He was the chairman of the street committee of the common council of the city of Trenton, and the case states that all the work upon the streets is done under their direction. It is a part of their business to procure gravel for the streets, and the defendant purchased of McCall, for the use of the city, gravel to be dug out of his gravel-pit adjoining the plaintiff's land, and he ordered the street commissioner to go upon the McCall lot to procure gravel whenever it was wanted. The excavation which occasioned the plaintiff's land to fall in was done under this order, by laborers employed by and under the immediate direction of Scattergood, the street commissioner. It not being stated that it was necessary, in order to procure the gravel required, to go so near the plaintiff's line as to injure him, or that the defendant was present when the excavation was made, or that he in any way participated in or sanctioned the wrongful acts of the workmen, if he is liable for what they did, it must be on the principle that the workmen were, at the time, acting as his servants, so that he was bound to direct them aright.

A master is responsible for the tortious acts of his servant which were done in his service. This responsibility grows out of, is measured by, begins and ends with, his control over them. If it is his duty to control them in what they do, he is responsible for his neglect. But where workmen do not stand in such relation to the person sought to be charged as to make it his duty to control them, they are not his servants, and he is in no wise responsible for their acts, except in some cases where, by subsequently adopting and sactioning those acts, he renders himself legally a participator in them. Hence, it has been held by a series of decisions in England, overruling some of earlier date, that an owner, or principal contractor, or master workman, is not responsible for damage occasioned by the wrongful acts of persons employed by a subcontractor or under-workman, or by a person carrying on a distinct independent employment, because they were not his servants, and did not act for him, but for their immediate employer: Laugher v. Pointer, 5 Barn. & Cress. 547; Rapson v. Cubitt, 9 Mee. & W. 710; Milligan v. Wedge, 12 Ad. & El. 737; Allen v. Hayward, 7 Ad. & El., N. S., 959; Peachey v. Rowland, 16 Eng. L. & Eq. 442. There are American cases of an earlier date which follow the earlier English cases, and carry the liability of the owner or principal contractor somewhat further: Lowell v. Boston & Lowell R. R. Co., 23 Pick. 24 [34 Am. Dec. 33]; Mayor of New York v.

Bailey, 2 Denio, 433. But none of them are like this case. The street commissioner was not appointed by or responsible to the committee, but to the common council who appointed them both. Their duties were plainly distinct. The statement in the case, that all the work done in the streets is done under the direction of the committee, can mean no more than that it is their province to decide what streets need repair, to direct the general mode of doing it, to provide suitable materials, and to devolve on the commissioner the oversight of the details which properly belong to him. The commissioner was not selected by the committee as the suitable person to do this on their behalf, but he did it as a distinct independent officer of the municipal corporation. He was in no sense the agent or the servant of the committee, and they were therefore neither responsible for what he or his workmen did, nor for what he or they neglected to do. The defendant did nothing but purchase a right to dig gravel in a proper manner, and to order it to be so dug. Whatever may be the liability of the street commissioner or of the city itself, as to which no opinion is meant to be intimated, he had nothing to do with the subsequent proceedings.

It would be, in my opinion, exceedingly detrimental to the public service to hold an individual, situate as the defendant was, personally responsible for the tortious acts of workmen employed by an officer charged with that special duty, and I should be sorry to find the law to be so. Every member of the common council of the city might be just as well involved in a similar liability. The committee, for the sake of convenience, was for the time substituted in their place, and acted on their behalf. Who would fill such a station if such consequences are to follow? Certainly no one who had any responsibility to put in danger.

In the case of Nicholson v. Mounsey, 15 East, 384, the captain of a sloop of war was sued for damages alleged to be done by carelessly running down another vessel at a time when he was not on deck, and when it was not his duty to be there, but that of the first lieutenant, who actually had charge of the sloop. The court held that the captain did not stand in the situation of an ordinary master of a vessel, not having the appointment of the officers and crew, and not responsible for their acts. So it may be said here the defendant did not appoint the street commissioner, nor had he any right to employ or to interfere with the workmen engaged by him. Both the defendant and the commissioner were the common servants of the city, having each

their several duties, and neither was the servant nor in the employment of the other. The case of Duncan v. Findlater, 6 Cl. & Fin. 894, is more like the present than any other I have met with. There it was held by the house of lords that the trustees under a public-road act were not responsible for an injury occasioned by the negligence of the men employed by their surveyor in making or repairing the road in accordance with their general directions, the men not being in the situation of servants to the trustees.

Reference was made by counsel on both sides to a class of cases where public officers were not held responsible for the consequences of their own acts or of the acts of their workmen or servants, not done arbitrarily, carelessly, or oppressively, but in the performance of their duty: The Governor etc. v. Meredith, 4 T. R. 794; Sutton v. Clarke, 6 Taunt. 29; Hall v. Smith, 2 Bing. 156; Boulton v. Crowther, 2 Barn. & Cress. 703. But these cases are not applicable. They were cases where the officers had the specific duty or the special authority to do the very act complained of, and where they did it, in fact, either themselves or by workmen by them employed. In this case, it was not required of the committee or of the commissioner to get gravel in a particular place, nor was the doing so indispensable to the performance of their particular duties. If the defendant had done the illegal acts complained of, he would have been accountable for the consequences. But as they were done neither by him nor by workmen in his employ and under his control, but by persons who were strangers to him, he is not responsible for them, and the plaintiff was rightly nonsuited.

VREDENBURGH, J., concurred.

Order, that the circuit court be advised accordingly.

LATERAL SUPPORT.-For doctrines relative to this subject, and damages to buildings and other improvements on land caused by excavations on adjacent lands, see Thurston v. Hancock, 7 Am. Dec. 57, and exhaustive note thereto discussing these questions; Lasala v. Holbrook, 25 Id. 524, and collected cases in note to same 527; Richardson v. Vermont Cent. R. R. Co., 60 Id. 283, and note to same 289.

LIABILITY OF PRINCIPAL OR MASTER FOR ACTS OF AGENT OR SERVANT: Steamboat Co. v. Housatonic R. R. Co., 63 Am. Dec. 154, and notes 161; Moir v. Hopkins, Id. 312, and extended note to same 315; Black v. Carrollton R. R. Co., Id. 586, and note 589; Hilliard v. Richardson, Id. 743; note to Gillenwater v. M. & I. R. R. Co., 61 Id. 108; and exhaustive note to Hagan v. Providence etc. R. R. Co., 62 Id. 379, on liability of principal or master in ex emplary damages for act of agent or servant.

EMPLOYER IS NOT GENERALLY LIABLE FOR ACTS OF INDEPENDENT CONTRACTOR: See note to Hilliard v. Richardson, 63 Am. Dec. 757, containing references to collected cases on the subject.

THE PRINCIPAL CASE WAS CITED in Cuff v. Newark & N. Y. R. R. Co., 35 N. J. L. 22, to the point that the rule is now firmly established that where the owner of lands undertakes to do a work which in the ordinary mode of doing it is a nuisance, he is liable for any injuries which may result from it to third persons, though the work is done by a contractor exercising an independent employment and employing his own servants. But when the work is not in itself a nuisance, and the injury results from the negilence of such contractor or his servants in the execution of it, the contractor alone is liable, unless the owner is in default in employing an unskillful or improper person as the contractor. And in the same case, p. 24, the language of the principal one relative to the "master's responsibility for the tortious acts of his servant," etc., was quoted.

CASES

IN THE

COURT OF APPEALS

OF

NEW YORK.

WOOD v. CHAPIN.

[13 NEW YORK (3 KERNAN), 509.]

DEED IS VALID BETWEEN PARTIES WITHOUT ATTESTATION OR ACKNOWL

EDGMENT,

APPOINTMENT OF TRUSTEES, UNDER NEW YORK ABSENT AND ABSCONDING DEBTOR'S ACT, is conclusive evidence that the steps leading to the appointment were regular, provided jurisdiction of the proceeding is shown.

PROCEEDINGS AGAINST ABSENT OR ABSCONDING DEBTOR ARE NOT VITIATED OR CONVEYANCE OF HIS PROPERTY BY TRUSTEES INVALIDATED, by the failure of the officer before whom the proceedings were had to file his report within the statutory time, or by the failure of the trustees to record their appointment within the statutory time; for the statute is directory merely.

TRUSTEES APPOINTED UNDER NEW YORK ABSENT AND ABSCONDING DebtOR'S ACT take title to his property-not a mere power to convey-and their title dates from the first publication of notice.

TO CONSTITUTE GOOD CONVEYANCE BY WAY OF BARGAIN AND SALE, there must be a valuable consideration expressed in the deed, or proved independently of it; and where it is expressed, it is conclusive. Per Denio, C. J.

BONA FIDE PURCHASER OF LAND FOR VALUABLE CONSIDERATION WITHOUT NOTICE of prior unrecorded deeds who records his deed first is protected, though his grantor purchased with notice thereof.

RECITAL IN DEED ACKNOWLEDGING PAYMENT OF CONSIDERATION MONEY is presumptive evidence that the grantee is a purchaser for a valuable consideration, under the recording acts.

PURCHASER WITH NOTICE OF PRIOR UNRECORDED DEEDS IS PROTECTED by the recording act nevertheless, if he purchased from one who was so protected.

PURCHASER OF LAND UNDER JUDICIAL PROCEEDING INSTITUTED BY HIMSELF for the recovery of his debt is a bona fide purchaser for a valuable