NEGLIGENT DEIVING. 297 



So, if a man employs another to do a thing, and there ^VTiere there 

 are several ways of doing it, one criminal and another areseTeral 

 innocent, and he does it in a criminal manner, the em- ™^Lg. "°° 

 ployer is not liable ((f). 



If a contractor, however, is employed to do an unlawful Liability of 

 act, the employer is liable, because in such case the act "n employer. 

 of the employed is the act of the employer. Therefore, 

 where the defendants had employed a contractor to open, 

 without legal authority, the streets of Sheffield, and the 

 plaintiff was injured by the rubbish, it was held that this 

 being the act from which the injury arose, the defendants 

 were liable (m). And where a duty is imposed on the 

 defendant by common law («), or by a statute (o), he 

 cannot excuse himself by throwing the blame on his 

 contractor. 



The question in such cases is, whether the injury was What is the 

 the act of the party as the employer's servant, or in the q>iestion m 

 character of contractor ; because in the first place the em- 

 ployer would be liable to an action, and in the second he 

 would not (p). And the test applicable to the determina- 

 tion of this fact is whether the employer has any control 

 over the persons employed as to the manner in which their 

 work should be performed (q). 



Thus the defendant with the consent of the owner of Drain re- 

 the soil and the surveyor of the district, employed P., who P^^*"^ ^X, "^ 



,. , , •' 1 , ji 1 ordinary but 



was an ordmary labourer, but nevertheless a person par- stiUui 

 ticularly skilled in the construction of drains, to cleanse a labourer. 

 drain, which ran from the defendant's garden under the 

 public road, and paid P. five shillings for the job. The 

 defendant had never before employed P., and did not in 

 any way interfere with or direct him in doing the job. But 

 it was held that the relationship of master and servant had 

 been established between the defendant and P., so as to 

 render the defendant liable for an injury occasioned to the 

 plaintiff, whilst riding on the public road, by reason of the 



(0 Feaohei/ v. Soland, 13 C. B. L. J., Q. B. 446 ; 35 L. T., N. S. 



182. See, too, Olevelandv. Spier, 16 321. 

 C. B., N. S. 399. (o) Sole Y. SUtitigbourne Sail. Co., 



{m) miis V. Sheffield Gas Co., 23 6 H. & N. 488 ; 30 L. J., Ex. 81. 

 L. J., Q. B. 42. And see Whiteley {p) Knight v. Fox, 5 Ex. 725 ; 



V. Pepper, 2 Q. B. D. 276 ; 46 L. J., Overton v. Freeman, 21 L. J., C. P. 



Q. B. 436; 36L. T.,N. S. 688; 25 52. 

 "W. E. 607. (?) Sadler v. Henlock, 24 L. J., 



«) Tarry t. Ashton, 1 Q. B. D. Q. B. 138 ; Blake v. Thirst, 2 H. & 



314 ; 45 L. J., Q. B. 260 ; 34 L. T., C. 20 ; Butler v. Sunter, 7 H. & N. 



jSf . S. 97 ; 24 W. E. 581. See also 826. 

 Bo-wer v. Feate, 1 Q. B. D. 321 ; 45 



