Opinion of the court.

On the contrary, the jury were distinctly told that the gravamen of the charge was, not that the defendant was engaged in an unlawful work when he constructed the area, but the court placed his liability upon the ground that he left the area open and without guards to warn those who had occasion to pass in the street, so that the work, which was originally lawful, became a nuisance and was unlawful at the time of the injury. Correctness of that instruction, in view of the evidence as reported in the transcript, is so manifest that it needs no support.

Objection is also taken to the instruction in which the court told the jury that if they believed from the evidence that the area was built under the direction of the defendant, and for his benefit, and that it was left open and without guards, and that the plaintiff in the suit against the corporation, while passing along the street, fell into the area and was injured as alleged, then they would find for the plaintiff. Want of reasonable care on the part of the injured party was not alleged in defence or suggested in argument, and instructions as to notice to the defendant of the pendency of the prior suit had been previously given to the jury.

Argument for the defendant is that the instruction as to the liability of the defendant was erroneous. He contends that the evidence showed that the erection of the building and all the other work, including the construction of the area, was done by an independent contractor, and that the owner of the land, for whose benefit the improvements were made, is not liable in such cases for any such injuries occasioned by an obstruction or defect in the street caused or created by the contractor or his workmen in the construction of such improvements. Two answers may be given to that proposition, either of which is satisfactory

1. That it assumes a theory of fact which is contradicted by the evidence.

2. That this court, in its former decision, overruled it as applied to a case where the work contracted to be done was itself of a character necessarily to constitute an obstruction or defect in the street or highway requiring precautions,

Opinion of the court.

care, and oversight, to protect the traveller from danger and injury.

1. Theory of fact assumed by the defendant is not sustained by the evidence. Seven contractors were employed in preparing the lot, laying the foundations, erecting and completing the building, raising the sidewalk, constructing the area, laying the flagstones, putting in the gratings, and finishing the improvements. Contractor who constructed the area finished his contract prior to the nineteenth day of December, 1856, when he left and went away, and did not return till after the accident.

Uncontradicted evidence was introduced that the defendant frequently visited the premises during the progress of the work, and that the curb-wall was raised eight or nine inches under his special directions, in the latter part of September of that year. Both the area and curb-wall were ready for the flagstones four months before the accident. When the area was completed it was covered with joists, three by twelve inches, but they were afterwards removed, when the gratings were put down, late in the fall, and were never properly replaced. Attention of the defendant was several times called to the dangerous condition of the sidewalk, and the superintendent of public works gave him notice in writing that the area was not properly covered. He gave no heed to these repeated admonitions, but insisted throughout that it was the sole business of the contractor, with which he had nothing to do. Such wilful negligence the law will never excuse.

2. Import of the decision of this court in reversing the former judgment of the Circuit Court, and remanding the cause for a new trial, was, that the party contracting for the work was liable, in a case like the present, where the work to be done necessarily constituted an obstruction or defect in the street or highway which rendered it dangerous as a way for travel and transportation, unless properly guarded or shut out from public use; that in such cases the principal for whom the work was done could not defeat the just claim of the corporation, or of the injured party, by proving that

Opinion of the court.

the work which constituted the obstruction or defect was done by an independent contractor.

Strictly speaking, that question was not open in this case, but the argument was allowed to proceed; and; lest there should be a doubt upon the subject, it is proper to say that we again affirm the proposition.

Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party.*

Implied authority was doubtless shown to construct the area, if it was done with proper precautions to prevent accidents to travellers, but no authority to construct it without such precautions is proved or can be presumed; and it is clear that in leaving it open and without guards during the progress of the work, or after its completion, the defendant was guilty of gross negligence, and the structure itself became unlawful. Concede that the defendant might cast the blame on the contractor while the area was being constructed, still it is clear to a demonstration that he cannot successfully make that answer for his own negligence after the work was completed, and the control and oversight of the contractor had ceased.

Looking at the case in any point of view, there is no error in the record.

JUDGMENT AFFIRMED, WITH COSTS.

* Hole v. Railway Co., 6 Hurlstone & Norman, 497; Ellis v. Gas. Cons. Co., 2 Ellis & Blackburn, 767; Newton v. Ellis, 5 Id. 115; Lowell v. B, & L. Railroad, 23 Pickering, 24; Storrs v. City of Utica, 17 New York, 104.

Opinion of the court.

UNITED STATES v. MCMASTERS.

1. It is the duty of a party excepting to evidence to point out the part excepted to, so that the attention of the court may be drawn to it. Hence objections of a very general and indefinite nature to testimony taken under a commission, with interrogatories, and which do not point out except in gross the portions of the answers objected to, and which embrace matters clearly competent, will not be sustained. If the exception covers any admissible testimony, it is rightly overruled.

2. A grant in whose language there is some obscurity, and which if open for construction might present some ground for an interpretation in one way, may, on a question of location, be explained in a different sense by an official survey referred to in it, and which was before the party when making the grant.

3. A tract of land, situate in the Parish of St. Bernard, about ten miles below New Orleans, and claimed in this suit against the United States by parties under F. & J. Phillipon, held to have been confirmed by this government, and that grants under the French and Spanish governments were as extensive and the boundaries as well defined and settled as they were under the survey and location confirmed by the United States.

THIS was a writ of error to the Circuit Court for the Eastern District of Louisiana, and involved two questions: one, that of a private boundary to a tract of land, the other a question of the admission of testimony taken under a commission.

The case was submitted on printed briefs of Mr. Stanbery, A. G., and Mr. Assistant Attorney-General Ashton, for the United States, plaintiff in error, and of Mr. Janin, contra.

Mr. Justice NELSON delivered the opinion of the court. This suit was brought, in the court below, by the United States to recover possession of a tract of land situate in the Parish of St. Bernard, about ten miles below the city of New Orleans, on the east side of the River Mississippi, and between that river and Lake Borgne.

The defendants set up two grounds of defence: 1. That the tract of land in controversy had been granted to Madame Le Compte by the Spanish government, November 3d, 1784; and, 2: That the grant was confirmed to F. and J. Phillipon

Opinion of the court.

by act of Congress, March 3d, 1835, from whom the defendants derived their titles.

1. The Spanish grant was produced on the trial from the register's office in New Orleans, where these ancient titles are deposited, and is found in the record.

The Governor, in making the grant, recites:

"Considering the foregoing proceedings, made by the segundo ayundante of this place, Louis Andry, who was appointed to make survey and put Dn. Maria Le Compte in possession of the vacant land which lies in rear or at the extremity of the forty arpents in depth of the plantation belonging to Bachemin, Corbin, Voison, and Portugais, and consists of fourteen arpents in front, composing the said plantations, until it reaches Lake Borgne; and, finding that said proceedings are made agreeably to the order of survey, and to the grants of the above-named parties, who are not injured-nay, who have assented thereto, &c.—Now, THEREFORE, &c., we do, by these presents, "grant to the said Maria Le Compte the above-mentioned fourteen arpents front from the forty arpents in depth owned by the said Bachemin, &c., to the aforesaid lake, following the same directions which the boundary lines of the said Bachemin, &c., run, in order that she may dispose of and enjoy the same, &c."

There is some obscurity in the language of the grant, and, if it was open for construction, there is ground for the interpretation contended for by the government, namely: that the tract granted consisted of an area of fourteen arpents front, and extending back within parallel lines to Lake Borgne. But this obscurity is removed by the official Spanish survey referred to in the grant, and which, as we have seen, was before the government when the grant was made.

Phelps, a United States deputy surveyor, and who has been in the service of the government, under the SurveyorGeneral, since 1828, surveyed the side lines of this tract in 1831, and, according to his recollection and belief, had before him, at the time, the original Spanish survey of Landry, and followed the side lines of that survey, which were not parallel, but were diverging side lines, corresponding with