Page:Federal Reporter, 1st Series, Volume 4.djvu/196

 182 FEDBBAL BEPOETEB. �owQ expanse and- for his benefit, to run and operate the mill for a determinate period, without interference or control from Clifford or any one, Clifford divesting himself of the control for the time being for the purposes indicated in the contract ; and this is essentially what constitutes a lease, aud is incon- sistent with the relation of master and servant. �Apply any of the usual tests: Could Clifford, any time duriûg the running season of 1877, turn Dodge out of the mill, or deprive him of the control of it ? Or could he con- trol Dodge in the running of the mill ? Could he, under the contract, say to Dodge, "This mill must be run on such and such days, and during such and such hours, and not other- wise ? If there is a dry time, or the wind is likely to corne up, no fire shall be made and the mill must not run," Could he say who should be hired and who not, or how many hand» should be employed, or what each should do, orregulate their time or wages, or judge of their competency ? Could he dis- charge, or compel Dodge to discharge, an incompetent or care- less hand employed in the management of the mill in those- very respects ■ wherein the negligence of a workman might cause damage to third persons? We believe he could not exercise such control, or do any of these things, under the contract; but that, on the contrary, Dodge was entitled to the possession and management of the mill during the life of the contract as against Clifford and ail the world. But if he could not control Dodge in the running of the miU, Dodge was not his servant, and it is difScult to see on what prin- ciple of justice Clifford can be made liable for the personal negligence of those whom he has no authority to control. If Dodge had been a hired servant by the day or month, Clifford would Lave had fuU control of his actions and the men em- ployed in the mill. He could then say how and when the mill should be run. In such case it would be but simple justice to impute the negligent acts of the servant done in the course of his employment to the master, and hold him liable for the consequences, �Again, suppose there were other expanses attonding the ����