J. C. 1866 SÉRANDAT v. SAÏSSE. that such evidence would be produced, he could have called evidence to prove the contrary. On the 9th of February, 1864, the Appellant moved for a new trial, on the ground of material evidence, set forth in the above affidavit, having been obtained since the judgment of the 23rd of December, 1863, and on the ground of surprise; but the Court, upon reading the affidavits on both sides, refused the motion with costs. The Appellant then presented a petition to the Supreme Court, praying for leave to appeal against the judgment of the 9th of February, 1864, which the Court, upon the 29th of March, 1864, refused, holding that in point of form the effect on the merits of the case would carry all subsidiary proceedings, and that it was useless to multiply appeals. The present appeal was brought against the judgment of the Supreme Court of the 23rd of December, 1863, and also against the Order of the Court made on the 9th of February, 1864, whereby the motion for a new trial was dismissed with costs. Mr. Bovill, Q.C., and Mr. Charles E. Pollock, for the Appellant :It may be assumed that the Respondent's house was destroyed by the sparks from the fire on the Appellant's land, but that alone does not make the Appellant liable. He is not responsible for the acts of the job contractors employed by him, or for the negligence of their servants. The Code Civil is the law in force in Mauritius, and the parties must be governed by its provisions. No doubt by that Code, as by the English law, a Master is liable for the negligence of a servant in his employ. Art. 1384 provides, that " Les maîtres et les commettants" are responsible for the damage “causé par leurs domestiques et Préposés dans les fonctions auxquelles ils les ont employés," but to make the Appellant liable for the negligence it must be shewn that the Préposé acted "sous les ordres, sous la direction, et sous la surveillance du Commettant," Dalloz, Jur. Gen. verbo "Responsabilité." To make the Appellant responsible for the damage, that position must be established by the Respondent, who here charges the negligence, and on whom the onus probandi lies. Now, there is no proof of any act of negligence on the part of the Appellant. The negligence, if any, was that of the contractors, 66 J. C. 1866 v. SAÏSSE. or those employed by them on the job. The Appellant had parted with all control and superintendence over the work and over the contractors, by whom the clearing of the land was to be performed. The SÉRANDAT question, therefore, turns upon this point, did the Appellant stand in the relation of " Commettant," and the Indians "Préposés," within the meaning of Art. 1384 of the Code Civil? The relative position of the parties was not properly understood by the Court below. The term “Commettant" properly translated means "Employer," and Préposé," "Foreman or Overseer," and the French authorities establish this definition: Sirey, Comms. by Gilbert, note 32 (Ed. 1855). Here the contractors were paid a fixed sum to do certain work, and were the sole masters of the work, and the employer is, therefore, not responsible for the negligence of the contractors. This is illustrated by the following cases in the Cour de Cassation, referred to in Dalloz, Jurisprudence Général, pp. 372-3:-Teston v. Salles and the Mining Company of the Grand Combe; Northern Railway of France v. Boisseau; Administration of Forests v. Martin, Dalloz, Jur. Gén., Part. I. p. 49, 1860, where a fire was caused in a Forest by the negligence of a Woodman, and he alone was held liable. So in the case of a fire from the negligence of a Cooper employed in a public warehouse: Dalloz, Jur. Gén. Tom. xxx. verbo "Hiring," ch. 3, sec. 6, p. 415. The labourers here do not answer the description given by Sirey, Codes Annotés, Tom. i., p. 665, as "Ouvriers." The English law, in respect to the liability of a Master for acts of his servants, is analogous to the Art. 1384 of the Code Civil. The rule is laid down in Addison's Treatise on Torts, pp. 340-1 (2nd Ed.), that the party himself, who actually inflicts the injury through his own negligence, is responsible for the injurious consequences of his default. A person contracting with another for the performance of certain work, the work being proper to be done, and the contractor a proper person to do it, the employer is not liable for injuries caused by the negligence of the contractor. In Butler v. Hunter (1) it was determined that an employer is irresponsible for acts of his agent, whether contractor or otherwise, exercising an independent employment, provided the party was well chosen as being reasonably fit for such a position. Reedie v. The London and North(1) 7 H. & N. 826. J. C. 1866 SÉRANDAT บ. SAÏSSE. Western Railway Co. (1); Hole v. The Sittingbourne & Sheerness Railway (2). Where a party comes to his particular situs by reason of the employment, the employer is only responsible if he could have abated the injury or nuisance between the wrongful act commenced and the damage resultant therefrom: Gandy v. Jubber (3). If a contractor selects workmen the employer is not liable: Peachey v. Rowlands (4); Overton v. Freeman (5); Knight v. Fox (6); Steel v. South-Eastern Railway Company (7): and it makes no difference if the labourer employed is paid by the job: Sadler v. Henlock (8). We submit, moreover, that the weight of evidence was against the finding of the Court below that the fire took place through negligence of the contractors, and that, therefore, there ought to be a new trial. We do not question the Order of the Court made on the motion for a new trial, and abandon that part of the appeal. Mr. Anderson, Q.C., and Mr. F. Philbrick, for the Respondent : In point of law the Appellant, as held by the Court below, is responsible for the negligence of his servants in the course of their employment by him: Code Civil, Art. 1384. The Appellant must be considered as the "Commettant" or Master of the Indians employed by him to clear his land of the weeds and brushwood, and they, as his "Préposés" or servants, the proper received definition of those terms: Toullier, vo. "Commettans" Table Général; and he was liable for the damage caused by their acts in discharge of the duties of their employment. The evidence shews that the Appellant had not parted with the control of the works; he superintended the men, and ordered them where to work. This fact distinguishes the cases cited from Dalloz, relied upon by the Appellant, which were cases of contract. It is said that the Code Civil is the same as the English Law. It may be so, but that Code is certainly more comprehensive. The Code Civil is precise: Art. 1384 enacts, in terms, that every person shall be answerable for the damage caused by the act of those for whom he is responsible. "Les (1) 4 Ex. 244. (2) 6 H. & N. 488. (3) 33 L. J. (Q.B.) 151. (5) 11 C. B. 867. (7) 16 C. B. 550. Maîtres et Commettants" are declared to be responsible for damage caused by their "domestiques et préposés dans les fonctions auxquelles ils les ont employés." Here the Appellant was the Master, or "Commettant,” of the Indians employed by him to clear his ground, and they were his servants, or "Préposés." 66 In the Court below it was contended by the Appellant that his position was merely that of hirer of the services of these Indian labourers as conductores operarum; that in fact they were independent contractors, and that neither could be a "Commettant" nor these men "Préposés," within the meaning of Art. 1384 of the Code; but our contention is, that the Appellant was Master of these men, and as such the " Commettant ;" and they, therefore, were his Préposés." Even assuming the contract to be a locatio operarum, the Appellant is still liable for the consequences of the negligent acts of his contractor. He selected and paid the Indians; whether they were paid by the piece or by daily wages is immaterial, and their relationship toward their employer is not affected thereby; indeed the Appellant personally superintended and directed the men when present. The liability imposed by the Code is not confined to servants, "Domestiques," but extends to Préposés, namely, to those who are put forward by the employer and entrusted by him to do some particular work or to fulfil some particular function (præpositi), although they may not be "Domestiques." Now, the two Indians were admittedly selected and engaged by the Appellant to clear his ground. They were his "Préposés" for the execution of that work; and if in the execution of that work they used fires to burn the rubbish and weeds, as it is clear they did, with the knowledge and sanction of the Appellant, he is liable, both on authority and principle, for the damage occasioned by such act. It is so by the English law. Thus in Turberville v. Stampe (1), the Defendant's servant had lighted a fire in his master's field in the due course of husbandry, but so negligently kept it that it extended to the Plaintiff's heath and consumed it, and the Court held that the Defendant was liable; and that case has been followed by Filliter v. Phippard (2); Vaugham v. Menlove (3); Blaikie v. Steinbridge (4); Randleson v. Murray (5); Dalyell v. Tyrer (6); (1) Ld. Ray. 264. (2) 11 Q. B. 347. (3) 3 Bing. (N.C.) 468. (5) 8 A. & E. 109. J. C. 1866 SÉRANDAT V. SAÏSSE. 1866 Feb. 26. Pigott v. Eastern Counties Railway Co. (1). The same liability exists by the civil law: Domat, C. L., B. II., sec. iv. pp. 4 & 6; and the same principle was acted on by this Tribunal in the Canadian cases: The Quebec Fire Assurance Company v. St. Louis (2); The Great Western Co. of Canada v. Braid and Fawcett (3); and by the Courts in Scotland, in Tennant v. The Earl of Glasgow (4); Mackintosh v. Mackintosh (5); Rankin v. Dixon (6); Nisbett v. Dixon (7). The cases on this point are collected in Smith on The Law of Reparation," p. 139. The case of Reedie v. The London & North Western Railway Co. (8), relied on by the Appellant, does not apply, for there the relationship of Master and Servant did not exist between the Defendants and the men who actually did the wrongful act. But taking the Appellant's case on the ground he puts it, as the negli gent act directly arose in performance of the duty contracted for, the Appellant, as principal, would be personally liable. In Hole v. Sittingbourne & Sheerness Railway Company (9), Baron Wilde says, the loss there arose "from imperfectly doing the thing ordered to be done;" and, therefore, as well by the principles of Common Law of England as by terms of the Code itself, the Appellant is responsible for the act of his Préposés in the negligent making or watching the fire on his land. No fresh trial ought to be granted on the ground of new evidence having been found. The Court of Chancery refused leave to file a supplemental bill in the nature of a Bill of review, where, as in this case, the proper means of searching for the evidence had not been used previously to the original decree: Bingham v. Dawson (10). Judgment was delivered by SIR EDWARD VAUGHAN WILLIAMS : This was an appeal against a judgment of the Supreme Court of Mauritius, and also against an Order of that Court, whereby a (1) 3 C. B. 229 & 240. (2) 7 Moore's P. C. Cases, 286. (3) 1 Moore's P. C. (N.S.) 101. (6) 9 B. M. & Y. 1048. (7) 14 B. M. & Y. 973. (8) 4 Ex. 244. (9) 30 L. J. (Ex.) 81; 6 H. & N. (4) 2 Court of Sess. Cas. 22 (3rd Ser.). 488. |