me permission to make the area, but you neglected your duty in not directing me how to make it, and in not protecting it when in a dangerous condition. If this should be the law, there would be an end to all liability over to municipal corporations, and their rights would have to be determined by a different rule of decision from the rights of private persons. Because the city is liable primarily to a sufferer by the insecure state of the streets, offers no reason why the person who permits or continues a nuisance at or near his premises should not pay the city for his wrongful act. The city gave no permission to Robbins to create a nuisance. It gave him permission to do a lawful and necessary work for his own convenience and benefit, and if, in the progress of the work, its original character was lost, and it became unlawful, the city is not in fault. We can see no justice or propriety in the rule, that would hold the city under obligation to supervise the building of an area such as this.

But the defendant maintains "that the owner of a lot who employs a competent and skilful contractor (exercising an independent employment) to erect a building on his lot, is not liable to third persons for injuries happening to them by reason of the negligence of such contractor in the prosecution of the work," and that this area was not such a nuisance as rendered him liable. How far owners of real estate or personal property are answerable for injuries which arise in carrying into execution that which they have employed others to do, has been a subject much discussed in England and this country since the case of Bush vs. Steinman, 1 Bos. & Pul. 404. All the cases recognise fully the liability of the principal where the relation of master and servant or principal and agent exists; but there is a conflict of authority in fixing the proper degree of responsibility where an independent contractor intervenes. We are not disposed to question the correctness of the rule contended for by the defendant as an abstract proposition. The rule itself has, however, limitations and exceptions, and we cannot see that it is applicable to this case.

"If the owner of real estate suffer a nuisance to be created or continued by another on or adjacent to his premises, in a prosecu

tion of a business for his benefit, when he has the power to prevent or abate the nuisance, he is liable for an injury resulting therefrom to third persons:" Clark vs. Fry, 8 Ohio R. 359; Ellis vs. Sheffield Gas Consumers' Company, 2 E. & B. (75 É. C. L. R.) 767.

This area when it was begun was a lawful work, and if properly cared for it would always have been lawful; but it was suffered to remain uncovered, and thereby became a nuisance, and the owner of the lot for whose benefit it is made is responsible. He cannot escape liability by letting work out like this to a contractor, and shift responsibility on to him if an accident occurs. He cannot even refrain from directing his contractor in the execution of the work so as to avoid making the nuisance. A hole cannot be dug in the sidewalk of a large city, and left without guards and lights at night, without great danger to life and limb; and he who orders it dug, and makes no provision for its safety, is chargeable, if injury is suffered.

It is said that Robbins did not reserve control over the mode and manner of doing the work, and is not therefore liable; but the digging this area necessarily resulted in a nuisance-was the result of the work itself-unless due care was taken to make the area safe.

This is a clear case of "doing unlawfully what might be done lawfully; digging earth in a street without taking proper steps for protecting from injury:" Newton vs. Ellis, 5 E. & B. (85 E. C. L. R.) 123.

"If the owner of real estate builds an area in front of his store, he must at his peril see that the street is as safe as if the area had not been built:" Congreve vs. Morgan & Smith, 18 N. Y. 84.

The privilege of making the area was a special favor conceded to Robbins alone, as the owner of the lot, and "it is a familiar principle that when one enjoys a privilege in consideration that he alone can enjoy the benefit, he is required to use extraordinary care in the exercise of that privilege :" Nelson vs. Godfrey, 12 Illinois 20.

Robbins, in the exercise of his privilege, did not use even ordinary care. There is no provision in his contract with Button, nor with the men who laid the flagging or put on the iron grating, that

they should provide proper lights and guards. What Button failed to do, by which he is chargeable with negligence, does not appear in the evidence. And Robbins, although repeatedly warned, and having daily supervision over the work by his architect and superintendent, suffers this nuisance to be continued. A case of grosser negligence could hardly be imagined. In the heart of a large city, the owner of a valuable lot, being desirous of adding to the value of a large iron building that he is about to erect by the license (to be inferred, not expressed) of the corporation, digs an area; leaves it open, without guards or lights; fails to provide with his contractor for the very matter which, if left undone, would make it a nuisance; is told of the dangerous condition of the area; has a direct supervision over it by his superintendent, and yet, when an injury is suffered by the very nuisance which he has created for his own benefit, and continued, insists that he is not in fault; that if blame attaches anywhere, it is to his contractor. If the owner of

fixed property is not responsible in such a case as this, it would be difficult ever to charge him with responsibility.

In the cases which were cited by the defendant's counsel, and relied on, was the case of Hilliard vs. Richardson, 3 Gray 349, and the case of Scammon et al. vs. The City of Chicago, 25 Illinois 424.

Hilliard vs. Richardson was a most elaborate and able discussion of the doctrine of respondeat superior, and the authorities in this country and England were fully reviewed, and we see no reason to question the conclusion at which the court arrived. But that case and the one at bar were not at all alike. That was a case where the owner of a building contracted with a carpenter at an agreed sum to repair it, and a teamster, who was employed by the carpenter to haul boards, left them in the street in front of the lot, and an accident happened. The teamster, when he placed boards in the street, was engaged in a work collateral to that which the owner contracted for the repair of the building-and in no sense can the injury be said to happen from the doing of that defectively which the owner directed to be done. The owner was correctly not held liable, and one of the grounds on which that court place their

decision was, "that it was not a nuisance erected by the owner of the land, or by his license, to the injury of another."

The case of Scammon vs. The City of Chicago is similar in many of its facts to this case, and is decided differently. That Court held, as we do, that if the "nuisance necessarily occurs in the ordinary mode of doing the work the occupant or owner is liable, but if it is from the negligence of the contractor or his servants, then he should alone be responsible." But the court also held that "the omission to cover the opening in the area did not necessarily occur as an incident to the prosecution of the work," a rule to which we cannot assent, and which we think is opposed by reason and authority.

It was urged at the bar that this Court in such cases follows the decision of the local courts. Where rules of property in a State are fully settled by a series of adjudications, this Court adopts the decisions of the State Courts. But where private rights are to be determined by the application of common law rules alone, this Court, although entertaining for State tribunals the highest respect, does not feel bound by their decisions. Testing the question of the correctness of the charge of the judge of the Circuit Court to the jury by the rules and principles we have discussed and established, was there or not error in it?

The following language was used by the judge in his charge, and was excepted to by the city. "If, then, the contractors were in possession and control of the premises with their servants and agents, and were, in their employment, independent of the defendant at the time of the accident, and the defendant was not concerned personally in the negligence which caused it, it follows, from what has been said, that he could not be held responsible for it." This instruction, in a case where the facts warranted, might have been properly given. But it did not arise out of the facts of this case; was inapplicable to them; was calculated to confuse and mislead the jury on the question of Robbins's liability: and must have misled them, and should not have been given. A broad rule was laid down, when the very case itself furnished an exception. Robbins's duty was absolute to see that the area, dug under his direction and for his

benefit, should be safely and securely guarded, and failing to do so, his liability attached, and the jury should have been told so. The city also excepted to so much of the said charge of the Court, as leaves the question of joint negligence on the part of the plaintiff and defendant to the jury. The city was not in fault, and this exception was properly taken.

The judgment below is reversed, with instructions to award a venire de novo.

Supreme Court of Illinois.

JAMES B. GORTON, APPELLANT, vs. JOHN M. BROWN, APPELLEE.

An action on the case will not lie for improperly causing a writ of injunction to be issued. The remedy is on the injunction bond.

The case of Cox vs. Taylor's Administrators, 10 B. Monroe 17, not recognised as authority.

The declaration

This was an action of trespass on the case. charges, that the appellant, on the 30th day of October, 1854, falsely, maliciously, and without any reasonable or probable cause whatsoever, filed his bill of complaint on the chancery side of the Lake Circuit Court, and at the same time falsely, maliciously, and without any reasonable or probable cause whatever, caused to be issued out of, and under the seal of said court upon said bill, and the indorsement of the master in chancery of said county thereon, a writ of injunction against and to the said appellee, Brown, whereby he, the said Brown, was restrained and enjoined from selling, or in any way or manner disposing of, or interfering with a certain lot of lumber which was in said injunction alleged to be owned by said Brown and Gorton as partners. Also enjoining said Brown from collected any debts due on account of any of said lumber which had been sold on credit; which said injunction was, on or about the day of the issue thereof, served on said Brown.

Declaration also charged, that at and before time of filing said bill, said Brown was engaged in the lumber trade. That he had