1849. REEDIE บ. LONDON AND NORTH WESTERN HOBBIT V. SAME. by Mr. Justice Littledale, in his very able judgment in Laugher v. Pointer, 5 B. & C., at pages 559 and 560; and it is also noticed in the judgment of this Court, in Quarman v. Burnett. But in neither of these cases was it neRAILWAY Co. cessary to decide whether such a distinction did or did not exist. The case of Bush v. Steinman, where the owner of a house was held liable for the act of a servant of a sub-contractor, acting under a builder employed by the owner, was a case of fixed real property. That case was strongly pressed in argument, in support of the liability of the defendants, both in Laugher v. Pointer and Quarman v. Burnett; and as the circumstances of those two cases were such as not to make it necessary to overrule Bush v. Steinman, if any distinction in point of law did exist, in cases like the present, between fixed property and ordinary moveable chattels, it was right to notice the point. But, on full consideration, we have come to the conclusion, that there is no such distinction, unless, perhaps, in cases where the act complained of is such as to amount to a nuisance; and in fact, that, according to the modern decicisions, Bush v. Steinman must be taken not to be law, or, at all events, that it cannot be supported on the ground on which the judgment of the Court proceeded. It is not necessary to decide whether, in any case, the owner of real property, such as land or houses, may be responsible for nuisances occasioned by the mode in which his property is used by others not standing in the relation of servants to him, or part of his family. It may be, that in some cases he is so responsible. But then, his liability must be founded on the principle, that he has not taken due care to prevent the doing of acts which it was his duty to prevent, whether done by his servants or others. If, for instance, a person occupying a house or a field should permit another to carry on there a noxious trade, so as to be a nuisance to his neighbours, it may be that he would be responsible, though the acts complained of were neither his acts nor the acts of his servants. He would have violated the rule of law, "Sic utere tuo ut alienum non lædas." This is referred to by Mr. Justice Cresswell, in delivering the judgment of the Court of Common Bench, in Rich v. Basterfield(a), as the principle on which parties possessed of fixed property are responsible for acts of nuisance occasioned by the mode in which the property is enjoyed. And, possibly, on some such principle as this, the case of Bush v. Steinman may be supported. But certainly that doctrine cannot be applied to the case now before us. The wrongful act here could not in any possible sense be treated as a nuisance. It was one single act of negligence; and, in such a case, there is no principle for making any distinction by reason of the negligence having arisen in reference to real and not to personal property. If the defendants had employed a contractor, carrying on an independent business, to repair their engines or carriages, and the contractor's workmen had negligently caused a heavy piece of iron to fall on a bystander, it would appear a strange doctrine to hold that the defendants were responsible. Mr. Justice Littledale, in his very able judgment in Laugher v. Pointer, observed, (5 B. & C. 558,) that the law does not recognise a several liability in two principals who are unconnected; if they are jointly liable, you may sue either, but you cannot have two separately liable. This doctrine is one of general application, irrespective of the nature of the employment; and, applying the principle to the present case, it would be impossible to hold the present defendants liable, without, at the same time, deciding that the contractors are not liable, which it would be impossible to be contended. It remains only to be observed, that, in none of the more modern cases has the alleged distinction between real and personal property been admitted. In Milligan v. Wedge, Lord Denman expresses doubt as to the existence (a) 4 C. B. Rep. 802. 1849. REEDIE v. LONDON AND NORTH RAILWAY Co. WESTERN HOBBIT บ. SAME. 1849. REEDIE V. LONDON AND NORTH WESTERN of such a distinction in any case; and, in the more recent case of Allen v. Hayward, the judgment of the Court proceeded expressly on the ground that the contractor, in a case like the present, is the only party responsible. The RAILWAY CO. last case so closely resembles the present, that, even if we had not considered the decision right, we should probably have felt bound by it. But we see no reason to doubt its perfect correctness. It seems to follow as a necessary corollary from the principles of the preceding cases, and entirely to govern this. HOBBIT V. SAME. Our attention was directed during the argument to the provisions of the contract, whereby the defendants had the power of insisting on the removal of careless or incompetent workmen, and so it was contended they must be responsible for their non-removal. But this power of removal does not seem to us to vary the case. The workman is still the servant of the contractor only, and the fact that the defendants might have insisted on his removal if they thought him careless or unskilful, did not make him their servant. In Quarman v. Burnett the particular driver was selected by the defendants; but this was held not to affect the liability of the driver's master, or to create any responsibility in the defendants; and the same principle applies here. On these grounds we are of opinion that this rule must be made absolute. Rule absolute. IN this case, a rule nisi had been obtained for judgment A rule for as in case of a nonsuit; and on the last day of the term Horn moved to make the rule absolute, on affidavit of service. The Court made the rule absolute, but the Master, after the expiration of the term, having discovered a defect in the affidavit, refused to draw up the rule. tion Horn now moved to make the rule absolute.-The momay now be made, under the particular circumstances of the case. This ought to be considered as a pending rule. The statute 1 & 2 Vict. c. 32, s. 1, enacts, "that it shall be lawful for the Courts of Queen's Bench, Common Pleas, and Exchequer, at their discretion, to hold sittings in Banc in time of vacation, at such times as are now by law appointed for holding sittings at Nisi Prius in London and Middlesex, for the purpose of disposing of business then pending and undecided in such Courts respectively." And the 2nd section provides, that "such sittings shall be holden by virtue of a rule or order of Court, to be published as directed by the Act." Pursuant to this enactment, this Court, on the 4th of June last, made and published a rule, under which the present sittings are held. In that rule it was stated, that "the Court will at such sittings proceed in disposing of the business then pending in the paper of new trials, in the paper of special cases, and in the paper of demurrers, and in disposing of the motions and applications which shall then have been made and shall be then pending, and in giving judgment in all cases then standing for judgment." [Alderson, B.-In these sittings after term, can we hear any other rules argued than such as could have been put into the peremptory paper? If you had enlarged your rule, it would have been a pending rule; but is that the case now? If you had mentioned it, judgment as in case of a non suit was upon the last day of term made abso lute on affidavit of service; but the Master having discovered a defect in the affidavit, after the expiration of the term, re fused to draw up the rule. This defect hav ing been rectified, the Court, in the sittings after term, made the rule abso lute on motion, on the ground that the rule was then pend ing. 1849. Dow V. BELL. it would have been enlarged as a matter of course.] The defect was not discovered until it was too late to amend it; and the affidavit is now correct. PER CURIAM. We think, that, under the circumstances, the rule may be considered as a pending rule, and that it may now be made absolute. Rule absolute. July 6. A defendant having obtained a rule nisi on a motion to de prive the plaintiff of his costs, under the stat. RICKETTS v. NOBLE. IN this case, on a former day, a rule nisi had been obtain ed by the defendant, to deprive the plaintiff of his costs under the 43 Geo. 3, c. 46, s. 3,—the question then being, whether that statute applied to arrests under the 1 & 2 Vict. c. 110. The judgment of the Court was adverse to the defendant, and to the effect that the rule ought to be opinion to be in discharged; but, in discharging the rule, leave was given to the defendant to enter a suggestion to deprive the plaintiff of his costs, to the end that a writ of error might be 43 Geo. 3, c. 46, s. 3, the Court intimated their favour of the plaintiff, and delivered judgment to the effect that the rule ought to be brought thereon (a). discharged; but, at the same time, directed a suggestion to be entered on the record, to enable the parties to raise the ques In Easter Term last, (April 23,) Willes moved, on the part of the plaintiff, that the rule should be amended by striking out so much of it as related to the entry of the suggestion. The rule ought to have been tion for a Court simply discharged, in pursuance of the expressed opinion and judgment of the Court. There is now this inconsistency, as related to the for the Court have decided that judgment must be for the entry of the sug- plaintiff, and have in effect given judgment for the de of error: Held, that so much of the rule gestion was in inconsistent with the ex pressed opinion correct, as being fendant. The party who has obtained the judgment of the Court is obliged to bring the writ of error. In addition and judgment of to this, no suggestion can be entered; for, under the 43 Geo. the Court, which 3, c. 46, s. 3, the matter is to be decided by the Court upon the rule. [Parke, B.-Your argument has certainly great was in the plaintiff's favour; and the Court amended the rule by striking out the objectionable part. (a) See the case, 3 Exch. 521. |