768 ]

ELLIS . THE SHEFFIELD GAS CONSUMERS

COMPANY.

(2 El. & Bl. 767-771; S. C. 23 L. J. Q. B. 42; 18 Jur. 146; 22 L. T. O. S. 84.) Though a person employing a contractor to do a lawful act is not responsible for the negligence or misconduct of the contractor or his servants in executing that act, yet, if the act itself is wrongful, the employer is responsible for the wrong so done by the contractor or his servants, and is liable to third persons who sustain damage from the doing of that wrong. COUNT for unlawfully digging a trench in a public street and highway, and heaping up stones and earth, excavated from the said trench, upon the said street and highway, so as to obstruct it, and to be a common public nuisance; whereby plaintiff, lawfully passing along the said public street and highway, fell over the said stones and earth, so heaped up as aforesaid, and broke her arm.

Plea: Not guilty. Issue thereon.

On the trial, before Wightman, J., at the last York Assizes, it appeared that the defendants had made a contract with persons trading under the firm of Watson, Brothers, of Sheffield, by which Watson, Brothers, contracted to open trenches along the streets of Sheffield in order that the defendants might lay gas pipes there, and afterwards to fill up the trenches and make good the surface and flagging. Watson, Brothers, did accordingly, by their servants, open the trenches along one of the streets in question, and, after the pipes were laid, proceeded to fill up the trench and restore the flagging. In doing so, the servants of Watson, Brothers, carelessly left a heap of stones and earth upon the footway; and the plaintiff, passing along the street, fell over them and broke her arm. Neither the defendants nor Watson, Brothers, had any legal excuse for breaking open the street in the manner described, which was a public *nuisance. It was objected, for the defendants, that the cause of the accident was the negligence of the servants of the contractors, Watson, Brothers, for which the defendants were not responsible. It was answered that the contract was to do an illegal act, viz. to commit a nuisance; and, that being so, that the defendants were responsible. The learned Judge directed a verdict for the plaintiff, with leave to move to enter a verdict for the defendants.

T. Jones now moved accordingly:

The defendants cannot be responsible for the act of the servants of their contractors: Overton v. Freeman (1).

(1) 11 C. B. 867.

ELLIS

v.

SHEFFIELD

GAS CON

SUMERS

(LORD CAMPBELL, Ch. J.: In that case the parties made a contract to do a lawful act; for they were authorized to pave the streets: and the nuisance arose from the negligence of the sub-contractor, who, when he was negligent, was not doing what he was employed COMPANY. to do. But here Watson, Brothers, by the contract bound themselves to the defendants to commit a public nuisance. Do you say that a person who employs another to do an illegal act is not responsible for that act, unless the relation of master and servant exists between him and the actual tortfeasor ?)

Yes; a man is in no case answerable for the act of a contractor's servants: Knight v. Fox (1).

(ERLE, J.: In that case the wrong complained of was negligence; and the defendant had not employed the contractor to be negligent. But it seems to me that, if trespass were brought for breaking a man's close, and the facts were that the plaintiff's fields had been ploughed up by persons who had contracted with the defendant to * plough it at so much an acre, the verdict on Not guilty should pass for the plaintiff, inasmuch as the defendant had employed the men to commit the trespass. I should however like to know exactly how the facts were here. I suppose the contract was made as if the defendants had a right to open the street. Was the cause of the accident the opening of the street which the defendants had employed Watson, Brothers, to do? Or was it some act of negligence which would have been a nuisance even supposing the defendants had a right to open the street? If it was the latter, it may be a question whether the defendants can be said to have employed Watson, Brothers, to do the act which has been the cause of the damage.)

There is no ground for the distinction between a contractor employed for one purpose or another. In Peachey v. Rowland (2) such a distinction seems to be hinted at; but there is no authority for it. In no case are the servants of the contractor the servants of the contractee; and a man is not liable for the acts of another person's servants.

LORD CAMPBELL, Ch. J.:

I am of opinion that there should be no rule in this case. Mr. Jones argues for a proposition absolutely untenable, namely, that

(1) 5 Ex. 721.

(2) 13 C. B. 182; 22 L. J. C. P. 81.

[ *769]

ELLIS

v.

SHEFFIELD
GAS CON-

SUMERS
COMPANY,

[770]

[ *771 ]

in no case can a man be responsible for the act of a person with whom he has made a contract. I am clearly of opinion that, if the contractor does the thing which he is employed to do, the employer is responsible for that thing as if he did it himself. I perfectly approve of the cases which have been cited. In those cases the contractor was employed to do a thing perfectly lawful: *the relation of master and servant did not subsist between the employer and those actually doing the work: and therefore the employer was not liable for their negligence. He was not answerable for anything beyond what he employed the contractor to do, and, that being lawful, he was not liable at all. But in the present case the defendants had no right to break up the streets at all; they employed Watson, Brothers, to break up the streets, and in so doing to heap up earth and stones so as to be a public nuisance: and it was in consequence of this being done by their orders that the plaintiffs sustained damage. It would be monstrous if the party causing another to do a thing were exempted from liability for that act, merely because there was a contract between him and the person immediately causing the act to be done.

COLERIDGE, J. concurred.

WIGHTMAN, J.:

It seems to me, as it did at the trial, that the fact of the defendants having employed the contractors to do a thing illegal in itself made a distinction between this and the cases which have been cited. But for the direction to break up the streets, the accident could not have happened: and, though it may be that if the workmen employed had been careful in the way in which they heaped up the earth and stones the plaintiff would have avoided them, still I think the nuisance which the defendants employed the contractors to commit was the primary cause of the accident.

ERLE, J.:

I agree that there should be no rule, on this specific ground that, as I understand the facts, the cause of the accident was the very thing done in pursuance of the specific directions of the defendants contained in their contract; and that in my opinion makes the distinction between the present case, and those cited, in which the cause of the accident was the negligence of those doing the thing, not the thing itself.

Rule refused.

BARTLETT v. KIRWOOD.

(2 El. & Bl. 771-790; S. C. 23 L. J. Q. B. 9; 2 C. L. R. 253; 18 Jur. 173; S. C. nom. Bartlett v. Curwood, 22 L. T. O. S. 85.)

In proceedings, under the Pluralities Act, 1838 (1 & 2 Vict. c. 106), for the sequestration of a benefice for non-residence, it is not necessary that the Bishop's monition, under sect. 54, should be preceded by a citation or other warning to the incumbent.

Where the incumbent, in answer to the monition, sends a return assigning an excuse for non-residence which the Bishop considers insufficient, that is a sufficient hearing of the incumbent to authorize the Bishop to make an order upon the incumbent to return into residence within thirty days.

Where the incumbent, being served with such an order, sends to the Bishop, upon affidavit, an excuse for not obeying the order, which the Bishop considers insufficient, that is a sufficient hearing of the incumbent to authorize the Bishop to sequestrate the benefice after the lapse of the thirty days.

Under sect. 58 a benefice becomes void if it remain, for the space of a year, under sequestration for non-residence; the year commencing from the date of the decree of sequestration; the case not falling within sect. 120, which provides that for all purposes of the Act, except as therein otherwise provided, the year shall commence on 1st January and be reckoned to 31st December, both inclusive.

THIS was an action of assumpsit, commenced 11th February, 1852, to recover 3501. for money had and received. Plea: Non assumpsit. Issue thereon.

On the trial, before Lord Campbell, Ch. J., at the Middlesex sittings after Hilary Term, 1853, a verdict was found for the plaintiff for 3501. damages, subject to the opinion of this Court upon a case which, so far as regards the points discussed, was as follows.

On 1st November, 1846, there was, and still is, a district chapel at Ivington called Saint John's, in the parish of Leominster, in Herefordshire. The chapel *then was and still is in the diocese of Hereford. It then was, and still is, a perpetual curacy; and, as such perpetual curacy, it then had and still has annexed and of right belonging to it a certain annual stipend of 100l., and also certain fees, dues, profits, and emoluments, amounting yearly to the sum of 61. The plaintiff then had been duly presented and nominated by the patron of the said curacy to the Bishop of Hereford, and had thereupon then been duly and canonically licensed to the said curacy, and had then been duly and canonically instituted, and duly and canonically, by the said Bishop, inducted into and invested with all the rights, members and appurtenances thereto belonging, and, amongst other things, to all the fees, dues, profits and emoluments aforesaid. And he was then, and still is, perpetual curate of the said benefice, and entitled

1853.

Nov. 8.

[771]

[ *772 ]