THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW O. >k A^* A^t.-*>^> ^ (Lif(.C. ^^^ sKLKc iioN nr r \L'S, the purpose has been to furnish material fur the »tuily of the principal topics of Agency, including some topics frequently classed under the head of Master and Servant. As far as practi- cahle, use has been made of those famous cases with whicli it is peculiarly important that the student should become acquainted. The order of the chapters and of the sections has been determined, not by the vie^vs of analyticiil jurists or of codiliers, but by tiie sup|>osed convenience of stu- dents ; and consequently the plan has been to place in close juxtaposition topics that throNv light upon one another, and to present the easiest and the most fundamental topics as early as possible. The cases as to each topic have been arranged chronologically. The statements by the report- ers, and the opinions of the judges, have been reprinted in full, with exceptions indicated in the foot-notes; but the arguments of counsel have usually been omitted. The citations in the foot-notes have been intended to include only such cases as may profitably be examined by students. Thanks are due to Professor "William A. Keener, of the Columbia Law School, and Professor Jeremiah Smith, of the Harvard Law School, for cordial permission to use lists of cases prepared by them. It is matter of regret that it 671018 IV PREFACE. is impossible to acknowledge, otherwise than in the most general terms, indebtedness to the very numerous other workers — counsel, judges, reporters, digesters, text-writers — from whose labors, covering several centuries, the com- piler has derived aid at every step. EUGENE WAMBAUGH. Afbil 23, isdaw TABLE OF SUBJECTS. Sectiox Section I. II. Section III. Section IV. Section V. CHAPTER I. INTRODUCTORY TOPICS. PAQB Qui facit per alium facit per se i Who can be an Agent. (A) General Principles 2 (B) Infancy 7 (C) Coverture 9 (Z)) The Statute of Frauds . 10 Who can be a Principal. (A) General Principles 15 (B) Infancy 17 (C) Coverture 23 What Acts can be done through an Agent . . 33 How AN Agent is Appointed. (A) General Principles 42 (5) Appointment to execute an Instrument within the Statute of Frauds .... 52 (C) Appointment to execute a Specialty . . 58 CHAPTER II. THE AGENT'S POWER TO SUBJECT HIS PRINCIPAL TO LIABILITIES. Section I. The Rise of the Doctrine 79 Section II. Torts 95 Section III. Contracts 253 Section IV. Misrepresentation, Fraud, and kindred Topics COMMON to Torts and Contracts 358 Section V. Crimes 429 Section VI. Admissions 447 CHAPTER III. THE AGENT'S RESPONSIBILITY TO STRANGERS. Section I. Torts 4fi9 Section II. Unauthorized Contracts 494 Skction m. Authorized Contracts for a disclosed Principal 525 V^l TABLE OF SUBJECTS. Section I. Section II. Section III. CHAPTER IV. PARTIES TO WRITINGS. Instruments neither Negotiable nor Sealed Sealed Instruments Negotiable Instruments rAOB 548 583 601 CHAPTER V. UNDISCLOSED PRINCIPAL. Section I. Whether the Principal can hold the Third Party 627 Section II. Whether the Third Party can hold the Prin- cipal 636 Section III. Whether the Third Party can hold the Agent 658 Section IV. Whether the Agent can hold the Third Party 664 Section V. Defences. (A) In an Action brought by the Principal against the Third Party 673 (i>) In an Action brought by the Third Party AGAINST the PRINCIPAL 692 (C) In an Action brought by the Third Party AGAINST THE AgENT 723 (D) In an Action brought by the Agent against THE Third Party 729 CHAPTER VI. THE PRINCIPAL'S DUTIES TO THE AGENT. Section I. Reimbursement or Indemnity 741 Section II. Responsibility for Injuries. (A) The Fellow-Servant Rule 773 {B) Suitable Appliances, Agents, Premises, AND Regulations. And herein of the Vice-Principal Doctrine 824 CHAPTER VII. THE AGENT'S DUTIES TO THE PRINCIPAL. Section I. Obedience, Diligence, and Skill 882 Section II. Loyalty 904 TABLE OF SUBJECTS. Vll CHAPTER VIII. DELEGATION BY AN AGENT. Section I. The Rule Section II. Exceptions, real or apparent PAGE 928 935 CHAPTER IX. TERMINATION OF AGENCY. Section I. Modes of Termination. (^4) Revocation (B) Death (C) Some other Modes of Termination Section II. Irrevocability 953 957 962 973 CHAPTER X. RATIPTCATION. Section I. Early Authorities 986 Section II. The Requisites of Ratification 989 Section III. The Possibility of Ratification as affected by the Rights of Persons other than the Quasi- Principal 1034 INDEX 1059 TABLE OF CASES. [In addition to the cases reprinted in the text, this Table includes the cases quoted ic the foot-notes.] Abbey v. Chase 592, n. Adanison r. Jarvis 754 Addison v. Gandasequi 52"J Ahern v. Baker 'J12 Alford V. Eglisfield 548 Aldrich v. B. & W. Railroad Co. . 202 Allen V. Merchants' Bank .... 93tj Ancona v. Marks 1014 Anderson v. Sanderson 450 Anonymous (15 East, 407) . . . 279, n. (Fitz. Abt., Annuitie, pi. 51) . 1 (Godbolt, 109, pi. 129) . . . 987 (12 Mod. 514) 87 (IStr. 527) 92 (Y. B. 7 H. IV. 34) .... 987 V. Harrison 953 Armory v. Delamirie 92 Armour v. Michigan Central Rail- road Co 418 Armstrong v. Stokes 704 Ashworth v. Stanwix 795 Atkinson v. Cotesworth 729 Attwood V. Munnings 286 Audley v. Pollard 988 Baines v. Ewing 334 Baird v. Shipman 491 Baldwin v. Potter 905, n. Ballou V. Talbot 494 Baltimore & Ohio Railroad Co. v. Baugh 872 Bank of New York v. Bank of Ohio 606 Barlow *;. Congregational Society . 609 Barnard v. Coffin 934^ n. Barr v. Lapsley 42 Bartholomew v. Dighton .... 17 Bartonshill Coal Co. v. Reid . . 793, n. Barwick v. English Joint Stock Bank 412 Bateman v. Phillips 548 Batty V. Cars well 266 Baxter v. Bnrfield 957 Beaulieu v. Finglam 79 Beckham v. Drake 647, n. Bell V. Josselyn 478 V. McConnell 913 Bennett r. Bayes 479 Bentley v. Doggett 345 Bibb V. Allen 768, n. Biggs V. Evans 355 Bird V. Boulter 12 V. Brown 1040 Bhicknall v. Parish 62 Blaikstone v. Buttermore .... 983 Bliss V. Sneatii 739 Bodine c. Killeen 30 Bolton Partners v. Lambert . . . 1053 Booth L-. Mister 936 Borcherling v. Katz 647 Borries v. Imperial Ottoman Bank . 678 Boson V. Sandford 82 Botteler v. Newport 18, n. Boulton V. Arlsden 84 Bowler v. O'Connell 248 Bradstreet r. Baker 598 Brady v. Todd 328 Bray v. Kettell 559 Bridges v. Savage 906, n. Brinley r. Mann 593 Britisli Mutual Banking Co. i'. Cham- wood Forest Ry. Co 425 Brodeur v. Valley Falls Co. . . . 820 Brook r. Hook 1024 Brookshire r. Brookshire .... 953 Brucker v. Fromont 95 Burns v. Poulsom 214 Bush V. Steinman 98 Byington v. Simpson 582 Calder v. Dobell 564 Camden Safe Deposit and Trust Co. V. Abbott 349 Campbell v. Reeves 933, n. Carpenter v. Farnsworth .... 618 Caswell V. Cross 226 Catlin V. Bell 929 Chandler v. Coe 573 Chapman v. N. Y. C. Railroad Co. . 183 Chase v. Debolt 660 Chastain )•. Bowman 3 Child V. Morley 741 TABLE OF CASES. Chisholm v. Doulton 438, n. City Bank v. Barrow .... 253, n. Clarke v. Holmes 806 Cleveland, Columbus, & Cincinnati liailroad Co. v. Keary . . . 829, n. Clifford V. Burton , . 451 Clough I'. Clougli 68 Cobb V. Knapp 726 V. Superior Court 5 Coben v. Kittell 902 Collen V. Wriglit 506 Combes' Case 33 Commercial Bank v. Norton . . . 939 Commonwealtli v. Briant .... 445 V. Gillespie 447, n. V. Morgan 439 V. Nichols 435 V. Wacbendorf 438, n. Cooke V. Esiielby 687 Corcoran v. Holbrook 857 Cornfoot v. Fowke 358 Cothay v. Fennell 628 Covell f. Hart 545 Craker v. C. & N. W. Ry. Co. . 165, n. Cream City Glass Co. v. Friedlander 558, n. Cribben v. Deal 74 Crispin v. Babbitt . 859 Culien V. Thomson's Trustees . 489, n. Curtis V. Williamson 713 D'Arcy v. Lyle 747 Darling v. Stanwood 938, n. Davenport v. Riley 659 Davis I'. Hamlin 917 Davison r. Donaldson .... 720, n. De Bussche i-. Alt 934, n. Delaney v. Rocbereau .... 487, n. Dempsey v. Chambers 1030 Denny v. Manliattan Company . . 473 Dickerman v. Asliton 67 Dodge v. Hopkins 1044 Dorchester & Milton Bank v. New England Bank 942 Dord V. Bonnaffee 1004 Drew V. Nunn 967 Duncan v. Beeson 760 V. Hill ^760 Dynen v. Leach 833, n. Edmunds v. Bushell 331 Edwards r. Golding 686, n. Elbinger Actien-Gesellschaft v. Claye 542 Eldridge v. Atlas Steamship Co. . 868 Ellis V. Sheffield Gas Consumers Co. 148 Emerson v. Blonden 9 Emmerson v. Heelis 53 Empire State Ins. Co. v. American Central Ins. Co 917, n. Evans v. Davidson 231 V. Evans 550 Page Fairlie v. Fenton 561 V. Hastings 447 P'arebrother v. Simmons .... 11 Farwell v. Boston & Worcester Rail- road Corp 786 Feltus V. Swan 489 Fenn v. Harrison (3 T. R. 757) . . 254 — V. Harrison (4 T. R. 177) . . 259 Firbank v. Humphreys 517 Fisher v. Cuthell 1084 V. Marsh 558, n. Flike V. Boston & Albany Railroad Co 853 Ford V. Fitchburg Railroad Co. . . 850 Forney v. Sliipp 723 Foster v. Bates 1000 Freeman r. Cooke 51, n. V. Rosher 1003, n. Gadd V. Houghton 578 Gannon r. Housatonic Railroad Co. H03 Gardner v. Baillie 260 1-. Davis 666 V. Gardner 61 Garth v. Howard 452 George v. Clagett 674 Gibson f. Erie Ry. Co 841, n. V. Winter 730 Gilshannon v. Stonv Brook Railroad Corp. . . . '. 794 Grammar i". Nixon 93 Grant v. Beard 1021 V. Norway 368 Great Western Railway Co. v. Willis 456 Greenfield Bank r. Crafts . . . 1026, n. Griggs V. Griggs 960 Guerreiro ?•. Feile 282 Gurratt v. CuUum 628, n. Gwilliam r. Twist 951 Hagedorn i-. Oliverson 1037 Haluptzok V. Great Northern Ry. Co. 947 Hardy v. Waters 22 Harper i-. Little 958 Hatcli V. Taylor 291 Hathaway v. Johnson 415 Hawtayne v. Bourne 301 Hazard v. Treadwell 253 Heald v. Kenworthy 692 Henchman v. Roberts 28 Hern v. Nichols 90 Hibblewhite v. McMorine .... 58 Higgins V. Senior 654 Hill 1-. Caverly 471 V. Morey 149 Hobbit V. L. & N. W. Ry. Co. . . 184 Hogg V. Snaith 269 Hopkins v. Mehaffy 590 Hornby v. Lacy 675 Horner i'. Lawrence 483 Hough I'. Railway Co 841, n. Houston & Great Northern Railroad Co. V. Miller 81? TABLE OF CASES. XI Page Howard v. Baillie 261 Howe i\ Newmarch 18-1 Howe Macliine Co. v. Clark ... 462 Humble V. Hunter 629 Hunt V. Rousmanier 974 Huntington v. Knox 634 Hurst V. Holding 744 Hutcliinson i*. Wheeler 725 V. York, Newcastle, & Ber- wick Ry. Co 828, n. Hyde v. Johnson 37 Illinois Central Railroad Co. v. Latham 2o0 Insurance Co. v. Davis 962 Irvine v. Watson 715 Isberg V. Bowden 734 Isham V. Burgett 656 Jenkins v. Hutchinson 503 Joel V. Morison 117 Johnson v. Barber 475 v. Boston Tow-boat Co. . . . 862 V. Dodge 56 V. Johnson 960 Johnston i'. Kersliaw 896 Jones V. Littledaie 552 Joseph V. Knox 664 Kayton v. Barnett 652 Kelner v. Baxter 1016 Kendall v. Hamilton 702, n. Kindig v. Marcli 983 Kingsley v. Davis 702 Kirkpatrick v. Stainer 631 Kirkstall Brewery Co. v. Furness Railway Co 458 Knapp V. Alvord 979 Knaus v. Krueger Brewing Co. . 917, n. Kroeger v. Pitcairn 509 Lane v. Cotton 468 Lanlarazon's Case 986 Laugher v. Pointer 105 Lawrence v. M'Arter 18 V. Shipman 210 Leadbitter v. Farrow 602 Lerned r. Johns 645 Lewis V. Nicholson 504 V. Read 1001 Liebsclier v. Kraus ...... 624 Lilly V Smales 524 Limpus V. London General Omnibus Co 170 Little Miami Railroad Co. v. Stevens 824 Long V. Colbum 601 Loomis V. N. Y., N. H., & H. Railroad Co 464 V. Simpson 931 Lovell V. Howell 810 Lnbv V. Hudson River Railroad Co. 455 Page Ludwig v. Gillespie 672 Lux V. Shipman 210 McGilvray v. West End St. Ry. Co. 251 Mclntyre v. Park 993, n. Maclean v. Dunn 993 McManus r. Crickett 102 Maitland v. Martin 762 Marshall, In re 935 Martin ;•. Great Falls Mfg. Co. . . 288 V. Temperley 129 May V. Bliss 1-38 Meader v. Page 44 Meehan i\ Forrester 1003, n. Meek v. Wendt 521 Membery v. Great Western Ry. Co. 871, n. Merrill v. Kenyon 720 Merryweather v. Moore 924 Michael v. Alestree 82 Michell V. Allestry 82, n. Michil V. Alestree 82, n. Middleton v. Fowler 86 Miller y. Lea 691, n. Milhken v. Coombs 990 Mitchell V. CrasswuUer 144 .Mohr V. Miesen 769 Moir V. Hopkins 155 Morier v. St. P., M., & M. Ry. Co. . 238 Morse y. Connecticut River Railroad Co 454 Murphey v. Caralli 180 Murray v. Currie 206 V. South Carolina Railroad Co 777 Mussey v. Beecher 311 Nelson v. Powell 092 New York and New Haven Railroad Co. V. Schuyler 387 Nickson v. Brohan 90 North River Bank r. Aymar . . . 303 Northwestern Distilling Co. v. Brant 596 Opie V. Serrill 892 Osborne v. Morgan 484 Oulds V. Sansom 23 Owen V. Gooch 525 Packet Company v. Clough . . . 459 V. McCue 805 Page V. Methfessel 47 1-. Webb 923 Palliser i;. Ord 928 Parker v. Brancker 887 Paterson v. Gandasequi 527 V. Tash 253 V. Wallace 828, n. Patten v. Rea 157 Patterson v. Lippincott 514 Peck V. Harriott 283 Peele v. Hodgson 636 xn TABLE OF CASES. Page Pentz V. Stanton 643 People V. Koby 442 Peto V. Hague 450 Phelon r. Stiles 224 Phelps V. Sullivan 72 Philadelphia & Reading Railroad Co. V. Derby 139 Philadelphia, Wilmington & Balti- more Railroad Co. v. Cowell . . 1008 Phosphate of Lime Co. v. Green 1003, n. Pickard v. Sears 51, n. Pickering v. Busk 272 Pike V. Ongley 662 Pole V. Leask 51, n. Polhill V. Walter 496 Portuguese Consolidated Copper Mines, I?i re 1058, n. Poulton V. L. & S. W. Ry. Co. . . 191 Price V. Taylor 604 Priestley v. Fowler 773 Priestly v. Fernie 698 Quarman v. Burnett 125 Quinlan v. Providence Washington Ins. Co 350 Rabone v. Williams 673 Railton v. Hodgson 636 Railway Co. v. Ranney .... 829, n. Rames v. Machin 18 Rann v. Hughes 52, n. Read v. Anderson 765 Rechtscherd v. Accommodation Bank 900 Reedie i'. L. & N. W. Ry. Co. . . 134 Rex V. Almon 429 ». Medley 432 Reynell v- Lewis 51, n. Rh'oades i'. Blackiston 736 Right d. Fisher v. Cuthell .... 1034 Robertson v. Cloud 955 Robinson v. MoUett 908 Rogers v. Ludlow Mfg. Co. • . 866, n. Roosevelt v. Doherty 681 Rossiter v. Trafalgar Life Assurance Association 933, n. Rounds v. D., L. & W. Railroad Co. 218 Rourke v. White Moss Colliery Co. 229 Ruddiman v. Smith 237, n. Rutland & Burlington Railroad Co. i\ Lincoln 1007 Ryan v. C. & N. W. Ry. Co. . . . 800 Sadler v. Henlock 152 Schmaltz v. Avery 631 Scott V. Surman 628, n. Scrimshire v. Alderton 627 Seiple V. Irwin 322 Serle de Lanlarazon's Case . . . 986 Seymour i'. Greenwood 166 Short V. Spackman 667 Simon v. Motives 658 Sims V. Bond 666, n. Page Singer Mfg. Co. v. Ralm .... 240 Skipp V. Eastern Counties Ry. Co. . 831 Sleath V. Wilson 122 Smith V. Cologan 989 I'. McGuire 324 V. Steele 808 Smout V. Ilbery 499 Staples V. Schmid 243 Stead V. Thornton 15 Stebbins v. Walker 684 Stephens v. Badcock 929 Stetson V. Patten 992 Stevens v. Woodward 234 Stewart v. Woodward 342 Stinchfield v. Little 586 Stone V. Cartwright 470 Storey v. Ashton 204 Strasser r. Conklin 1028 Sturdivant r. Hull 619 Sumner v. Conant 24 Sutton, Ex parte 935 Swainson v. North-Eastern Ry. Co. 813 Switzer v. Connett 902, n. Taft V. Brewster 585 Tarrant i'. Webb 834 Temple r. Pomroy 319 Tenant v. Elliott 904 Thompson v. Havelock 907 Thomson ;•. Davenport 637 Thorner. Deas ......... 883 Thorold v. Smith 88 Toledo, W. & W. Ry. Co. v. Harmon 198 Trueman v. Loder 578, n. Tucker Mfg. Co. v. Fairbanks . . 614 Turberville v. Stampe 84 Udell V. Atherton 374 United States Telegraph Co. v. Gil- dersleve 668 Upton V. Suffolk County Mills . . 316 Vose V. Dolan 65 Wabash Rv. Co. v. McDaniels . 867, n. Walsh I'. Whitcomb 973 Walter v. James 1049 Waples V. Hastings 20 Ward V. Evans 87 V. Smith 339 Watkins v. Vince 7 Watson V. King 979, n. Watteau r. Fenwick 654 Wayland's Case 83 Weber r. Weber 488 Weed V. Panama Railroad Co. . . 162 Weisbrod v. C. & N. W. Ry. Co. . . 28 Weyland v. Elkins 104 Whatman r. Pearson 196 White V. Duggan 70 V. Sanders 1003 TABLE OF CASES. XIU Page Whitehead v. Greetham .... 885 V. Tuckett 277 Whitfield V. Lord Le Despencer . . 469 Whiting V. Massachusetts Mut. L. Ins. Co 1051 Wliitley Partners, In re u'J Wiiittingharn's Case 17 Widrig V. Taggart 7 Wilkinson v. Coverdale 882 Wilks V. Back 583 Williams v. North China Ins. Co. 1040, n. Williamson r. Barton 535 Wilson r. Brett 890 V. Merry 842 V. Tumman 997 V. Wilson 902, n. Wiltshire v. Sims 268 Page Wolff w. Koppel 893 Wood V. Cobb 190 Woodley v. Metropolitan District Ky. Co 833, n. Worthington v. Cowles 640 Wright V. Dannah 10 V. Wilcox 118 Y. B. 30 E. I. 126 . Y. B. 2 H. IV. 18 . Y. B. 7 H. IV. 34 . Y. B. 21 H. VI. 31 Zouch V. Parsons . 79 . 987 18, n. 18, n. CASES ON AGENCY. CHAPTER I. INTRODUCTORY TOPICS. SECTION I. Quifacit fer aliumfacit per se. ANONYMOUS. Common Pleas. 1304-5. [Fitzherbei-t's Abridgment, Annuitie, pi. 51.] AiJOJTJiTY against the heir upon a deed of gi-ant made by the father antil the plaintiff^ was advanced bj'the grantor or his heirs to a suitable benefice. Tilton. After the death of our father our mother gave to the plaintiff, by our procurement and to discharge us, the deanery of T., of which the plaintiff is still seised. Herle. The writing is, until he be advanced " by the grantor or his heirs," and so we are not, &.Q. Hengham [C. J.]. Qui per alium facit per se ipsum facere videtur, and have care that he answer over. Herle. The mother of the defendant gave us the benefice for our service, and not in discharge of the annuit}'. Read}'. And the other side said the contrary', &c. 1 Among the rules appended to the Sext, promulgated hy Pope Boniface VIII. in 1298, are the following: " lxvii. Quod alicui suo non licet nomine, nee alieno lice- bit. Lxviii. Potest quis per alium, quod potest facere per se ipsum. . . . lxxii. Qui facit per alium, est perinde, ac si faciat per se ipsum." Sexti Decretalium, lib. v. tit. xii., De regulis juris, according to the text of Friedberg's edition of the Corpus Juris Canonici, vol. II., column 1124. See 1 Pollock & Maitland's History of English Law, 9.3, 196. — Ed. - Fitzherbert says defendant ; but that appears to be an error. — Ed. 'f- 1 3 WHO CAN BE AN AGENT. [CHAP. L West's Symboleography, part I., sec. 3, Of the Fact 0/ 3Ian (1590) : Now the fact of that person, and the person himselfe, are to be considered. The fact is the covenant or agreement, or the offence, which two are the onely way making obhgations. The person is hee which either agreeth or offendeth, and beside him none other. And both may be bound either mediatly or imraediatly. Immediatl}', if he which is bound do agree. Mediatly, wlien if he which by nature differeth from him, but not by law, whereby as by some bond hee is fained to be all one person, doth contract or offend, of which sort in some cases be those which be in our power, as a wife, a bondman, a servant, a factor, an Atturnej', or Pro- curator, exceeding their authoritie. SECTION 11. Who can he an Agent. (^) General Principles. Perkins' Profitable Book, sees. 184-187 (1532) : — 184. All such persons as can grant for themselves maj' make livery of seisin for themselves, viz. in their own right, and as servants to others, in the same manner and form as they may grant, &c., mutatis mutandis, &c. , . . 185. And as to such persons as cannot make livery of seisin in their own right, but ma^' as servants to others, know, that a monk, friar, or canon, &c., professed,^ or a married woman, cannot make livery of seisin for themselves, viz. in their own right ; and if they make any liver}- of seisin in their own right, it is void ; because per- sons professed in religion cannot have any land in their own right, except he be severed from the same house of religion, &c. 186. And although a married woman ma}' be seised in her own right with her husband, j'et livery of seisin made hy her alone, without the agreement of her husband, is void ; insomuch that notwithstanding such livery of seisin, her husband and she may have an assise, if he be seised of the freehold in her right : but in such case, if the husband be seised in his own right, then notwithstanding such livery of seisin made by his wife, he shall have an assise in his own name, &c. 187. But if a monk or other person professed in religion, or a feme covert, make livery of seisin according to the deed of a person able to make a feoffment in his own right, and by a letter of attorney made to * On civil death, see 1 Pollock and Maitland's History of English Law, 4 16-4 "21. — Ed. SECT. II.] CHASTAIN V. BOWMAN. 3 him or her bj' the same feoffor so to do, then such feoffment is good ; because the feoffee in such case is not in in the land by him or her that made the livery of seisin, but by the feoffor. . . . Coke on Littleton, 52 a (1628) : — Few persons are disabled to be private attorneyes to deliver seisin ; for mounks, infants, fem coverts, persons attainted, outlawed, excom- municated, villeins, aliens, &c., ma}- be attorneyes. A fem may be an attorney to deliver seisin to her husband, and the husband to the wife, and he in the remainder to the lessee for life. Coke on Littleton, 187 b (1628) : — Albeit baron and feme (as Littleton here saith) be one person in law, so as neither of them can give an}- estate or interest to the other, yet if a charter of feoffment be made to the wife, the husband as attur- ne}' to the feoffor may make liverie to the wife ; and so a feme covert, that hath power to sell land by will, ma}' .sell the same to her husband, because they are but instruments for others, and the state passeth from the feoffor or devisor. CHASTAIN V. BOWMAN. Court of Appeals of South Carolina. 1833. [I mil's S. Car. Law, 210.] Tried before Mr. Justice Evans, at Abbeville — Spring Term, 1833. This was an action on the case, against the defendants as common carriers on the Savannah River, for a loss sustained by the burning of the plaintiff's cotton on board their boat. The boat was passing down the river when the plaintiff came to a landing, and asked if it could carry his cotton. The patroon (a slave belonging to one of the defendants) answered that it could. The cotton was received, and was burnt on board the boat before it reached Augusta. It w-as proved that the de- fendants had given general instructions to their patroons to take in freight whenever it could be had, and that, in one instance, one of the defendants had received pay for freight engaged by his patroon. There was also some evidence to show the general custom of the river. Some witnesses proved that it is the custom to allow patroons to take in freight generally, and others, that they are only allowed to receive freight when a boat is not fully laden. The presiding judge charged the jury that the defendants were not liable unless the patroon was his master's agent, and authorized to take in freight ; that the authority might be proved by showing that such was the custom of boat owners, or by proving that the defendants had given such authority ; that to establish a custom, it must be proved to be universal ; that a slave might be the agent of his master, and, if his agency was established, the master was bound ; and whether the agency 4 CHASTAIN V. BOWMAN. [CHAP. I. of the slave was established in this case, was a question submitted to their decision. The jury found for the plaintiff, and the defendants appealed, and move for a new trial on the ground of error in the charge of the presiding judge. Johnson, J., delivered the opinion of the court. From the instructions given to the jury, it is more than probable that they found tlie verdict on the ground that the defendants had constituted their patroon, tlie slave Jaclc, their agent to contract with the plaintiff for carrying his cotton, and on that ground it can be well sustained. It is not questioned that a master may constitute his slave his agent, and I cannot conceive of any distinction between the circumstances which constitute a slave and a freeman an ogent, — they are both the creatures of the principal, and act upon his authority. There is no con- dition, however degraded, which deprives one of the right to act as a private agent ; the master is liable even for the act of his dog done in pursuance of his command. Two witnesses. Beck and Eaton, prove that defendants had given general instructions to their patroons to procui'e freight whenever they could, and in one instance it is shown that one of the defendants received the price of freight on produce so received and carried bj* the patroon, a distinct recognition of their authority to con- tract for them ; and there is not a tittle of evidence that this authority was ever rescinded. The authority was general as to that particular business, and the contract to carry was directly in pursuance of it. The defendants were therefore bound. The proof of the custom appears to me to have been too equivocal to have supported the verdict on that ground alone. To make a good custom it must be proved to be general ; and if the proof had l)cen that those concerned in the navigation of the Savannah River had, from time immemorial, authorized and permitted their slave patroons to contract for carrying freight, the defendants would have unquestionably been bound by it ; but the proof here, with the exception of one witness, is confined to particular instances, and it is not very obvious that that witness clearly understood what is meant by a general custom. Motion dismissed. Harper, J., absent. Wiirdlaw, for the motion. Calhoun, contra. SECT. II.] COBB V. SUPERIOR COURT OF GRAND RAPIDS. COBB, Relator, v. JUDGE OF THE SUPERIOR COURT OF GRAND RAPIDS. Supreme Court of Michigan. 1880. [43 Mich. 289.] Mandamus. Submitted April 13. Decided April 14. Smiley^ for relator. Maher^ for respondent. Marst(in, C. J. In a cause pending in the Superior Court of Grand Rapids some of tlie defendants appeared b}' an attorney and afterwards, at tlieir request and witli the consent of their attorney, a substitution was made under which a third person not an attorney of the court appeared in the cause as their agent. The present motion raises the right of a party to appear in a court of record by an agent who is not an attorney duly licensed to practise as such. It was claimed on the argument that parties have such right under sec. 24, art. vi. of the Constitution. Under the legislation in force at the time of the adoption of the Con- stitution no person was permitted to practise as an attorney or coun- sellor at law, except in the county court, or as a solicitor or counsellor in chancery, unless approved by the court for his good character and learning, and duh* admitted. The Supreme Court was authorized to grant to any citizen of the State, of good moral character and of the age of twenty-one years, a license to practise as an attorney, upon an examination, if satisfied that the applicant possessed sufficient legal learning and ability to dis- charge the duties of such office. Such attorney is required to take the constitutional oath of office, and may be removed or suspended by the several courts in which he is authorized to practise. 2 Comp. L. § 5622 et seq. These and other provisions then and still in force show how carefully the right to practise as an attorney was guarded, not in the admission to practise alone, but in regard to their standing and retain- ing such rights thereafter. This legislation and our entire practice relating to attorneys has always been observed, and was never sup- posed to conflict in any way with the constitutional provision referred to. Our rules of practice in reference to the service of papers are framed upon the same theory, and do not recognize the right of parties to appear by agents or persons who are not attorneys and solicitors of the court, and we are of opinion that the word " agents" as used in the Constitution does not give the broad authority claimed by the respond- ent in this case. The Constitutional Debates referred to on the argu- ment throw no real light upon this question. If the word " agent" as used in the Constitution, is not to be con- strued as synonymous with the word " attorney," what is to be the 6 COBB V. SUPERIOR COURT OF GRAND RAPIDS. [CHAP. L result? Parties may appear by agents possessing no legal qualification or even ordinary intelligence, and of the worst possible character; tliey ma}* be minors, and may even be persons who liave been disbarred and removed bj' this court from practising as attorneys and solicitors. They could not practise as attorneys, po'ssessing neither the legal nor moral qualifications for such a position, and yet they could appear as agents. They would possess the rights of attorneys, but not be subject to the responsibilities ; their removal by the court, if they could be removed, would be a mere idle ceremony. Litigants might again em- plo3' them and authorize them to appear and represent their interests, so that persons who could not practise as attorne3's could as agents, with equal rights and powers. Such could not have been the intention of the fraraers of our fundamental law, or of the people in adopting it. There are still additional reasons for this view. Attorneys are licensed because of their learning and abilit}', so that they may not only protect tlie rights and interests of their clients, but be able to assist the court in the trial of the cause. Yet what protection to clients or assistance to courts could such agents give? They are required to be of good moral character, so that the agents and oflficers of the court, which they are, may not bring discredit upon the due administration of the law ; and it is of the highest possible consequence that both those who have not such qualifications in the first instance, or who having had them have fallen therefrom, shall not be permitted to appear in courts to aid in the administration of justice. One of the principal powers possessed b}- courts for the protection of the public, and to maintain the high standing, character, and reputation of the bar, is the right to expel members who have been shown guilty of immoral acts, thus rendering them unworthy to longer retain their position as officers of the court. This court has had occasion heretofore to disbar attor- neys convicted of crime, or shown guilty of some serious offence. Such persons can no longer a[)pear as attorneys in any court of record, and it is equally clear that they would have no right to appear, and should not be permitted to represent an}' person in court, either as attorne3-s, agents, or otherwise. If the}' have such power or right their position is better than before, and the judgment of this court is practicall}' of but little force or effect. An examination of the opinions of this court in the Matter of Mills, an attorney, 1 Mich. 392, and of the People v. May, 3 Mich. 598, will show the importance of this question. The writ must issue as pra^'ed for. The other Justices concurred.^ 1 The early history of attorneys at law may be traced in Glanvill, lib XI. ; Bracton de Legibus, fo. 3.34, 342-343; Statute of VVestniiuster II., 13 Ed. I., stat. 1, c. 10, s. 7; Fleta, lib. iv., c. vi., §7, lib. vi., c. vi., § 14, Ub. vi., c. ix., §§ 7, 9-11; Erittou, fo. 119 b, 120, 285 b-287. And see 1 Pollock and Maitland's History of Euglisli Law, 190-196. " Any suitor in any court of this state shall have the right to prosecute or defend his suit, either in his own proper person, or by an attorney or agent of his choice." Constitution of Michigan, art. vi., sec. 24 (1850). — Ec. SECT. II.] WIDRIG V. TAGGART. 7 SECTION II. {continued), (B) Infancy. WATKINS V. VINCE. Nisi Prius. 1818. [2 Starkie, 368.] This was an action on a guarantee by the defendant, b}- which, as was alleged, he had guaranteed to the plaintiff the payment for 100,000 bricks, to be supplied to one Hanipson. The guarantee was in the hand-writing of James Vince, the son of the defendant, a minor of the age of IG. It was proved that he had signed for his father in three or four instances, and that he had ac- cepted bills for him. Gurneij for the defendant objected, that this was too slight evidence of authority given to the son to warrant the receipt of the guarantee in evidence against the father; but — Lord Ellenborougii held, that this was sufficient priz/^a fade evidence, in the absence of any inducement on the part of the son to commit a crime. Gurney afterwards objected, that such a guarantee required a stamp ; but — Lord Ellenborougii overruled the objection, the guarantee being a contract relating to the sale of goods, and therefore within the excep- tion in the statute. Verdict for the 'plaintiff . Topping and V. Lawes^ for the plaintiff. Gurney^ for the defendant. JACOB WIDRIG, BY NEXT friend, v. LESTER B. TAGGART Supreme Court of Michigan. 1883. [51 Mich. 103.] Assumpsit. Defendant brings error. Affirmed. Cohb & Ely^ for appellant. Recoupment may be had against an infant suing for the value of his services. Moses v. Stevens, 2 Pick. 332; Thomas v. Dike, 11 Vt. 273; Hoxie v. Lincoln, 25 Vt. 210; Judkins v. Walker, 17 Me. 38 ; Vehuet;. Pinkham, 60 Me. 142. Geo. TP". Mead., for appellee. In an infant's action for the value of his services no deduction can be made for his own breach of the 8 WIDEIG V. TAGGAKT. [CHAP. I. contract of emplo^'ment. Whitmarsh v. Hall, 3 Den. 375 ; Derocher v. Continental Mills, 58 Me. 217 ; Robinson v. Weeks, 56 Me. 102 ; Vent V. Osgood, 19 Pick. 575 ; Gaffney v. Hoyden, 110 Mass. 137 ; Meeker v. Hard, 31 Vt. 642; Dallas v. Hollingsworth, 3 Ind. 537; Meredith v. Crawford, 34 Ind. 399 ; Ray v. Haines, 52 III. 485 ; Kearney v. Doyle, 22 Mich. 294. Graves, C. J. The plaintiff, a minor of the age of nineteen, labored as a farm hand for defendant from the last of March until the earl}' part of Jul}', a space of eighty-five days, and brought this action to recover for the service. The defendant had previously paid him $45. The jury found in his favor, and allowed him $5.87, and the defendant brought error to this court. At the trial the defendant proposed to recoup damages bj- showing that the labor sued for was performed under an express contract with the plaintilF to serv^e for seven months at $17.50 per month, and that he quit during the term and just before harvest ; but the court ruled out the defence. The plaintiff admitted he was not entitled to recover at as high a rate as $17.50 per month, and the circuit judge told the jury that the measure of recover}' would be what the services were worth at that season, after bearing in mind that the value might be less than in case the labor had been extended or continued through the summer. The value found by the jur}' was at the rate of $15.50 per month, — a sum less than the lowest value in the evidence. We discover no error. The plaintiff, in consequence of his infanc}', was not compellable to pa}' damages for withdrawing from his contract engagement. Recoup- ment is, in substance and effect, a cross-action, and unless the party whom it is attempted to subject to it could be compelled to respond for the damages by an independent action against him, he cannot be reached by recoupment ; and such was the position ot the plaintiff. Persons who contract with minors must understand that they do so at the risk of greater or less disadvantage. The adult binds him- self, but the infant does not. And the law has not found it possible to maintain these conditions of inequalit}', and at the same time secure to the adult the same measure of remedial right which obtains where both parties are of full legal capacity. The judgment must be affirmed with costs. The other Justices concurred.^ 1 And see Vasse v. Smith, 6 Cranch, 226 (1810); Moses v. Stevens, 2 Pick. 332 ^1824), Hoxie v. Lincoln, 25 Vt. 207 (1853). — Ed. SECT. II. 1 EMERSON V. BLONDEN. 9 SECTION II. (continued). (C) Coverture. EMERSON V. BLONDEN. Nisi Prius. 1794. [1 Esp. 142] Assumpsit for the use and occupation of certain rooms in the plain- tiff's house, which had been let to the defendant. The defendant and liis wife had taken the apartments at a certain rent, the wife had made the bargain, and had agreed to give three months' notice of quitting. Having quitted without notice, the action was brought to recover the three months' rent. A witness for the plaintiff proved a demand of the rent from the de- fendant's wife, and that she had acknowledged the sura claimed to be due, and had promised payment. Mingcuj, for the defendant, objected to this evidence, as it was ad- mitting the declarations of the wife, and her acknowledgment of debt to charge the husband. It was answered b}- the plaintiff's counsel, that the defendant having in the present instance permitted his wife to act for him, in making the agreement, and settling the terms upon which the lodgings were taken, that he had thereb}- constituted her his agent for that purpose, and should therefore be bound I)y her acts and admissions. Lord Kenyon said, that the rule of law had been correctly stated b}' the plaintiff's counsel, that where a wife acts for her husband in an}' business or department, by his authority and with his assent, that he thereby adopts her acts, and must be bound by any admission or ac- knowledgment made by her respecting that business, in which b}* his authority she has acted for him, and that therefore in the present case her admission of the debt due to the plaintiff, on account of the lodging, was competent and admissible evidence to charge the husband. Tlie plaintiff had a verdict. Erskine and Baldwin, for the plaintiff. Mingay, for the defendant. 10 WRIGHT V. DANNAH. I'CHAP. L SECTION II. (continued). (D) Tke Statute of Frauds.^ WRIGHT V. DANNAH. Nisi Prius. 1809. [2 Camp. 203.] Goods bargained and sold. Plea, the general issue. The action was brought for the value of four sacks of clover seed. The parties having met on tlie corn exchange in London, entered into a negotiation for the sale of this seed ; and after they had agreed on the price, the plaintiff wrote the following memorandum of the contract : — " Robert Dannah, Windley, near Derby. 4 sacks clover seed, at £6 18s. Per Fly Boat." After the plaintiff had written this memorandum, the defendant, who overlooked him while he wrote it, desired him to alter the figures 18 to 16, — £6 16s. being the price agreed on. This the plaintiff accord- ingly did. They then parted, the memorandum being left with the defendant. Park objected that this was not a sufficient memorandum within the statute of frauds, not being signed by the party to be charged by it, or his authorized agent.^ Garroio and Puller, contra, submitted that the defendant had made the plaintiff his agent for the purpose of signing the memorandum, by overlooking and approving of what he had written ; and they put the ease of a man incapable from disease or ignorance of writing for himself. Lord Ellenborough said the agent must be some third person, and could not be the other contracting party.* Plaintiff nonsuited. Garrow and Puller, for the plaintiff. Park, for the defendant. 1 The pertinent parts of the statute are reprinted post, p. 52. — Ed. 2 29 Car. 2, c. 3, § 17, enacts, "that no contract for the sale of any goods, &c., for the price of £10 or upwards, shall be good except, &c., or that some note or memo- randum in writing of the said bargain, be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." — Rep. 8 Ace: Sharman v. Brandt, L. R. 6 Q. B. 720 (Ex. Ch. 1871). — Ed. SECT. 11.] FAREBKOTIIER V. SIMMONS. 11 FAREBROTHER v. SIMMONS. King's Bench. 1822. [5 D tj- Aid. 333.] Assumpsit by the plaintiff, an auctioneer, against the defendant, for not taking or clearing away or paying tlie purchase-money, being £34, for a lot of turnips, standing and being on certain land. Second count, for crops of turnips bargained and sold, etc., and the usual money- counts. Plea, general issue. At the trial before Wood, B., at the last assizes for the county of Surry, the only question was, whether there was a sufficient contract in writing to satisfy the statute of frauds. It appeared that the contract given in evidence was the book in which the plaintiff himself had written down the different biddings opposite to the lots, and which book had been duly stamped. The learned Judge directed a verdict for the plaintiff, reserving to the defendant liberty to move to enter a nonsuit. Marryat, in last Michaelmas Term, obtained a rule nisi for that purpose, and cited Wright v. Danuah, 2 Camp. 203. Gurney and Abraham now showed cause. This was no interest in land ; for the turnips having ceased to grow, the land merely was a warehouse for them. But even if this be not so, the book is sufficient to take the case out of the statute. For the plaintiff may be considered as the agent of both himself and the defendant for the purpose of reduc- ing the contract into writing. The case of AVright v. Dannah is dis- tinguishable. There the party who wrote the memorandum was the person who made the sale for his own benefit. Here it is the ease of an auctioneer, who has no personal interest in the transaction. Abbott, C J. The most favorable way for the plaintiff is to treat the question as a case of goods sold and delivered ; and then, the goods being above the price of £10, the case will fall within the 17th section of the statute of frauds, which requires some note or memorandum in writing of the bargain, to be made and signed b}- the parties to be charged b}' it, or their agents, thereunto lawfully authorized. Now, the question is, whether the writing down the defendant's name b}' the plain- tiff, with the authorit}' of the defendant, be in law a signing b}' the de- fendant's agent. In general, an auctioneer may be considered as the agent and witness of both parties. But the difficult}' arises, in this case, from the auctioneer suing as one of the contracting parties. The case of Wright v. Dannah seems to me to be in point, and fortifies the conclusion at which I have arrived, viz., that the agent contemplated 63- the legislature, who is to bind a defendant by his signature, must be some third person, and not the other contracting party upon the record Hide absolute. 12 BIRD V. BOULTER. [CHAP. L BIRD V. BOULTER. King's Bench. 1833. [4 B. <^- Ad. 443.] Assumpsit for goods sold and delivered, and goods bargained and sold. Plea, the general issue. At the trial before Littledalk, J., at the Hereford Spring Assizes, 1832, it appeared that the goods in ques- tion (wheat, the property of one Smith) were a lot sold at an auction, and knocked down to the defendant by the plaintiff, who was the auc- tioneer, at a price exceeding £10. Tlie course pursued at this sale was, that the parties as usual signified their biddings to the auctioneer, who repeated them aloud ; and when the hammer fell, one Pitt, who attended as the auctioneer's clerk, called out the name of the pur- chaser, and, if the party assented, made an entry accordingly in the sale-book. In the present instance, the auctioneer having named the defendant as the purchaser, Pitt said to him, " Mr. Boulter, it is your wheat;" the defendant nodded, and Pitt made the entry in his sight, he being then within the distance of three yards. The question was, whether a note or memorandum of the bargain had been made, pur- suant to 29 Car. 2, c. 3, s. 17, In- the party to be charged, or his agent thereunto lawful!}- authorized. A verdict was taken for the plaintiff, and leave given to move to enter a nonsuit. A rule nisi having been obtained for that purpose, The Solicitor- General (with whom was "Whately) now showed cause. It is still, perhaps, vexata qucestio, whether sales b}- auction are within the seventeenth section of the statute of frauds at all, but see Kenwortby V. Schofield, 2 B. & C- 945 ; but it is not necessarv to discuss that point. The objection taken on the other side was, that under the seventeenth section, one contracting party cannot constitute the other his agent, to sign the memorandum (which, it was said, was the effect of the present transaction) ; and Wright v. Dannah, 2 Campb. 203, and Farebrother v. Simmons, 5 B. -, to 500 acres of land in one separate and distinct tract, and not a right to five or six different tracts located in different parts of the town, and that it was incumbent on the plaintiff 26 SUMNER V. CONANT. [CHAP. L to show the land sued for to be a part of said tract ; 2. That, inasmuch as the tract attempted to be granted b}' said charter to said Benning Wentworth was not therein described with such certainty that it could be known and distinguislied from the lands granted by said charter to the other grantees therein named, said grant was void as to said Went- worth ; 3. That the said Benning Wentworth never had any legal interest in the land in question, bv virtue of said charter; 4. That neither the plaintiff nor any of the persons from or through whom his pretended title passed ever had any legal right or interest to the land in question, b}' virtue of any division of the lands in Barnard, shown by the evidence in the case to have been made by the proprietors of said town. But the court refused so to charge the jur}', but did charge tliem to the contrary thereof. Whereupon the jur}' returned a verdict for the plaintiff, and the court rendered judgment thereon ; to which decision and charge the defendant excepted. Aikens & Edgerton, for the defendant. T. Hutchinson^ for plaintiff. The opinion of the court was delivered by RoYCE, J.^ The case shows that all the right of Benning Wentworth came b}' devise to Martha, the wife of John Wentworth, about 1803; and the only remaining question is, whether the plaintiff has ac- quired her title. This depends on the validity of the power of attor- ney, executed by her and her husband to Shepherd, in October, a. d. 1808. The power was undoubtedly good for all the purposes men- tioned in it, except that of conveying lands ; because the husband alone was competent to authorize all necessar}' acts to accomplish those pur- poses. And whether it was also good for the purpose of passing her title to the lands is a question of great importance, and one which has never been decided in this court to our knowledge. At common law, a woman under coverture could make no convey- ance of her lands, except through the agency of a court of record. She could neither convey directly by deed, nor authorize any one to convey for her. All her present right to convey by deed is therefore conferred by statute. The requisites of a common deed of conveyance are pre- scribed by the fifth section of the act regulating conveyances. It must be " signed and sealed by the party having good and lawful authority thereunto," and " signed by two or more witnesses, &c." The ninth section contemplates that such deed may be executed by attorney, and discloses some of the requisites of the power of attorney. The words are, " such power having been signed, sealed, and acknowledged before a jus- tice of the peace, by the party having lawful right to make the same." Thus far the statute is applicable to all persons having a legal right to act under it, whether by conveying their lands directly, or empowering agents to conve}'. No personal disabilities are as yet mentioned, or pro- vided for. But the twelfth section relates exclusively to the case of a 1 The opinion is abridged by omitting paragraphs not bearing upon the power of attorney. — Ed. SECT. 111.] SUMNER V. CONANT. 27 feme covert attempting to convey her lands by deed. The right is there given or recognized to convey " by deed of herself and baron ; " and as a protection against any improper influence of the husband, her separate examination and acknowledgment are made necessary, and required to be certilied upon the deed. The question now presents itself, whether this deed may not be executed through the instru- mentality of a third person. Though it is generally true that what a person has a right to do in his own affairs, he ma}' authorize an- otlier to do for him, yet this is b}- no means universally true. An infant may execute and deliver a deed of his land, which will be effec- tual in law, unless he afterwards elects to avoid it; while his autlioiity to another to deed for him, is merely void. Reeve's D. R. 251. The disability ofaj'e/ne covert is not founded, like that of an infant, ui)on a supposed want of discretion, but results from a legal subjection to her husl)and, which is presumed to deprive her of that freedom of will which is essential to the validity of contracts. And that this disability emphatically applies to the delegation of powers is shown b^- the familiar case of an attorney to defend a suit, whom, it is everywhere said, the wife cannot appoint. It is contended, however, that in this instance, the statute has removed her disabilit}*. This proposition is defended on two grounds : 1st. That the power to convey, and the deed executed by the agent, being parts of one entire conveyance, constitute the deed which the statute has authorized ; 2d. That, the right to conve}' being expressly given, the power to create an intermediate agency should be upheld, as one of the necessar}', or usual, means for exercising that right. The first ground here taken would lead to a ver}' free and loose construction of the statute. The power of attorney is strictly no part of the conveyance, but a mere qualification of the person who is to make it. Much less is it the deed of conveyance itself, of which alone the statute speaks. It is known that the power and deed are distinct instruments, not merely executed at different times, but ac- knowledged bv different persons, — the power by the part}' making it, and the deed by the agent who executes it. Such were the facts in this case. And how can it be maintained, except upon a subtle and strained construction of the act, that Martha Wentworth has ever exe- cuted and acknowledged the deed which professes to convey her estate? In our opinion, the terms of the statute do not justify a conclusion so wide of their apparent import. The remaining ground is open to most of the observations already made. I shall suggest but a simple additional objection, which con- sists in the inability of the wife to revoke a power of this description, without the concurrence of her husband. Whether this consideration alone would be fatal to the power in ever\' case, it is certain!}' of great and decisive force in the present. The power in question extended to all the rights granted, or reserved, to Gov. Wentworth throughout this State ; the pi'operty to be affected was consequently large, and the business of the agency was doubtless expected to continue through a 28 WEISBROD V. CHICAGO AND NORTH-WESTERN RY. CO. [CHAP. I. course of years. To sustain the power, under such circumstances, would be to place the valuable estate of a wife beyond her own control, and not unfrequently subject it to the waste of a faithless agent, or an un- wise and improvident husband. Judgment of the County Court reversed, and new trial granted.* ADAM HENCHMAN v. JOSEPH ROBERTS and ELIZABETH ROBERTS. Superior Court of Delaware. 1836. [2 Harrington, 74.] Rule to show cause wh}' a judgment entered against husband and wife should not be set aside, because the warrant of attorney was given b^' the wife after marriage. The court said that the judgment against the wife was void, being confessed on a void authority, as a married woman cannot execute a letter of attorney ; and the judgment, being a joint one, must be set aside as against both. Mule absolute.^ Wales, for plaintiff. Booths for defendant. WEISBROD V. THE CHICAGO & NORTH-WESTER]^ RAILWAY COMPANY. Supreme Court of Wisconsin. 1864. [18 Wis. 35.] Appeal from the Circuit Court for Winnebago County. Ejectment, for a strip of land lying near the middle of what was commonly known as Broad Street in the city of Oshkosh. The plaintiff claimed the premises as part of lot 1, block E, and lot 26, block D, in the 2d Addition to said city. The defendant claimed to occupy and use the premises as the property of one Miller, under a license from him. The grounds upon which the parties severally rested their claims are fully and clearly stated in the second paragraph of the opinion, infra. In making out his chain of title to lot 26, block D, the plaintiff offered 1 Accord: Steele ''. Lewis, 1 T. B. Mon. 48 (1824) ; Administrators of Earle v. Earle, 20 N. J. L. .347, 360 (1845) ; Lewis v. Coxe, 5 Harrington, 401 (1852) ; Mott V. Smith, 16 Cal. 533, 556-557 (1860). And see Holladay v. Daily, 19 Wall. 606, 609 (1873).— Ed. 2 As to the judgment against the husband, see Mendenhall v. Springer, 3 Harnngton 87 (1840) ; Britton v. Wilder, 6 Hill, 242 (1843). —En. SECT, 111.] WEISBROD V. CHICACxO AND NORTH-WESTERN RY. CO. 29 in evidence the record of a power of attorne}- from Arabella Crar^ to Leonard P. Crary, dated June lltli, 1853, and admitted that said Leonard was the husband of said Arabella at the time the instrument was executed ; also the record of a warranty deed from Ai-abella CrarN- and Leonard P. Crary to the plaintiff, executed in June, 1854, by said Leonard as attorney in fact of said Arabella and for himself; but the evidence was excluded on the ground that a wife could not at that time execute a valid power of attorney to her husband, nor execute a deed by her husband as attorney. After considerable evidence had been introduced on both sides as to so much of the land in dispute as fronts lot 1, block E, the court instructed tliejurv, in sul)stance, that if Miller's land included all the west half of Hroad Street, and extended beyond the centre of said street, but did not extend to the east line of the street, so that a strip of land remained between the east line of the Miller purchase and the east line of Broad Street, to which Miller had no title, then his quit-claim deed to the plaintiff did not convey to the latter that i)ait of the street lying east of its centre and in front of plaintiff's lot; and if the defendant's track was constructed upon the strip so described, the plaintiff could not recover. Verdict and judgment for thexlefendant. Whittemore & JFeisbrod, for appellant.!; M. A. Eihnonds^ for resi)ondent. By tlie Court, Dixon, C. J. A feme covert may at the common law be an attorne3' of another to make liver}' to her husband upon a feoff- ment ; and a husband may make such livery to his wife. She may act as the agent or attorney of her husband, and as sucli, with his consent, bind him by her contract or other act ; or she may act as the agent of another in a contract with her own husband. Story on Agency, § 7. If it is no violation of the common law principle of the unity of husband and wife for the wife to act as the agent or attorne}' of her husl)and, the conclusion would seem irresistil)!}' to fojlow, that it is no infringement of the same principle to allow the husbij^ to act as the agent of the wife in cases where by law she is sui juris and capable of acting for herself. At common law, the separate existence of the wife was for many purposes merged in that of the husband, and she could do no act. Incapable of acting for herself, she could not appoint another to act in her stead. Her disability was general, and hence we find no cases in the books of agency in her behalf, either by her husband or another; certainly none by her husband, unless they be some of very recent date, and which have arisen since the enactment of statutes enlarging the rights of married women, and in which the capacity of the husband to act as the agent of his wife seems rather to have been assumed than decided. Thus it will be seen from the report that it was assumed by the Court of Appeals, in Hauptman v. Catlin, 20 N. Y., 247, that the hus- band might act as the agent of his wife in transactions respecting her separate estate. Her separate property was charged in an action at law, under the lien act, upon a contract made by her husband as her 30 BODINE V. KILLEEN. i[CHAP. L agent. The opinion in the case was written by the same learned judge, whose language in White v. Wager, 25 N. Y., 328, is quoted b}* counsel for the respondent to prove that the husband cannot act as such agent. Thus, too, it was assumed bj* this court in Hobby v. The Wisconsin Bank, 17 Wis., 167. But in neither case was the capacity of the hus- band to act, or the power of the wife to appoint him, directly raised or discussed. The question passed off suh silentio. But, as we have al- read}' said, there seems on principle to be no reason to doubt the cor- rectness of the doctrine thus assumed. The disability of the wife has in man3- respects been removed bj' statute, and she is now capable of acting not only by herself but by an agent, with no express limitation upon her power of appointment. If the doctrine of unity does not stand in the way, as it seems it cannot, then we see nothing to prevent her making her husband her agent, whenever she chooses to intrust him with the management of her affairs. It is true that the Court of Appeals held, in White v. Wager, that the statute does not enable the wife to convej" land to her husband. It is also true that the statute does not authorize her to receive b}- gift, grant, etc., from her husband an}- real or personal property ; and 3'et it would hardh' be contended that this limitation upon her power to receive directh* abrogates the common law rule that she ma}' act as the agent of her husband in the sale and dis- position of the same property' to others. So too at the common law she could not take b}' grant or gift from her husband ; still she could convey to others as his agent. The distinction arises from the inherent differ- ence between a mere power to conve}* and the conveyance itself. The former is not regarded in the law as a contract, whilst the latter is. Hence a person incapable of contracting ma}' be the donee of a power ; and husband and wife, for the purpose of giving and receiving a power either to and from each other or third persons, are to be considered as if no relation of marriage existed between them. For these reasons we are of opinion that the power of attorney from Arabella Crary to her husband, and the deed from her to the plaintiff executed b}- her husband as her attorney in fact, should have been received in evidence.^ The judgment is therefore reversed, and the cause remanded for further proceedings according to law. MORDAUNT BODINE et al., Respondents, v. MATILDA KILLEEN, Appellant. Court of "Appeals of New York. 1873. [53 N. Y. 93.] Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiffs, entered upon a verdict. 1 A paragraph not dealing with Agency is omitted. — Ed SECT. III.] bodinp: v. killeen. 31 This was an action for goods alleged to have been sold and deliv- ered by plaintiffs to defendant, a married woman, between Ma}- and September, 1869. For several years prior to May 1, 1869, the defendant had carried on business on her own account at 400 Broome Street, in the city of New York, and was accustomed to purchase stock in trade of plaintiffs. Up to the early part of 1868 such purchases were made tlirough her husband, acting as her agent. lie being taken ill, she subsequently made the purchases and payments herself. On May 1, 1869, she sold out to her husband, and he opened and continued a similar business for himself in Twenty-eighth Street, and made purchases therefor of the plaintiffs upon credit. The court charged the jury in effect that they were only to deter- mine in this case whether notice was given plaintiffs by defendant of her retirement from business ; that in case the plaintiffs had no such notice the verdict must be in their favor, to which defendant excepted ; that if plaintiffs had notice of such fact or knowledge of facts suffi- cient to put them upon inquiry in respect thereof, and neglected to make it, the verdict must be for the defendant. Defendant's counsel requested the court to charge the jury, that in case they were satisfied from the evidence that defendant at the time of the purchases in question was not actually engaged in business on her own account, no recovery could be had against her in this action. The court refused so to charge, and defendant excepted. The jury found a verdict in favor of the plaintiffs. 3Toses EI)/, for the appellant. Cyrus Ldicton^ for the respondents. Allex, J. With the removal of common-law disabilities from mar- ried women, corresponding liabilities have necessarily been imposed upon them. They take the civil rights and privileges conferred, sub- ject to all the incidental and correlative burdens and obligations, and their rights and obligations are to be determined b}- the same rules of law and evidence b}' which the rights and obligations of the other sex are determined under like circumstances. To the extent, and in the matters of business in which the}' are by law permitted to engage, they owe the same duty to those with whom the}' deal, and to the public, and may be bound in the same manner as if they were unmarried. Their common-law incapacity cannot serve as a shield to protect them from the consequences of their acts, when the}' have statutory capacity to act. A married woman is sxn Juris to the extent of the enlarged capacity to act conferred by statute, and may be estopped by her acts and declarations, and is subject to all the presumptions which the law indulges against others with full capacity to act for themselves. Sherman v. Elder, 24 N. Y., 381. Where there is no legal capacity to contract, a party will not be estopped by falsely representing that he has capacity, that is, the incapacity is not removed by any fraudulent 32 BODINE V. KILLEEN. [CHAP. I. representation of the actor. The law will not permit one legally inca- pacitated to do that indirectly which he or she cannot do directly. That is especially the case in respect to infants and married women laboring under tlie common-law disabilities, the law imposing the dis- qualifications from motives of public policy, and for the safety of those regarded as weak, and needing this protection. Keen v. Coleman, 30 Penn., 299 ; Lowell v. Daniels, 2 Gray, 161 ; Goulding v. Davidson, 26 N. Y., 604. But the reason of the rule ceasing with the removal of the incapacity, the rule falls. In the management and control of her separate propert}', when acting by agents, a feme covert is answerable for the frauds of her agent while acting within the scope of the agenc}", although the fraud may be without her knowledge or assent. Baum V. Mullen, 47 N. Y., 577. By statute (Laws of 1860, chap. 90) a married woman ma}- carry on an\' trade or business on her sole and separate account, and the earnings from her trade or business are her sole and separate property, and she may sue and be sued in all matters having relation to her sole and separate propertj', in the same manner as if she were sole. She has all the legal capacity to do every act inci- dent to the business or trade in which she ma}' engage which a feme sole would have, that is, full legal capacity to transact the business, including, as incidents to it, the capacity to contract debts and incur obligations in any form, and b}' any means, b}' which others acting siii juris can assume responsibilitj'. This defendant, for many j^eai's prior to May, 1869, had been doing business in New York City as a retail grocer, buying her goods of the plaintiffs on credit. During most of the time, and until some time in the year 1868, her husband had acted as her agent in making the pur- chases and payments. The husband was taken ill in 1868, and from that time she made the purchases and payments to the plaintiffs, but there was no revocation of the agency of the husband. About the first of May she transferred the business to her husband, who subsequently carried it on at a different place in the same city, and bought the bills of goods for whicli action is brought during the month of May. The jury have found that there was no notice to the plaintiffs of the change in the business, and that they had no knowledge of it. Credit was in fact given to the defendant, and not to her husband. The plaintiffs had the right to presume that the business of the defendant, and the agency of her husband in respect to it, continued until actual notice of change in the business, and a revocation of the agenc}'. SuflTering the plaintiffs to act upon this presumption, she is estopped from alleging the contrary. She had capacity to continue the business in which she had been engaged, and whether she expressly represented to the plain- tiffs that the business was still hers and her husband was her agent, or the facts were legally and naturally inferable from her acts, or her silence, is immaterial. She is bound by the appearances which she has given to the transaction, and upon the faith of which others have acted, up to the limits of her legal capacit}' to act. In other words, to the SECT. IV,] combes' case. 33 extent of her legal capacity, the apparent authority of the husband to act for and bind her must be taken as the real authority, so far as others have been induced to act upon it, and have parted with their property upon the faith of it It is simply because tlie defendant liad the power to contract the debt for which this action is brouglit, that she may be estopped l)y her acts from disputing iier liabihty, and the existence of this capacity takes the case out of the principle of the authorities relied upon by the counsel for the appellant. This is the only question presented by the record, or urged by the appellant, although it is made the subject of several exceptions in different forms upon the trial. The case was well disposed of at the circuit. The liability of the defendant does not depend upon the fact that she was actually carrying on a business or trade on her sole and separate account, but upon her capacity to do so, with the other circumstances establishing her liability. The judgment must be alllrmed. All concur. Judgment affinned. SECTION IV. What Acts can be done through an Agent. COMBES' CASE. Common Pleas. 1G13. [9 Co. 75«.] In replevin by William Atlee, against Daniel Banks and Thomas Osborn, of taking of his cattle at Harraonsworth, in a place called Wal- nut-tree Close, in the county of Middlesex, «&;c. Which plea began Trin. 8 Jac. Reg. Rot. 330. Upon the pleading, and issue joined, and special verdict given, the case was such. Thomas Combes, copyholder in fee of ten acres of pasture in H. of the manor of Harmoiisworth, in the county of Middlesex, by his deed 22 November, 5 E. 6, consti- tuted and ordained William Combes and Stephen Erlie, two copyhold tenants of the same manor, his lawful attornies, to surrender vice & nomine suo to the lord of the said manor, the said ten acres of pasture to the use of John Nicholas and his heirs, and afterwards at a Court held of the said manor 8 Julii anno 6 E. 6, the said attornies tune tenentes dom* per copiam Rot' Cur' in eadem Cur' ostenderunt scrip- turn p reed' gerens daf prcBdicf 22 Nov' anno 5, supradicto, et iidem Willielmus et Stephanus authoritate eis per prced' literam attornatus doff in plena cur' sursum reddiderunt in maims doni' prced" decern fwras pasturcB ad opus tb usum prced' Johannis N^icholas hceredum et 3 34 combes' case. [chap, l assignatorum suorum, who was at the same court admitted accord- ingly ; and that within the said manor there was not any custom to surrender copyhold lands, &c., b}' letter of attorney, either in court or out of court. And if the said surrender by letter of attorne}- of the said lands held by copy, &c., was good or not, was the doubt, which the jury referred to the consideration of the court. And this case was argued at the bar, in Michaelmas, Hilary, and Easter terms, and in this term, and in this it was also argued by the justices at the Bench ; and in this case two points were moved: 1. If a surrender could be made bj' force of the letter of attorne}' ; 2. If the attorneys had pur- sued their authority. As to the first, it was unanimousl}' agreed bj- all the judges in their several arguments, that the surrender in the case at bar made b}' letter of attorney was good ; and their reason was, because ever}' copyholder having a customary estate of inheritance may, de comimmi Jure, with- out an}' particular custom, surrender his lands held by cop^^ in full court, and therefore in pleading the copyholder need not allege a cus- tom within the manor to surrender in court ; for that which is the usage /)er totatn Angliam is the common law as it is held in 34 H. 8 Br. Custom 59, & 34 H. 8, Dy. 54, qxiod hahetur co?isuetudo inter mercatores per totam Angliam, <&c., is no good manner of alleging a custom, for that is the common law ; and in the Book of Entries, Tit. Tresp. Divisione Copyhold 1, f. 568, no custom is alleged to enable a copyholder to surrender in full court, no more than that a copyholder ma}' make a lease for one year ; because that he ma}' do b}- the general custom of the realm, which is the common law, vide Bracton, lib. 2, c. 8. Then if a copyholder ma}' surrender his estate in court by the general custom of the realm, which is the common law, from thence it follows that he may do it by attorney, as a thing incident by the common law : and that will more clearly appear if the reason of such things which a man cannot do by attorney be well considered. And therefore if a man has a bare authority coupled with a trust, as executors have to sell land, they cannot sell by attorney ; but if a man has authority, as absolute owner of the land, there he may do it by attorney, as Cestui que use might after the statute of 1 R. 3, and before the statute of 27 H. 8, for Cestui que use had an absolute authority to dispose of the land at his will, without any confidence reposed in him, as appears in 11 Eliz., Dyer, 283, and there a judgment is cited in 25 H. 8 accord- ingly, against the opinion of some judges in 9 H. 7. 24. But in the case at bar, the copyholder has a customary estate of inheritance, and not an authority or power only. Also there is a difference betwixt a general absolute power and authority as owner of the land, as afore- said, and a particular power and authority (by him who has but a particular interest) to make leases for life or years. And therefore if A. be tenant for life, the remainder in tail, &c., and A. has power to make leases for twenty-one years, rendering the ancient rent, «fec., he cannot make a lease by letter of attorney by force of his powert SECT. IV.] combes' case. 35 because be has but a particular power, which is personal to him ; and so was it resolved in the case of the Lady Greshatn at the assizes in Suffolk in quadrageslnV 24 El. by Wra^' and Anderson, Chief Jus- tices, Justices of Assise there. Also there are some things personal, and so inseparably annexed to the person of a man, that he cannot do them by another, as doing of homage and fealt}' : so it is held in 33 E. 3, Trespass 2o3, the lord may beat his villain for cause, or without cause, and the villain shall not have any remedy ; but if the lord com- mands another to beat his villain without cause, he shall have an action of battery against him who beats him in such case. So if the lord distrains the cattle of his tenant, although nothing be behind, the ten- ant for the respect and duty which belong to the lord, shall not have trespass vi et armis against him : but if the lord commands his bailiflf or servant in such case to distrain where nothing is behind, the tenant shall have an action of trespass ci et armis against the bailiff or ser- vant. 2 U. 4. 4. a. 11 H. 4. 78. b. 1. H. G. 6. a. 9 II. 7. 14. a. Littleton, in his chapter of Burgage, holds that where in a borough be who is seised of lands in fee may devise b}' custom, there the owner of such land ma}- devise that bis executors shall sell, which they shall do as attornies to him, 3 E. 3. Coron. 310. by the custom of a manor a freehold will pass from one to another by surrender in court, against the will of the lord, and where the custom is such, the tenant may do it b}' attorney', vide 14 H. 4. 1. a. by Hankford, & vide 19 Ass. p. 9. And it was said, as he to whose use a surrender is jnade nia}" be admitted by attorney', so a copyholder may surrender by attornc}' in full court ; and the case of him to whose use seems the stronger case, because he who is to be admitted is to do fealt}-, which none can do fealt}' but he who shall be admitted, and therefore in such case the lord may refuse to admit him by attorney ; but if he admits him by attorney, it is good enough. But Hil. 28 Eliz. in Chapman's case it was held in the King's Bench that where the custom of a manor is, that the copyholder out of court may surrender into the bands of the lord of the manor b}' the hands of two customary tenants, who in effect are but instruments or attornies of the copyholder to take his surrender, that in such case the cop}'- holder by his attorney cannot surrender into the bands of the lord by the hands of two copyhold tenants ; for inasmuch as the surrender in such case ought to be warranted b}' the custom, tlie surrender without special custom to warrant it by attorney will not be good. Also that was upon the matter by attorney to make a surrender by others who are but attornies, for that is not warranted by the particular custom of the manor to make a surrender out of court. But in the case at bar the common law, and no particular custom, warrants the surrender, and therefore it may well be made according to the rule and reason of the common law by attorney. But it was resolved, that the attorney ought to pursue the manner and form of the surrender in all points according to the custom, as the copyholder himself ought to have 36 combes' case, [chap, l done ; as if the surrender by the custom ought to be b}' the rod, or by any other thing, or in an}- other manner, the attorney ought to pursue it. And the Chief Justice said that the style of a copyholder imports three things: 1. Nomen, his name. 2. Originem, his commence- ment. 3. Titul, his assurance. His name is tenant by copy of court- roll, for his name is not tenant by court-roll, but by copy of court-roll, who is the sole tenant in law that holds by copy of any record, char- ter, deed, or any other thing. 2. His commencement, ad voluntatem domini; for at the beginning he was but tenant at the will of the lord. 3. His title or assurance secundum consuetudinem manerii, for the custom of the manor has fixed his estate, and assured the land to him so long as he doth his services and duties, and performs the customs of the manor. And therefore Danby saith in 7 E. 4. 19 a. that bj' the custom he is as well inheritable to have the land, as tenant to hold his freehold by the common law. And it was resolved that this case was stronger, because the letter of attorne}' was made to those who were tenants by copy, &c., of the said manor. But it was agreed that where an infant at the age of fifteen years may make a feoffment that he cannot do it by attorney, because a custom which enables a person disabled by the law ought to be pursued, and an infant can do nothing to pass anything out of him by attorne}' : vide 11 H. 4. 33. a. and it would be hard if men in prison, or sick, or beyond the sea, could not make surrenders of their lands held b^' copy for payment of their debts, or preferment and advancement of their wives and children, «&:c. Nbta, reader, this is the first case that I have known which was adjudged in this point. 2. It was resolved that when an}' has authority, as attorne}-, to do any act, he ought to do it in his name who gives the authority ; for he appoints the attorne}' to be in his place, and to represent his person ; and therefore the attorne}' cannot do it in his own name, nor as his proper act, but in the name, and as the act of him who gives the authority. And where it was objected that in the case at bar, that the attornies have made the surrender in their own names ; for the entr}' is Quod iidem Williehmis et Stepha^ius, &c., sxirsum reddiderunt^ &c. It was answered and resolved, per totam curiam, that they have well pursued their authorit}- : for first they showed their letter of attorne}', and then they authoritate eis per prced' litera7n attornaV daf siirsum reddiderunt, &c., which is as much as to say, as if the}" had said, we as attornies of Thomas Combes, surrender, &c., and both these ways are suflBcient ; as he who has a letter of attorney to deliver seisin saith, I as attorney to J. S. deliver you seisin ; or I by force of a (this) letter of attorney deliver you seisin ; and all that is well done, and a good pursuance of his authority : but if attornies have power by writing to make leases by indenture for years, &c., they cannot make indentures in their own names, but in the name of him who gives them warrant. But if a man by his will in writing devises that his executors shall sell his land, and dies, there the executors in their own name may sell the SECT. IV.] HYDE V. JOHNSON. 37 land for necessit}", because he who gives them authority by his will (which takes effect after liis death) is dead ; and yet in such case the vendee is m by the devisor. HYDE V. JOHNSON. Common Pleas. 1836. [2 Bing. N. C. 776.] In this action the plaintiff, in order to recover a debt barred by the Statute of Limitations, offered in evidence at tlie trial before the under- sheriff, a letter written by the defendant's wife, in her husband's name, at his request, offering to pay the debt by instalments, and sent by him to the plaintiff. The evidence was objected to as not signed '' by the party cliargeable thereby," within tlie meaning of 9 G. 4. c. 14, § 1 ; but the under- sheriff received it, and a verdict was taken for the plaintiff with leave for the defendant to move to set it aside, and enter a nonsuit instead, if the court should be of opinion that the letter ought not to have been received. Accordingly, Chilton having obtained a rule nlH to that effect, Byles showed cause. It is true the statute requires the acknowledg- ment to be signed b}' the party chargeable thereby, and, except in § 7, where it recites the statute 21 Jac. 1, c. 16, does not employ the word " agent ; " but a man's agent is as much implied in the mention of himself as his executor or administrator ; and great inconvenience would ensue if a party were not allowed in all cases to bind himself by the recog- nized acts of his agent. According to that construction of the statute, a party unable to write would never be capable of making a binding acknowledgment of a debt. In Whippy v. Hilary, 3 B. & Adol. 399, it was held that the Statute of Limitations was not barred b^' a letter in which the defendant stated " that family arrangements had been making to enable him to discharge the debt ; that funds had been ap- pointed for that purpose, of which A. was trustee ; and that defendant had handed the plaintiff's account to A. ; that some time must elapse before payment, but that defendant was authorized by A. to refer the plaintiff to him for any further information ; " but that was because by the statute 9 G. 4. the acknowledgment must be signed by the party chargeable tliereby ; and such letter did not charge the defendant. Kdly and Chilton in support of the rule. If the signature of an agent be admitted, parol evidence must also be admitted to prove the agent's authority, and then all the inconven- ience will be reproduced which the statute was passed to obviate. And after the recital of the statute 21 Jac. 1, c. 16, which contains the word '' agent." the omission of that word in the enacting part of 9 G. 4. o 38 HYDE V. JOHNSON. [CHAP. 1. c. 14, cannot be esteemed accidental. The object no doubt was to exclude the temptation to i)erjury in the proof of agenc}-. Where a written acknowledgment has been destroyed, parol evidence may be given of its contents : Haydon v. Williams, 7 Bing. 163 ; but that is on the general principle which admits secondary evidence where primary has existed, but is no longer forthcoming. Here the statute meant to exclude the question of agency altogether. As to the difficulty sug- gested with respect to parties who may be unable to write, they may at least affix their mark, as in otlier cases. In Lyde v. Barnard, 3 Ci-. M. & Ros. 101, Lord Abinger, C. B., says: "The obvious policy of this statute was to prevent that fraud and perjury which had been found by experience, or was thought probable, to arise from trusting to evidence of less authority than tliat of a written document." Cu)'. adv. vult. TiNDAL, C. J. Tlie short question in this case is, whether a letter offering to pay a debt by instalments written b}- the defendant's wife to the plaintiff in her husband's name, and at his request, and afterwards sent by him to the plaintiff, is a sufficient acknowledgment or pronn'se " made or contained by or in some writing, signed b}- the party cliarge- able thereb}-," within the meaning of the 9 G. 4. c. 14, § 1. The question turns entirely on the construction of the statute, and it amounts in other words to this, — does the statute 9 G. 4. c. 14 extend to a writing signed b}- an agent of the party, or is it confined to a writing signed by the party himself? Looking at the words of the statute, it is confined in terms to a writing " signed by the part}' chargeable thereby." And as the effect of that statute is, for the first time, to introduce a legislative exception into the statute of 21 Jac. 1, c. 16, and thereby pro tanto, to repeal it, we do not feci ourselves justi- fied in extending such exception beyond the plain and unambiguous meaning of the words employed therein. The legislature has, in many statutes, given equal efficacy to written instruments when signed by the parties, and when signed by their agents ; but in all those cases express words have been employed for that purpose. The Statute of Frauds, in its third section, requires for the purposes of that section, a note in writing to be signed by the party, "or their agents thereunto lawfully authorized by writing ; " in the fourth section, a memorandum or note in writing is required, " signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized ; " in the fifth section, a devise of lands is required to be made in writing to be "signed by tlie party so devising, or by some other person, in his presence, and by his express directions ; " in the seventh section, a declaration of trusts of any lands shall be in writing " signed by the party ; " and lastl}', the seventeenth section requires upon the sale of goods, that there shall be some note or memorandum in writing of the bargain, " signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." It appears, therefore, that the legislature well knew how to express the distinction, not onlj- beT se, and ihere is nothing in the statute to qualify the operation of that maxim. It is easy to understand that there may be cases in wliich a different construction must be put on particular statutes." Hyde v. Johnson, 2 Bing. N. C. 776, was decided on the ground that Lord Tcnterden's Act was to be read along with the Statute of Frauds, which expressly refers to signature by an agent, and tliat a clause which contained no reference to an agent was therefore to be held to require personal signature. In the present statute tliere is nothing in the wa}' in whicli the memoran- dum of association is dealt with to show that the Legislature intended anything special as to the mode of signature. The principle of Hyde V. Johnson therefore cannot be invoked in this case, and the general rule that a man may sign b3' an agent is not interfered with. I agree with Lord Justice Cotton that there is no ground for requiring the authority to sign the memorandum of association to be given by deed. Fry, L. J. I cannot usefully do more than express my entire con- currence in the judgments of the Lords Justices.^ SECTION 'V. Sow an Af/ent is appointed. {A) Gf:NERAL Pkinciples. BARR V. LAPSLEY. Supreme Court of the United States. 1816. [1 Wheat. 151.] Appeal from the Circuit Court of the District of Columbia. This cause was argued by Jones., for the appellants and complainants, and Harper, for the respondents and defendants. Johnson, J., delivered the opinion of the court. The object of this bill is to obtain a specific performance of an alleged agreement to receive a quantity of cotton bagging, at a specified price, in satisfaction of certain judgments at law. The defendants deny that the circumstances proved ever rendered the agreement final and obliga- tory upon them ; and this is the principal, perhaps the only, question the case presents. It appears that the complainants were indebted to one West, who assigned this debt (then unliquidated), together with the residue of his estate, to Lapsley et al. ; that Lapsley liquidated the debt with the Barrs, and took their notes payable at different periods, making up, 1 And see Finnegan v. Lucy, 157 Mass. 439 (1892). — Ed. SECT. V.J BARR V. LAPSLEY. 43 together, the amount clue. These notes having become due, and judg- ment being recovered on some of them, in October, 1811, the Barrs addressed a letter to Lapsley, in which they offer to pay him in cotton bagging, at thirt3-three cents per yard, by instalments, at certain periods. On the ITtli of December, in the same year, Lapsle}' answered their communication, and the following words, contained in that letter, are all that tlie court deem material to the point on which they propose to found their decision : " We are willing to take cotton bag- ging in liquidation of the three last notes, delivered at the period you propose, but not at the price you offer it." '' We expect that you give us satisfactory accounts for tlie punctual performance of your engage- ments, and to tliis effect we shall direct Mr. M'Coun, to whom we pro- pose to write by the next mail," On another passage of this letter, and a letter written by West, on the 18th of December, it has been contended that certain conditions were imposed upon the Barrs, which it was incumbent upon tliem to comply with before the}- could claim the benefit of the offer contained in Lapsley's letter. But, as the opinion of this court is made up on a ground whoU}' unaffected by this question, we deem it unnecessary to notice this point. It appears that Lapsley never, in fact, instructed M'Coun on the subject of this letter of the 17tli of December. But Warfield, the agent of the Barrs (who were absent from home on the receipt of that letter), supposing his prin- cipals to be referred to M'Coun as the authorized agent of Lapsley, notified to him the acceptance of Lapsley's offer, and remained under the impression that the agreement had become final, notwithstanding M'Coun's declining, altogether, to act, for want of instructions. Laps- ley, on the other hand, alleges that tlie notification of acceptance ought to have been made to himself, and assigns the want of an answer from the Barrs as his reason for never having given instructions to M'Coun. This state of facts presents an alternative of extreme difficult}'. On the one hand, Lapsley, b}' writing that he shall direct M'Coun, by the next mail, plainly pointed to a mode of expediting the conclusion of the agreement, through the agency of a representative on the spot, and when he intimated his intention to write b}' the next mail, showed that it was not his intention to await Barr's answer. This was well calculated to delude Barr into the idea that Lapsley would recognize no notification but that which should be made to M'Coun. On the other hand, how far could M'Coun, unempowered, uninstructed as he was, legall}' act, to bind Lapsle}' by his acceptance of the notification? Or, if he had received instructions from Lapsley, what obligation was he under to have undertaken the agency? Under the pressure of this dilemma, there is but one principle to which the court can resort for a satisfac- tory decision. Something remained for Barr to do. The notification of his acceptance was necessary to fasten the agreement upon Lapsley. For this purpose, he very rationally addressed himself, in the first place, to M'Coun ; and the reference to Lapsley's letter would have been a sufficient excuse for not returning an answer until a reasonable time 44 MEADER V. PAGE. [cHAP. L had elapsed for M'Coun to receive the expected communication from Lapsley. But when he found M'Coun uninstructed, and unwilling to act under the letter addressed to Barr, his course was plain and une- quivocal. A letter to Lapsley, transmitted by the mail, would have put an end to all doubt and difficulty. This is the method he ought to have pursued, and for not having pursued this course, we are of opinion that the bill was properly dismissed below. Decree affirmed. MEADP:R v. page, appellant. Supreme Court of Vermont. 1866. [39 Vt. 306.] Book account. The case was heard upon the auditor's report at the June Term, 18G6, Steele, J., presiding, when judgment was ren- dered for the plaintiff; exceptions b}' defendant. In respect to item number four, the one in dispute, cash $11.00, the auditor reported as follows: "It appeared that the defendant, about the month of October, 1862, left his home in Ryegate for New York, and has since that time been living and at work in the state of New York, a con- siderable part of the time, being at home several months at a time, at several different times since leaving home, his wife and family remaining at his residence at Ryegate ; that Mrs. Page has kept house and managed affairs at home ; that the defendant has from time to time sent home money to his wife to use in taking care of the family ; that in June, 1863, one of the defendant's children died at Ryegate ; that the defend- ant was at home at the time and agreed with one Jenkins, of Bradford, to furnish a set of gravestones for the child, and also a set for the defendant's father (who died previously), at the sum of $2.5.00. The defendant then returned to New York, agreeing to send home money to his wife to pay for these gravestones. Jenkins furnished and set up the gravestones, as agreed, where the}' now stand, and subsequent!}' the defendant sent home money to his wife to pay for them. It so happened when the money was sent the article of flour was rising in price, and had advanced to fifteen dollars per barrel, and Mrs. Page was advised that it would advance higher, perhaps to $20.00, and desiring to provide a supply for the time to come, bought a barrel, at $15.00, and at the same time bought several other articles at the store for family use, and paid out of the money so sent, and had n't enough left to pay for the stones, when Jenkins should call for it, which was soon expected; she therefore borrowed $13.00 of the plain- tiff, and when Jenkins came she paid for the gravestones therewith, and with other money she had left on hand. Mrs. Page agreed to pay the plaintiff back the money, when she borrowed it, in two or three weeks, and he called on her for the money, but she not having it paid SECT, v.] HEADER V. PAGE. 45 liirn two dollars only, and the balance, eleven dollars, not being paid, the plaintiff subsequently charged to the defendant, which is the item No. 4, in his account. It did not appear to what extent the defend- ant gave his wife authority to transact business at home ; he left her there to manage for him at home, what might be necessary to be done, considering their respective situations, and the defendant testi- fied that his wife took care of business pretty well, quite as well as the neighbors generally did, and would have done very well, if the neigh- bors had let her alone. It did not appear that he ever gave her any specific instructions, or that he left business to be done by any other person than his wife. lie had no other agent. It appears that Mrs. Page took care and got along at home by her own efforts and with what mone}' her husband sent or gave her from time to time. It did not appear that the defendant ever acknowledged that his wife bor- rowed anj' mone}' of the plaintiff or that he ever promised to pay the plaintiff." Leslie & Rogers, for the defendant. A. Underwood, for the plaintiff. The opinion of the court was delivered by Peck, J. In relation to the item of $11.00 in the plaintiffs account, it cannot be assumed that the credit was given by the plaintiff to the defendant's wife and not to the defendant. The auditor does not so find, and the facts, in the absence of such finding, do not lead to that conclusion. As the defendant was absent at work in New York, and only occasionally at home, and his wife remaining at the defendant's residence in Ryogate with his famil}', managing his affairs at home, it is probable the plaintiff ma}' have expected the payment would be made through the agency of the wife. But this does not show that the plaintiff did not give the credit to the husband, especially as he was sending money home to his wife from time to time as the wants of the family and the necessity of his business affairs left in charge of his wife required. The credit must be intended to have been given in fact to the defendant. But it is insisted that the wife had no authority to bind the defend- ant in the transaction of borrowing this money. This proposition is correct if it is to depend simply on the implied power of a wife arising from the legal relation of husband and wife without reference to the attending circumstances. Nor does the case come within the principle of those cases where the husband abandons his wife, or turns her away without cause, destitute of means of support ; for here was no such state of facts. Nor is any express authority shown to borrow mone^', either generally or in this particular instance. But it is conceded by the defendant's counsel that a wife may bind the husband in certain domestic affairs, such as are usual to intrust with the wife. The extent of this power, however, depends very much on the attending facts and circumstances. It is usually more extensive in case of the absence of the husband for long periods of time than when he is at home 46 MEADER V. PAGE. [CHAP. I. managing his own business. But upon the facts reported in this case, there was an agenc}- in fact arising from the absence of the husband, and from his having left his wife with the care of the family and in the management of his affairs at home. This agenc}', howe^;er, was not unlimited. The power must be construed in reference to the nature and extent of the business afiairs entrusted to her charge. On this point the report is not very full or explicit. It appears, however, that the defendant's wife " kept house and managed affairs at home, and that the defendant from time to time sent home money to his wife to use in taking care of the family," etc. The auditor reports also that '' it did not appear to what extent the defendant gave his wife authority to transact business at home ; he left her there to manage for him at home what might be necessary to be done, con- sidering their respective situations," and that the defendant testified that his wife took care of business pretty well, quite as well as the neighbors generally did, etc. This shows that the defendant gave his wife some scope for the exercise of her judgment in his business affairs. Considering that she borrowed the money (the $13.00) to help to pay a debt that the defendant himself contracted, and which he directed her to pa}', and which she did pa}', we think under the circumstances stated in the report, it came within the scope of her agency. It is true the defendant sent his wife money to pay that debt for the gravestones when they should be delivered and set up, but as flour was rising in price, and she being advised it would soon be still higher, she judged it prudent and good economy to buy a barrel of flour for the family with a portion of the money, which she did at $15.00, and some other articles at the store for family use, and bor- rowed the S13.00 to make up with what she had, a sum sufficient to pay the debt for the gravestones. The flour and other articles were for the use of the family, and must be intended as necessaries in kind ; and it is not found by the auditor that they were not necessary, in fact, under the circumstances. The auditor further reports that it did not appear that he, the defendant, ever gave her any specific instruc- tions ; that he had no other agent ; that his wife took care and got along at home by her own efforts and what money her husband furnished her from time to time. From this and other facts reported, it is evident that the defendant contemplated his wife, in such small matters as are embraced in the plaintiffs account, would exercise her judg- ment and discretion. If she had paid for the gravestones out of the money the defendant sent her, and borrowed the money in question to buy the flour, there can be no doubt but it would have charged the husband. The using of some of the money sent as she did, and re- placing it with the money borrowed, is the same in efiect, and was within the scope of her agency, and the plaintiff had a right so to understand it. There was an agency in fact, and what she did was within the scope of her apparent agency. The item of forty cents for horse to Wells River must be regarded as embraced within the domestic affairs intrusted to SECT. V.J PAGE V. METHFESSEL. 47 her charge, without proof of the actual necessity for it at the time. No questions is made as to any other items, except item for the lialter which is not before us, as the plaintiff did not except. Judgment affirmed} PAGE V. METHFESSEL. Supreme Court op New York, General Term, Fourth Department. 1893. [71 Hun, 442.] Appeal by the defendant, Anton G. Methfessel, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Oswego on the 25th da}* of Juh', 1892, upon the report of a referee, with notice of an intention to bring up for review upon such appeal the order made by the referee herein, dated June 4, 1892. •^ In the com})Iaint, it is alleged that at divers times between October 7, 1890, and June 10, 1891, the plaintiffs, at the request of defendant and on his promise to pay therefor, sold and delivered to him goods at prices agreed upon and payable in sixty days, amounting to and of the value of $4078.90. The answer denies, in substance, all the allegations of the complaint, except that the defendant admits he has been requested to pay certain money's to plaintiffs. Van Hoevenherg & Holt, for the appellant. J). P. 3forehoHse, for the respondents. Merwin, J. All of the goods for which a recovery has been had in this case were ordered b}' "Philip Michel, Agent," and were shii)ped by plaintiffs to " Philip Michel, Agent," at Stapleton, Staten Island, and were charged in the same wa}^ upon plaintiffs' books. The referee has found that the defendant, by his acts and conduct in these and similar prior transactions with plaintiffs, held Michel out to them as his agent in purchasing these goods, and that in reliance upon that, and in the belief, induced by such acts and conduct, that defend- ant was the principal behind Michel, they made the sales in question. In other words, it was held that the plaintiffs had the right to treat the defendant as the principal in the transactions. The question in this case is whether such finding of the referee is sustained by the evidence. The plaintifTs are manufacturers at Minnetto, Oswego Count}', of shade-cloth, window-curtains and fixtures, under the firm name of the Minnetto Shade-Cloth Company-. The defendant, since April 1, 1886, has resided at Stapleton, Staten Island, and owned there a factory ^ See Cliurch v. Landers, 10 Wend. 79 (1833); Benjamin v. Benjamin, 15 Conn. 347 (1843) ; Felker v. Emerson, 16 Vt. 653 (1844). — Ed. 2 The reporter's statement has not been reprinted in full. — Ed. 48 PAGE V. METHFESSEL. [CHAP. L building for the manufacture and decorating of shade- cloth into window-shades. During this period, Philip Michel, who is a practical window-shade manufacturer, lived at Stapleton. In the latter part of April, 1866, and before the 29th, the business of manufacturing and decorating window-shades at defendant's factory was commenced under the name and style of *' Philip Michel, Agent," and such business was carried on under that name until after June 9, 1891. During this time Michel was the practical shade maker and managing agent of the business, and defendant was the office man and book-keeper, and had charge of the finances of the business. On the 29th April, 1886, Michel, as agent, had a negotiation with one Gillett, who was a sales- man and agent of the plaintiffs in reference to the purchase of goods from the plaintiffs for the purpose of manufacturing and decorating in said factory. Gillett inquired of Michel as to his financial responsibil- ity, and Michel replied, "I have a friend who will advance me some money to do business ; " and thereupon Michel took Gillett to the house of defendant, introduced him to defendant, and then left. After Michel left, Gillett asked defendant whose agent Michel was, and defendant replied : — "He has been unfortunate, and cannot use his own name. I am ready to assist Mr. Michel according to mj- ability. All the orders received from Mr. Michel, countersigned by myself, I will be responsi- ble for." The defendant, then, at Gillett's request, wrote, signed, and de- livered to him a memorandum, of which the following is a copy : — Stapleton, April 29, 1886. I herewith declare myself to be responsible for all orders sent by Phil. Michel, Agent, to the Minnetto Shade-Cloth Company, if the same are countersigned by me. A. G. Methfessel. After this, and on the same day and occasion, an order was signed and delivered to Gillett, as follows : Philip Michel, Agent. 1 pc. ea. 18-32-38-62-66-68-64-58. Philip Michel, Agent, Stapleton. A. G. Methfessel. These goods were shipped as directed, and soon thereafter the plain- tiffs received in payment thereof from the defendant, by mail, his individual check on the German-American Bank of New York for the amount of the order, less a discount of 2 per cent allowed for payment within 30 days. The next order seems to have been about May 25th, and not countersigned by defendant, by reason of his absence. On the 21st June, 1886, the defendant writes to the plaintiffs, inclosing an order, as to which he says : " You will oblige me by sending at your very earliest convenience to Phil. Michel, Agent." He also inclosed his check for the amount of seven bills from May 25th to June 14th. In this letter he also sa.vs : — SECT. V.J PAGE V. METHFESSEL. 49 " Our iuteution is to pay alway.s cash, and, if we do not do it this time, it is becaose I was abseut on a trip west, and we thought that the goods bouglit of you iu the first days of May would la.st until my return. Orders, however, coming in earlier and larger tliau we expected, Mr. Michel applied to you for more goods, which you sent without my guaranty, thereby doing us a favor, for which we feel grateful. I send the full amount of those seven bills, trusting that you will allow all the discount you posssbly can, and deduct the same from the amount of next bill." After the first order, none were in form countersigned b}- defendant. Some orders, however, were sent b}- the defendant himself, and many letters of defendant are in evidence, from which it might be inferred that the defendant liad a personal interest in the business. For instance, on the 25th September, 1886, he sends an order for certain specified goods, and adds, " We will soon give you larger orders," The goods, however, were mainly ordered by " Thilip Michel, Agent," and all were shipped and charged in that form. The dealings were quite large, comprising hundreds of orders, aggregating about ^35,000, and continued to June 9, 1891. All of the goods so ordered and shipped, down to October 2, 1890, were paid for, from time to time, by the individual checks of the defendant on the German-American Bank of New York, inclosed in letters written bj- him to the plaintiffs. The orders since October 2, 1890, are the items involved in this suit. All the goods sent b\' the plaintiflfs were used at the factory in Stapleton, and all the proceeds of their sale after being manufactured, excepting a small amount, were turned over to, and received bv, the defendant, and were deposited b^- him, with other moneys belonging to him, in his bank account with the German-American Bank. It is shown on the part of the defendant that Michel was in fact the agent of his wife, and employed the defendant as his book-keeper and cashier, and that defendant kept an account of the moneys received, and checked them out as directed b\' Michel. All this, however, was unknown to plain- tiflfs. Defendant was in a position to know of all the orders sent, and no objection was made by him that the}' were not countersigned by him, or that Michel did not have authority- to bind him. These are the main features of the case. It seems to me ver\' clear that the evidence warranted the conclusion that the limitation or con- dition in the writing of April 29, 1886, that the orders should be coun- tersigned by the defendant, was waived b}' the defendant, or at least that the plaintiflfs had a right to believe that it was not required by defendant. In his letter of June 21, 1886, he excused the want of it, and treated it as a favor that the plaintiffs sent the goods without it ; and for four years and upwards, thereafter, he paid the bills without question, and without any suggestion that the countersigning was im- portant. If the limitation was waived, that left the declaration of defendant general, — that he would be responsible for all orders sent to plaintifl["s bj- Michel as agent. This responsibility was, in eflfect, acknowledged by the defendant, so far as the plaintiflfs were concerned, from June, 1886, to October, 1890. The plaintiflfs were informed of 4 50 PAGE V. METHFESSEL. [CHAP. I. no other person as principal. The defendant himself gave orders, and indicated a personal interest in the business. The authority given by the paper of April 29, 1886, was never revoked. The plaintiffs had a right to assume that the authority continued after October, 1890, as it had existed before. Bodine v. Killeen, 53 N. Y. 93. It is suggested that the credit was not given to defendant, because the goods were charged to ]\Iichel as agent. That form of charge indi- cated that credit was not given to Michel individually, and there was no other known to plaintiffs, to whom credit would be given, except the defendant. The plaintiffs' agent, before the commencement of tlie negotiation in April, 1886, was informed that Michel was insolvent, and it is easy to infer that no one intended or expected that credit would be given to him. It is also suggested that the plaintiffs did not testify that they relied on defendant. In such a case, it is said in Brown v. Bowen, 30 N. Y. 520, that, in the absence of proof of the effect of the admission on tlic party setting up the estoppel, it is for the jury to say whether, on the facts, the several essential parts of the estop- pel are proved. In the present case it was a question of fact whether the defendant, by his acts and conduct, held out Michel to the plaintiffs as his agent, and whether, from such acts and conduct, the plaintiffs were led to believe, and did believe, that the defendant was the prin- cipal, and relied on this in selling the goods in suit. The conclusion of the referee on this subject should not, I think, under the circumstances of this case, be disturbed. But it is said that the plaintiffs were guilty of laches in allowing the bills in suit to accumulate. Still, the defendant, by reason of his posi- tion in the business, presumptively knew all about the orders that were being sent to plaintiffs, and knew that the bills in suit were not paid. He was bookkeeper, and had charge of the finances, and the proceeds of all the goods sent by the plaintiffs, including those in suit, were turned over to him. He made no suggestion to the plaintiffs that he did not propose to pay any more, or proposed to change the current of the business. A large portion of the goods in suit were ordered before the payments on the prior account were completed. We fail to see any defence on the ground of laches. After the evidence before the referee was closed, and before the decision of the case, a motion, upon affidavits and notice to plaintiffs, was made, before the referee, to correct the minutes of the referee of the testimony of the defendant as to his answer to a particular ques- tion, or that the trial be opened. AflSdavits were used by plaintiffs in opposition to the motion, and there was a conflict as to what the testi- mony in fact was. The motion to correct the minutes was denied, but, on motion of the counsel for defendant, leave was given to defendant to recall the witness upon certain terms as to the costs of the motion, and the further attendance before the referee, and the expenses of rebutting testimony. Nothing was further done, the terms, apparently, not being satisfactory. Whether the minutes were correct was for the SECT, v.] PAGE V. METHFESSEL. 51 referee to determine, and his decision on that is conclusive. Tweed v. Davis, 1 Hun. 252. The terms for opening the case were within liis discretion, and no sufficient reason appears for this court to say that such discretion was abused. Hardix, p. J., and Parker, J., concurred. Judgment and order affirmed with costn} * " But the rule of law is clear, that, where one by his words or conduct wilfully causes another to helieve the existence of a certain state of things, and induces liiin to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time." Pickard v. Sears, 6 Ad. & E. 469, 474 (1837), per Lord Denman, C. J. " By the term ' wll/ulli/,' however, in that rule, we must understand, if not that the party represents that to be true which he knows to be untrue, at least tliat he means his representation to be acted upon, and that it is acted upon accordingly ; and if, whatever a man's real intention may be, he so conducts himself that a reason- able man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representa- tion would be equally precluded from contesting its truth ; and conduct, by negligence or omission, where there is a duty cast upon a person, by usage of trade or otherwise, to disclose the truth, may often have the same effect." Freeman v. Cooke, 2 Exch. 654, 663 (1848), per Pakke, B. " The agency may be constituted by an express limited authority to make such a contract, or a larger authority to make all falling within the class or description to which it belongs, or a general authority t(j make any ; or it may be proved by showing that such a relation existed between the parties as by law would create the authority ; as for instance, that of partners, by which relation, when complete, one becomes by law the agent of the other for all purposes uecessarj' for carrying on their particular partnership, whether general or special, or usually belonging to it; or the relation of husband and wife, in which the law, under certain circumstances, considers the hus- band to make his wife an agent. In all these cases, if the agent, in making the contract, acts on that authority, the principal is bound by the contract, and the agent's contract is his contract, but not otherwise. This agency may be created by the immediate act of the party, that is, by really giving the authority to the agent, or representing to him that he is to have it, or by constituting that relation to which the law attaches agency ; or it may be created by the representation of the defendant to the plaintiff, that the party making the contract is the agent of the defendant, or that such relation exists as to constitute him such ; and if the plaintiff really makes the contract on the faith of the defendant's representation, the defendant is bound ; he is estopped from disputing the truth of it with respect to that contract; and the representation of an authority is, quoad hoc, precisely the same as a real authority given by the defendant to the supposed agent. This representation may be made directly to the plaintiff, or made publicly so that it may be inferred to have reached him, and may be made by words or conduct. Upon none of these propositions is there, we apprehend, the slightest doubt ; and the proper decision of all these questions depends upon the proper application of these principles to the facts of each case, and the jury are to apply the rule with due assistance from the judge." Per Pollock, C. B., in Reynell v. Lewis, 15 M. & W. 517, 527-528 (1846). " First, then, as to the constitution by the principal of another to act as his agent. No one can become the agent of another person except by the will of that other person. His will may be manifested in writing or orally, or simply by placing another in a situation in which, according to ordinary rules of law, or perhaps it would be more correct to say, according to the ordinary usages of mankind, that other is understood to represent and act for the person who has so placed him ; but in every case it is only by the will of the employer that an agency can be created. "This proposition, however, is not at variance with the doctrine that where one 52 STATUTE OF FRAUDS. [CHAP. L SECTION V. (continued). (5) Appointment to execute an Instrument within the Statute OF Frauds. ^ The Statute of Frauds, 29 Car. II. c. 3, §§ 1-5, 17 (1676-7) : — » Sect. 1. . . . All leases, estates, interests of freehold, or terms of years, or an}- uncertain interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto law- fully authorized b}' writing, shall have the force and effect of leases or estates at will onlj', and shall not either in law or equity be deemed or taken to have any other or greater force or effect ; an}' consideration for making any such parol leases or estates, or any former law or usage, to the contrary notwithstanding. Sect. 2. Except nevertheless all leases not exceeding the term of three j^ears from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two third parts at the least of the full improved value of the thing demised. has so acted as from his conduct to lead another to believe that he has appointed Some one to act as his agent, and knows that that other person is about to act on that behalf, then, unless he interposes, he will, in general, be estopped from disputing the agency, though in fact no agency really existed. It is, however, necessary to bear in mind the difference between this agency by estoppel, if I may so designate it, and a real agency, however constituted. " Another principle to be kept constantly in view is, that the burden of proof is on the person dealing with any one as an agent, through whom he seeks to charge another as principal. He must show that the agency did exist, and that the agent had the authority he assumed to exercise, or otherwise that the principal is estopped from disputing it. " Unless this principle is strictly acted on, great injustice may be the consequence ; for any one dealing with a person assuming to act as agent for another can always save himself from loss or difficulty by applying to the alleged principal to learn whether the agency does exist, and to wliat extent. The alleged principal has no similar mode of protecting his interest ; he may be ignorant of the fact that any one is assuming to act for him, or that persons are proposing to deal with another under the notion that that other is his agent. It is, therefore, important to recollect con- stantly where the burden of proof lies." Per Lord Cranworth, dissenting, in Pole y.Leask, 33 L. J. n. s. Ch. 155, 161-162 (House of Lords, 1863). Similar to the principal case are Fanning v. Cobb, 20 Mo. App. 577 (1886); and Mook V. Parker, 9 N. Y. Misc. 90 (1894), s. c. 29 N. Y. Supp. 32. — Ed. 1 " All contracts are by the laws of England distinguished into agreements by spe- cialty, and agreements by parol ; nor is there any such third class, as some of the counsel have endeavored to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved." Per Sktnner, C. B., delivering the opinion of the judges, in Rann v. Hughes, 7 T. R. 346, n. (a) (House of Lords, 1778).— P>d. 2 1 Statutes Revised, 774; 8 Statutes of the Realm, Pickering's edition, 405. The text follows the spelling, punctuation, and numbering of Pickering's edition. — Ed. 8KCT. v.] EMMERSON V. HEELIS. 53 Sect. 3. . . . No leases, estates or interests, either of freehold, or terms of 3'ears, or any uncertain interest, not being copyhold or cus- tomary interest, of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall ... be assigned, granted or sur- rendered, unless it be b}' deed or note in writing, signed by the party so assigning, granting or surrendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law. Sect. 4. . . . No action shall be brought whereb}- to charge any executor or administrator upon an}' special promise, to answer dam- ages out of his own estate ; (2) or wherebj' to charge the defendant upon any special promise to answer for the debt, default or miscar- riages of another person ; (3) or to charge any person upon any agreement made upon consideration of marriage ; (4) or upon any contract or sale of lands, tenements or hereditaments, or an}' interest in or concerning them ; (5) or upon an}' agreement that is not to be performed within the space of one year from the making thereof; (6) unless the agreement upon which such action shall be biought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. Sect. 5. . . . All devises and bequests of any lands or tenements, devisable either by force of the statute of wills, or by this statute, or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by tlie i)arty so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect. Sect. 17. . . . No contract for the sale of any goods, wares and merchandizes, for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memo- randum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto law- fully authorized. EMMERSON v. HEELIS. Common Pleas. 1809. [2 Taunton, 38.] This was an action of assumpsit for not carrying off from the plaintiff's land certain lots, to wit, 27 different lots of turnips, alleged to have been bought by the defendant of the plaintiff, and for not 54 EMMERSON V. HEELIS. [CHAP. L bringing back and laying upon the land a certain quantit}' of manure ; the declaration also contained a count for turnips bargained and sold, and the common money-counts. The defendant pleaded the general issue. Upon the trial at the Westmoreland Spring assizes, 1808, a verdict was taken for the plaintiff for the amount of damages stated in the declaration, subject to a reference as to the amount of the plaintiff's demand, for which sura only a verdict was to be entered, and also as to tlie fact whether one Moss, who attended at an auction on behalf of the defendant, and there purchased the turnips for him, had been duly authorized by the defendant to act as his agent on that occasion. Upon both these points the arbitrator afterwards duly made his award, thereby fixing the amount of the plaintiff's damages at £46 6s., and declaring that Moss, a servant in husbandr}', retained and omplojed b}' the defendant, was dul}' authorized b}' the defendant to attend as his agent at the sale. The verdict was also made subject to the opinion of the Court of Common Pleas upon the following case. The plaintiff put up to sale b}- public auction, on the 25th of Sep- tember, 1806, a crop of turnips, then growing upon his land, in separate lots, and under certain conditions of sale. The defendant, by his agent Anthon_y Moss, his farming servant, attended at the sale, and being the highest bidder for 27 different lots, containing in the whole 108 stiches or furrows, was declared to be the purchaser thereof ; and the name of each purchaser, and amongst others, of the defendant was written in the third column of the sale bill b\' the auctioneer, opposite to each particular lot for which the other purchasers and the defendant were respectively declared the highest bidders, in the order in which tlie same were respectively knocked down. The defendant was not present at the auction ; neitlier did he, or Moss, sign any agreement in writing, nor did the auctioneer, otherwise than as is before stated, b}- putting down the names of the different purchasers, amongst whom was Moss for the defendant. The lots were not purchased by the defendant's agent in succession, but other purchasers purchased several intermediate lots. No single lot was knocked down to the defendant at a larger sum than £1 lis., although the amount of the 27 lots was £39 Is. The following was the form of the bill of sale prepared by the auctioneer, and by which the turnips were sold. It was divided into five columns. A bill of sale of turnips, by stiches, the property of George Emmer- son, at Kirb}-, in the parish of Bongate, in the count}' of West- moreland, that were sold the 25th of September, 1806, by John Wright, auctioneer. Time for payment till the 1st day of January, 1807, on giving satisfactory security before they depart the sale, or when demanded. Everv four stiches one cart load of manure. 1 2 3 4 5 No. of Stiches. No. of Lots. Purchasers' Names. Articles sold. Price. 4 1 Edw. Heelis. Lot 1. £1 7s SECT, v.] EMMERSON V. HEELIS. 65 The bill of sale was proposed at the trial, as evidence of the contracts of sale of the 27 lots, but it was not proved ; there was no stump on it, but it did not in any manner appear that there was an}^ fraud or intention to elude the stamp act in setting down eacli lot separately. The question for the opinion of the court was, whether the verdict should stand, or a nonsuit be entered. Lens, Serjt., for the plaintiff. Shejiherd, .Serjt., contra. Lens, in reply. Cur. adv. vult. On a following day in the same term, the court observed that the statute of frauds did not require that the agent for the buyer should be authorized bv writing ; and in the case of Coles v. Trecothick, and numerous other equity cases, a written authority had been held unnecessary, although the contrary had been once ruled ; if the defend- ant had subscribed his own name in the third column opposite to each lot as it was knocked down to him, no doubt the contract would have been good; or if he had expressly said to the auctioneer, " Put down my name." Mansfield, C. J., in this term delivered the opinion of the court. He observed, that some curious points had been agitated in this case, and recapitulated the facts. The questions are, whether the contract should be in writing, as being for a sale of goods amounting to £10. There is no ground for that objection, for the contract for each stich was a separate sale ; for the same reason no stamp is necessar}', because no one lot was worth £20. The third question is, whether it was an interest in land, and if so, whether a signing b}- the auctioneer is a signing by an agent for the purchaser ; this depends on the 4th section of the statute, for this is an agreement to purchase. The words of the statute are, " that no action shall be brought to charge any person upo7i any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them," unless the agreement, or some note or memorandum thereof, shall be in writing, and signed b}' the partv to be charged therewith, or some other person thereunto bj' him lawfull}' authorized. Now as to this being an interest in land, we do not see how it can be distinguisljed from the case of hops decided in this court ; and if the auctioneer is an agent for the pur- chaser, then the statute of frauds is satisfied, because the memorandum in writing is signed by an agent for the part^' to be charged. Now this memorandum is more particular than most memorandums of sale are ; and upon it the auctioneer writes down the purchaser's name. Bj- what authority does he write down the purchaser's name? By the authority of the purchaser. These persons bid, and announce their biddings, loudl}" and particularlv enough to be heard by the auctioneer. For what purpose do thej' do this? That he may write down their names opposite to the lots ; therefore he writes the name bv the authority of the purchaser, and he is an agent for the purchaser ; and 56 JOHNSON V. DODGE. [CHAP. I. it does seem, therefore, that this is a contract signed by an agent for the purchaser, and consequently is binding ; and judgment must be entered for the plaintiff.^ JOHNSON V. DODGE. Supreme Court of Illinois. 1856. [17 ///. 433.] Error to Cook Count}- Court of Common Pleas. ^ The bill was dismissed by Wilson, Judge, at Januarj' term of the Common Pleas Court, and thereupon the complainant brought this writ of error. B. /S. Jlori-is, and Waller & Caidjield, for plaintiff in error. I. JV. Arnold, and H. G. Miller, for defendant in error. Skinner, J. This was a bill in equity, for specific performance of a contract for the sale of land. The bill and proofs show that one Iglehart, a general land agent, executed a contract in writing in the name of Dodge, the respondent, for the sale of certain land belonging to Dodge, to one Walters, and received a portion of the purchase mone^' ; that Walters afterwards assigned the contract to Johnson, the complainant ; a tender of per- formance on the part of Walters, and on the part of Johnson, and a refusal of Dodge to perform the contract. The answer of Dodge, not under oath, denies the contract, and sets up the statute of frauds as a defence to any contract to be proved. The evidence, to our minds, establishes a parol authorit}' from Dodge to Iglehart to sell the land, substantially according to the terms of the writing. It is urged against the relief prayed, that Iglehart, upon a parol authority to sell, could not make for Dodge a binding contract of sale, under the statute of frauds ; that the proofs do not show an authority to Iglehart to sign the name of Dodge to the contract, and therefore that the writing is not the contract of Dodge ; that the writing not being signed by the vendee is void for want of iputuality ; that no sufficient tender of per- formance on the part of complainant is proved, and that the proof shows that the authorit}' conferred was not pursued b}* the agent. Equity will not decree specific performance of a contract founded in fraud, but where the contract is for the sale of land, and the proof shows a fair transaction, and the case alleged is clearly established, it will decree such performance. In this case, the contract, if Iglehart had authority to make it, is the contract of Dodge and in writing ; and it is the settled construction of 1 See Mews v. Carr, 1 H. & N. 484 (1856); Horton v. McCarty, 53 Me 394 (1866). — Ed. * The reporter's statement of the case is omitted. — Ed. SECT, v.] JOHNSON V. DODGE 57 the statute of frauds, that the authority to the agent need not be in writing ; and by this construction we feel bound. 1 Parsons on Con. 42, and cases cited; Doty v. Wilder, 15 111. 407; 2 Parsons on Con. 292, 293, and cases cited; Saunders' PI. and Ev. 541, 542, and 551 ; Story on Agency, 50 ; 2 Kent's Com. 614. Authority from Dodge to Igleliart to sell the land included the necessary- and usual means to make a binding contract in the name of the principal. If the authority to sell may be created by parol, from this authority may be implied the power to use the ordinary and usual meaijs of effecting a valid sale ; and to make such sale it was necessary to make a writing evidencing the same. If a party is present at the execution of a contract or deed, to bind him as a part}' to it, when his signature is affixed b^- another, it is necessary that the person so signing for him should have direct authority- to do the particular thing, and then the signing is deemed his personal act. Story on Agency, 51. In such case the part}- acts without the intervention of an agent, and uses tlie third person only as an instrument to perform the mere act of signing. This is not such a case. The agent was authorized to negotiate and conclude the sale, and for that purpose authority was implied to do for his principal what would have been incuml)ent on the principal to do to accomplish the same thing in person. Hawkins /'. Chance, 19 Pick. 502; 2 Par- sons on Con. 291 ; Stor}' on Agenc}', Chap. 6 ; Hunt v. Gregg, 8 Blackf. 105 ; Lawrence v. Taylor, 5 Hill, 107; 15 111. 411 ; Vanada v. Hopkins, 1 J. J. Marsh. 283 ; Kirby v. Grigsby, 9 Leigh, 387. The mode here adopted was to sign the name of Dodge " by" Igle- hart, "his agent,*' and it is the usual and proper mode in carrying out an authority to contract conferred on an agent. But if the signing the name of the principal was not authorized by the authority to sell, 3'et the signature of the agent is a sufficient signing under the statute. The language of the statute is, " signed by the party to be charged therewith, or some other person thereto b}- him lawfully authorized." If Iglehart had authorit}' to sign Dodge's name, then the contract is to be treated as signed b}- Dodge ; and if Iglehart had authority to sell, in anj- view his signature to the contract is a signing b}- "some other person thereto by him lawfulh' authorized," within the statute. Truman v. Loder, 11 Ad. and El. 589 ; 2 Parsons on Con. 291. It is true that author! t}' to convey must be in writing and by deed ; for land can onl}- be conveyed by deed, and the power must be of as high dig- nity as the act to be performed under it. It was not necessary- to the obligation of the contract that it should have been signed bj- the vendee. His acceptance and possession of the contract, and payment of money under it, are unequivocal evidences of his concurrence, and constitute him a party as fully and irrevocably as his signing the contract could. 2 Parsons on Con. 290; McCrea v. Purmort, 16 Wend. 160; Shirly V. Shirly, 7 Blackford, 452. We cannot question the sufEcienc}' of the tender in equit}', to entitle the complainant to specific performance. Webster et al. v. French et 58 HIBBLE WHITE V. M'MORINE. [CHAP. I. al., 11 111. 278. Nor do we find any substantial departure in the con« tract from the authority proved. While we hold that the authority to the agent who for his principal contracts for the sale of land, need not be in writing, yet we should feel bound to refuse a specific performance of a contract made with an agent upon parol authority, without full and satisfactory' proof of the authority, or where it should seem at all doubtful whether the authority was not assumed and the transaction fraudulent. Decree reversed and cause remanded. Decree reversed. SECTION- V. (continued). (C) Appoixtment to execute a Specialty. HIBBLEWHITE v. McMORINE. Exchequer. 1840. [6 M. .j- W. 200.] The judgment of the court ^ was delivered bj- Parke, B. In this case, which was argued last term, upon show- ing cause against a rule for a new trial, we are of opinion that the rule must be made absolute. It was an action brought by the plaintiff to recover damages for not accepting and paying for fifty shares in the Brighton railroad ; which, by the contract, were to be transferred, delivered, and paid for on or before the 1st of March, 1839, or at an}' intermediate date that the defendant might require them, b}' paying for them at par, together with all calls that might have been paid on the same, the plaintiff bind- ing himself to execute to the defendant, or his nominee, a legal transfer of the shares, on or before the 1st of March. Tlie declaration avers that on the 1st of March the plaintiff was ready and willing to transfer the shares, if the defendant would have paid for the same ; and offered to the defendant, or an^' nominee of the defendant, a legal transfer. This averment was traversed in one plea, and in another it was pleaded that at the time of the agreement, or on the 1st March, or between those times, the plaintiff was not the proprietor of the shares, nor had he good right or title to execute a legal transfer of such shares, according to the agreement. The replication states that on the 1st March, the plaintiff was the proprietor of the shares, and then had good right and title to execute a legal transfer thereof. 1 The opinion states the case. The reporter's statement is omitted. — Ed. SECT, v.] HIBBLEWHITE V. m'.MORINE. 59 The question for consideration arises on those two pleas. Upon one or both, the title of the plaintiff to make the transfer ma}' be ques- tioned. It is not material upon which ; but there seems no doubt but that it arises on tlie traverse of the readiness to convey, which must involve a capacity to do so, as there is no other averment in tlie dec- laration which expresses or implies that the plaintiff had a title to convey on the 1st of March. It appears on the trial that between the date of tiie agreement and the 1st of March, some instalments became due, which the pluiutifT did not pay; and on the 1st of March (before which day the defendant had not desired any transfer) the plaintiff's broker, who had purciiased fifty shares from one Pritchard, produced to the defendant a conveyance executed b}' Pritchard, of these shares, with a blank for the name of the transferee, and offered to fill it up with that of the defendant or his nominee, on tlie defendant's paying tlie price. The defendant refused to do so. The plaintiff sold the shares, and the action was brought for the difference. The objections to tlie plaintiti's recovering were, 1st, that he was incapable of conveying on the 1st of March, because Pritchard was then the owner, and not the plaintiff ; 2ndly, that the conveyance was invalid by the express provisions of the Brigliton Railway Act, 1 Vict. c. cxix. sect. 157, as the calls due before that date were not paid ; and Srdl}', that the conveyance tendered was void at common law, as there was a blank in it for the name of the transferee. It is unnecessary for us to give any opinion, except upon the last of these objections; but it may not be improper to observe that there is great weight in the first, because tlie defendant has bargained for a conve3ance from the plahitiff, which must be intended to be a convey- ance in the statutory form ; and, consequently, for the implied covenant of the lilaintiff for title, and Pritchard's implied covenant is not the same thing. The last objection, however, we are all of opinion, must prevail. The second objection, which would otherwise have been valid, has been waived, as it appears on the evidence at the trial that the defend- ant agreed that the plaintiff should not pay the intermediate instal- ments ; and, as the contract with respect to shares of this description is not required by the Statute of Frauds to be in writing, since the}' are neither an interest in land, nor goods and merchandises, there might be a waiver by parol. As there was such a waiver, the only objection would be to the statement of the contract in the declaration, on the ground of variance, which ought to have been made at tlie trial. The conve^'ance required by the statute must, we think, be by deed ; and a deed, with the name of the vendee in blank at the time it was sealed and delivered is void. The instrument of transfer, by the 15.5th section, must be under the hands and seals of both parties. It was argued that it did not follow, from the instrument being under seal, that it was a deed ; for warrants of justices, subpoenas, and awards, are under seal, and are not deeds. 60 HIBBLEWHITE V. M'MORINE. [CHAP. 1 But this is an instrument containing a contract of the parties ; if a contract is required to be by instrument under seal, it must be intended that it should be bij deed: and the context shows that the legislature so intended it, for it is afterwards called a deed or conveyance (probably a synonyme for the same thing), and a deed of sale or trans- fer, that is, a deed of sale or of transfer. Assuming, then, the instrument to be a deed, it was wholl}' improper, if the name of the vendee was left out; and to allow it to be afterwards filled up by an agent appointed by parol, and then delivered in the absence of the principal, as a deed, would be a violation of the principle that an attorne}- to execute and deliver a deed for another must himself be appointed by deed. The only case cited in favor of the validity of a deed in blank, afterwards filled in, is that of Texira V. Evans, cit. 1 Anst. 228, where Lord Mansfield held that a bond was valid which was given with the name of the obligee and sum in blank to a broker to obtain mone}' upon it, and he borrowed a sum from the plaintiff', and then inserted his name and the sum. But this case is justly questioned by Mr. Preston, in his edition of Shepp. Touch. 68, " as it assumes there could be an attorne}- without deed ; " and we think it cannot be considered to be law. On the other hand, there are several authorities that an instrument which has a blank in it, which prevents it from having an}- operation when it is sealed and delivered, cannot become a valid deed b}' being afterwards filled up. In Com. Dig. Fait, A. 1, it is said, "If a deed be signed and sealed, and afterwards written, it is no deed." .To the same effect is She[)p. Touch. 54. In Weeks v. Maillardet, 14 East, 568, the instrument had nothing to operate upon, as it referred to a schedule as annexed, which was not annexed at the time of execution ; and it was held that the subsequent annexation, in the absence of one of the parties, did not give it operation as part of the deed. So, where a bail bond was executed, and a condition afterwards inserted, it was held bad as a bail bond. Powell v. Duff, 3 Camp. 181 ; and see Bull. N. P. 267. The cases cited on the other side were all of them distinguishable. In one, Hudson v. Revett, 5 Bing. 372, a blank in a part material was filled up ; but, having been done in the presence of the party, and ratified by him, it was held that there was evidence of re-delivery. In another. Doe v. Bingham, 4 B. & Aid. 672, the blanks filled up were in no respect material to the operation of the deed, with respect to the party who executed before they were filled up, — as to him the deed was complete. In a third, Matson v. Booth, 5 M. & Sel. 233, the point decided was that a complete bond was not rendered void by the subsequent addition of another obligor with the assent of all parties. It is unnecessary to go through the others which were cited on the argument. It is enough to say that there is none that shows that an instrument which when executed is incapable of having any opera- tion, and is no deed, can afterwards become a deed by being com- pleted and delivered bj' a stranger in the absence of the party who executed, and unauthorized by instrument under seal. SECT, v.] GARDNER V. GARDNER. 61 In truth, this is an attempt to make a deed transferable and negoti- able like a bill of exchange or exchequer bill, which the law does not permit. Mule absolute.^ GARDNER v. GARDNER. Supreme Judicial Coukt of Massachusetts. 1850. (5 CusL 483.] This was a writ of entry to foreclose a mortgage of land in Nan- tucket, tried before Fletcher, J., in this court. The demandant claimed as the assignee of Barker Burnell, whose title was derived from a deed purporting to be executed by Poll}' Gwinn and by the tenant. The conditional judgment was entered for the demandant, subject to the opinion of the court upon the question, whether the last-mentioned deed was properly executed. The subscribing witness thereto testified that, at the request of the tenant, he went to the house of Polly Gwinn, and there saw all the parties sign the deed. When it was time foi Polly Gwinn to sign, her daughter, Mary G. Gardner, offered to sign for her mother, who assented by a nod of the head, and the daughto then and there signed her mother's name thus: "Polly Gwinn by Mary G. Gardner," in the presence of her mother, and of the witnesSj who saw all the signatures made. The case was argued in writing by C bunker, for the demandant, and T. G. Coffin^ for the tenant. Shaw, C. J. The only question is upon the sufficiency of the exe. cution of a mortgage deed, as a good and valid deed of Polly Gwinn. The execution of the deed is objected to on the ground that when a deed is executed b}' an agent or attorney' the authority to do so must be an authority of as high a nature, derived from an instrument under the seal of the grantor. This is a good rule of law, but it does not apply to the present case. The name being written by another hand, in the presence of the grantor, and at her request, is her act. The disposing capacity, the act of mind, which are the essential and effi- cient ingredients of the deed, are hers, and she merely uses the hand of another, through incapacity or weakness, instead of her own, to do the physical act of making a written sign. Whereas, in executing a deed by attorney, the disposing power, though delegated, is with the 1 Ace: Williams v. Crntcher, 6 Miss. 71 (1840) ; Graham v. Holt, 3 Iredell's Law, 300 fl84.3) ; Preston v. Hull, 23 Gratt. 600 (1873). According to Blood v. Goodrich, 12 Wend. 525 (1834), an admission that an agent had authority to execute a certain specialty is prima facie, evidence of an authonty under seal. Paine v. Tucker, 21 Me. 138 (1842), is contra. See Tapper v. Foulkes, 9 C. B. N. 8. 797 (1861). — Ed. 62 BLACKNALL V. PARISH. [CHAP. L attorney, and the deed takes effect from bis act ; and therefore the power is to be strictly examined and construed, and the instrument conferring it is to be proved b}- evidence of as high a nature as the deed itself. To hold otherwise would be to decide that a person hav- ing a clear mind and full capacit3', but through physical inability inca- pable of making a mark, could never make a convej-ance or execute a deed ; for the same incapacity to sign and seal the principal deed would prevent him from executing a letter of attorney under seal. It appears to us that the distinction between writing one's name in his presence and at his request, and executing a deed b}' attorney, is obvious, well founded, stands on satisfactory reasons, and is well sus- tained by authorities. Ball t'. Dunsterville, 4 T. R. 313 ; The King v. Longnor, 1 Nev. & M. 576 ; s. c. 4 B. & Ad. 647 ; 2 Gr. Ev. § 295. We think the deed was well executed by Polly Gwinn ; and judgment must therefore stand for the demandant.^ BLACKNALL v. PARISH. Supreme Court of North Carolina. 1860. [6 Jones' Eq. 70.] Cattse removed from the Court of Equit}' of Orange Count}'. This was a bill filed for the specific performance of a contract, by which the defendant bound himself to conve}* the plaintiff a tract of land, described by its metes and bounds, and lying in Orange county. The allegations in the bill (which are sustained by the evidence filed) are, that the defendant, being about to remove from the count}- of Orange, where he lived, to the western part of the State, authorized one Harrison Parker to sell for him the land in question, and to enable him to do so, he prepared a deed, describing the premises, and pur- porting to convey the same in fee, but leaving therein blanks as to the name of the bargainee and the price, with instructions, when he might make sale of the land, to fill up the blanks in the deed, and deliver it to the purchaser ; that afterwards Parker made a sale to the plaintiff, at a reasonable price, and accordingly filled up the deed in the requisite particulars, with the name of the plaintiff and with the price ; both supposing the instrument was thus made good as a deed ; that Black- nail gave his bond for the money to the defendant's agent, who used the same in the purchase of a slave for the defendant, and it was sub- sequently paid to defendant's assignee. 1 See Hudson v. Revett, 5 Bing. 368 (1829); Vandruff r. Rinehart, 29 Pa. 232 (1857) ; Mutual Benefit Life Ins. Co, v. Brown, 30 N. J. Eq. 193 (1878). See also the discussion in Wallace v. McCullough, 1 Rich. Eq. 426, 438-439 (1845), and Inhabi- tants of South Berwick v. Huntress, 53 Me. 89, 95-96 (1865). — Ed. SECT, v.] BLAGKNALL V. PARISH. 63 The prayer of the bill is for a specific performance of the contract, evidenced by the imperfect deed, and to stay, by an injunction, the proceedings of an action of ejectment, which the defendant had brought against the plaintiff, and which was then pending in the Superior Court of Orange County. The defendant answered, denying the authority of Parker to sell to Blacknall, and alleging that he had special objections to plaintiffs having the land, which are stated ; and that the deed in question was prepared for the purpose of consummating a sale to one Hopkins, with whom he was in treaty when he left the county, and that his agent had no authority to deliver it to an}' one else. He relied on the Statute of Frauds as a bar to the plaintiffs equity. On the coming in of the answers, the injunction, which had issued ia vacation, was dissolved, and the bill continued over as an original bill. Proofs were taken, which sustained the plaintiffs allegations and dis- proved those of the defendant. The cause, being set for hearing, was transmitted to this court by consent Norwood, for the plaintiff. Graham^ for the defendant. Battle, J. Upon examination of the testimony' taken in this cause, we are entirely satisfied that the land mentioned in the pleadings was contracted to be sold to the plaintiff bj' an authorized agent of the defendant; that the authorit}' under which the agent acted was b}' parol, and that the contract was entered into by the agent's filling up certain blanks in an instrument, which the defendant had signed and sealed, and left with the agent to be b\- him made complete b}' filling up such blanks and delivering it as the deed of the defendant to the person who should become the purchaser. We are further satisfied that what was intended to be a sale was made fairly, and for a price which, at the time, was not inadequate, and further, that the price was subsequentlv received by the defendant. It has been properl}- admitted b}- the plaintiff that the instrument which was delivered to him b\' the agent of the defendant as a deed for the land in question could not operate as such, because it was not com- plete when it was signed and sealed b}- the defendant. In the case of Davenport w. Sleight, 2 Dev. & B. L. 381, and again in Graham v. Holt, 3 Ired. L. 300, it was held that an instrument signed and sealed in blank, and handed to an agent onl}' verballv authorized to fill up the blank and deliver it, was not the bond of the principal, and that after declarations of the principal approving of the deliver}- bj' the agent, made in the absence of the instrument, and without an}' act in relation to it, would not amount to an adoption and ratification of the delivery. The case before us is one of a deed for land, instead of a bond for the payment of money, but the principle is the same. The instrument must be complete before it can be delivered by an agent, acting under a mere parol authority, as the act and deed of his principal. The plaintiff, not being able to set up a legal title under the instru- 64 BLACKNALL V. PARISH. [CHAP. I. ment in question, insists, nevertheless, that it is evidence of a contract, the specific performance of which he has a right to have enforced in a court of equit}'. The defendant objects to this, and relies, in support of his objection, upon the statute of frauds, which declares ''that all contracts to sell or convey any lands, etc., shall be void and of no effect unless such contract, etc., or some memorandum or note thereof, shall be put in writing, signed by the party to be charged therewith, or by some other person b}- him thereunto lawfully' authorized," etc. Rev. Code, c. 50, sec. 11. The question, then, is: 1. Whether the contract for the sale of the land was put in writing ; and 2. Was it signed by the party to be charged therewith, or b}- an\' person b}' him thereto law- fully authorized? We think that tiiere can be no doubt that the instru- ment, which for the reasons above stated could not operate as a deed, may be regarded as a contract put in writing. It is in truth a written contract more than ordinaril}' complete, both in form and substance, and the onl}- question admitting of an}' sort of doubt is, whether it has been signed b}- the defendant, or by any legally authorized agent. We are of opinion that it cannot be considered as a contract with the plaintiff, signed b}' the defendant himself, independently of an}' act of his agent, because, when the defendant put his name and seal to it, no such contract had been made. But we think that, in legal effect, it was signed for him, and in his name, by his properl}' constituted agent. The failure of the agent to make the instrument operate as the deed of his principal, did not prevent him from causing it to operate as tbe simple contract of his principal ; for nothing is more common than for an agent to fill up blanks in a promissory note signed by his prin- cipal, and nobody has ever doubted that the principal was bound by it. That the authority of the agent, in all such cases, ma}', under the stat- ute of frauds, be by parol, is well settled. 1 Parsons on Cont. 42 ; 2 Kent's Com. 612 ; Coles v. Trecothic, 9 Ves. jun. 250. The plaintiff is entitled to a decree for a specific performance, and also to recover back all the costs which he has been compelled to pay in the action of ejectment at law, and also the costs which he has had to pay upon the dissolution of the injunction in the court of equity below ; to ascertain which an account may be ordered. Per Curiam, Decree accordingly. S£UT. v.] VOSE V. DOLAN. 65 VOSE V. DOLAN. Supreme Judicial Court of Massachusetts. 1871. [108 Muss. 155.] Tort for the conversion of a lot of earth, gravel, and stone. The case was referred by the Superior Court to an arbitrator, the material parts of whose report were as follows : — The parties agreed in writing on March 14, 1861, that the defendant should make certain streets and remove the earth and gravel in certain mounds or knolls on the plaintiff's estate ; and the defendant began the work, but had not finished removing all the earth and gravel on April 14, 1864. The plaintiff offered to prove that on that day the parties signed and sealed an instrument in duplicate, of which the following is all that is material : "Memorandum of an agreement made this four- teenth day of April, 1864, by and between Thomas Dolan and Francis Vose witnesseth, that on the fourteenth day of March, 1861, the said parties entered into an agreement in writing in reference to making certain streets and excavating and removing certain mounds or knolls on an estate of said Vose in Dorchester, according to certain specifica- tions therein set out, and certain profiles made b}' Alexander Wads- worth, and therein referred to, which said agreement ma}' be referred to in connection with this memorandum ; and whereas said agreement has not been fulh' performed by said Dolan, and much earth and gravel contemplated b}' the parties to said agreement to have been removed according to said specifications and profiles still remain on the premises aforesaid, the said Vose, in consideration of , paid by the said Dolan, herebv sells, transfers and conve3's to the said Dolan all the remaining earth and gravel on said premises, which the parties under said agreement intended should be excavated and removed according to the aforesaid specifications and profiles, after completing and grading the streets named in said agreement as therein set forth, and being in quantity . The said Dolan, in considera- tion of the said sale and transfer, hereb}' promises and agrees that he will faithfully and fully, and to the satisfaction of said Wadsworth, execute and complete all the filling, excavating, and grading, contem- plated and agreed b}- him to be performed in the aforesaid agreement, and in the manner therein specified, on or before the first daj* of August, 1864, and will forfeit all right to all earth or gravel which shall remain on said premises on said first day of August, 1864, and which ought to have been removed by him in the due and proper exe- cution of said agreement." The plaintiff further offered to prove that the defendant then made his two promissory notes, each for the sum of $500, and delivered them to the plaintiff, in part pa\'ment for the earth, gravel, and stone, and 5 tb VOSE V. DOLAN. LCHAP. 1. signed another note, and handed it to Wadsworth, who was a surve3'or, a blank being left therein for the amount ; tliat the quantity of earth, gravel, and stone remaining had not then been ascertained ; that it was agreed b}' the parties that Wadsworth should measure and ascertain the quantity-, and should fill the blank in the note by inserting the total price of the earth, gravel, and stone, at $1.25 per square, less the sum of $1,000, the amount of the two notes of $500 each; that the said instrument of two parts was then executed by the parties, the one being taken by the defendant, and the other b}' Wadswortli ; that blanks were left in each copy for the number of squares sold and the considerations ; that these blanks were to be filled b}' Wadsworth, when he should ascertain the quantity ; that Wadsworth did within a short time ascertain bj- measurement the quantity to be 1,808 squares, and the price thereof to be $2,260, and caused to be inserted in the note the words "twelve hundred and sixty" before the word "dollars," and in the cop}' of the instrument which he had retained, the words " eighteen hundred and eight squares," as the quantity sold, and the words " twent}- two hundred and sixty dollars," as the consid- eration for the sale ; and that the blanks in the copy taken by the defendant have not been filled. To the admission of this evidence, and to the introduction in proof of the instrument and of the note, the defendant objected. But the objection was overruled. It appeared that the defendant had no notice of Wadsworth's intention to fill the blanks, or of how he intended to fill them. The refex'ee found " that, b}' the instrument aforesaid, the defendant was bound to remove the earth, gravel, and stone, which he had pur- chased, by August 1, 1864; that he failed to remove 700 squares, through no default of the plaintiff; that he thereupon ceased to have any right of property in the 700 squares, and was a wrong-doer in after- wards removing and appropriating them to his use ; that the 700 squares were of the value of $875 ; that the plaintiff was entitled to judgment for that sum, and interest, and his costs of court ; but that if the court should be of opinion that the above evidence should not have been received, or that upon the evidence the instrument was not the deed of the defendant, the plaintiff should take nothing by his writ, and the defendant should recover his costs of court." Tiie Superior Court ruled that the evidence was properly received, and that the instrument was the deed of the defendant, and ordered judgment to be entered for the plaintiff for the amount found by the referee. The defendant alleged exceptions. W. Colbuni, for the defendant. 0. Allen, for the plaintiff. Colt, J. Upon the question submitted by the report of the referee, we are clearl}- of opinion that evidence of the means taken to ascertain the quantity of earth, gravel, and stone which was to be removed under the contract of April 14, and of the subsequent filling of the blanks in the note and sealed instrument with the ascertained amounts, was 8ECT. v.] DICKEKMAN V. ASHTON. 67 properly received by him ; and that the instrument containing the terms of the contract was binding upon the defendant as his deed, notwithstanding the subsequent filling of the blanks. It was a com- pleted, intelligible contract when it was executed. The existence of the blanks did not impair its validity. The quantity of earth sold was definitely indicated by reference to specifications and profiles, and it was not necessary to state the number of squares sold or the price to be paid for them. This was a matter of computation from data given. If the blanks had been left, the rights of the parties would have been the same as if filled before delivery. The alleged alteration of the instrument was therefore an immaterial alteration, in no way changing its terms or enlarging the defendant's liabilit}' under it. There is no pretence that it was fraudulently made ; on the contrarj', the blanks were filled by the surveyor, in accordance with the agreement of the parties at the time the deed was executed. It is now well settled that an immaterial alteration of a sealed instru- ment, not fraudulent, will not invalidate it, though made b}- the part}' claiming under it. Brown v. Pinkham, 18 Pick. 172; Commonwealth V. Emigrant Industrial Savings Bank, 98 Mass. 12 ; Chessman v. Whit- temore, 23 Pick. 231 ; Adams v. Frye, 3 Met. 103. The case is not within those in which it is held that blanks in a deed constituting a material part of the instrument itself cannot, in the absence of the maker, be filled by parol authorit}', because authority' to make a deed must be given by deed. Burns y. Lj^nde, 6 Allen, 305 ; Basford v. Pearson, 9 Allen, 387. Exceptions overruled. DICKERMAN v. ASHTON. Supreme Court of Minnesota. 1875. [21 Minn. .538.] Appeal by defendant from an order of the Court of Common Pleas for Ramsey County, Hall, J., presiding, refusing a new trial, after a trial by the court without a jury. Lorenzo Allis^ for appellant. Bigeloio^ Flandrau, & Clarlc, for respondent. GiLFiLLAN, C. J. This is an action to enforce specific performance of a contract to convey real estate. The contract was in writing, and purported to be under the seal of the defendant, the vendor, and was made on his part by an agent, with only oral authority to make it. The defendant makes the point that the proof of the authority of the agent was not of that clear and satisfactory character which a court of equity will insist upon as to contracts the specific performance of which is sought. But the " statement of the case " does not show that 68 CLOUGH V. CLOUGH. [CHAP. L it contains all the evidence on that point ; and where such is the case, this court presumes that there was sufficient evidence to justify the finding of fact of the court below. Henry v. Hinman, 21 Minn. 378. It was decided in Brown v. Eaton, 21 Minn. 409, that the authority of an agent to make such a contract need not be in writing. The defendant objects that the contract is void, because it purports to be a specialty, and that the authority of an agent to bind his principal by contract under seal must also be under seal. The proposi- tion is true, that an agent, not authorized by deed, cannot execute a contract which shall be valid, as a deed or specialty, against his prin- cipal. But in such case, if the contract need not be by deed, it will be valid as a simple contract, nothwithstanding a seal is attached to it. Minor v. Willoughby, 3 Minn. 225. The order denying a new trial is affirmed.^ JOSEPH E. CLOUGH and others v. WILLIAM M. CLOUGH- Supreme Judicial Court of Maine. 1882. [73 Me. 487.] On report. Writ of entry, dated September 3, 1880. Plea, general issue. At the trial the defendant offered in evidence the deed of John Clough to him. The plaintiffs objected to the deed upon the ground that it was not properly executed. For the purposes of this trial it was admitted that the name of the grantor in the deed was signed by the grantee, at the grantor's request and in his presence, and that the grantor personally acknowledged the deed, and that it was duly delivered to the defendant. The case was then submitted to the law court. If such a deed is valid in law the case is to stand for trial ; if not, default is to be entered. A. P. Gould, for the plaintiffs, contended that when one person writes the name of another at his request, he does it as agent. Thus if A. writes B.'s name to a deed, to assert that because B. is present, giving personal and verbal authority to A., A. becomes B., that it is B.'s own act precisely as if no person was acting but himself, and no act of agency is done, is too transparent a sophism to be adopted by a court of law. The grantee cannot take the acknowledgment of the grantor. Bea- man v. Whitney, 20 Maine, 413 ; Gibson v. Norway Savings Bank, 69 Maine, 579. » See Worrall v. Mmm, 5 N. Y. 229, 238-243 (1851), Jones v. Horner, 60 Pa. 214 (1869), Long i'. Hartwell, 34 N. J. L. 116, 121-122 (1870), ace; and Wheeler v. Nevins, 34 Me. 54 (1852), contra. See also Russell v. Anuable, 109 Mass. 72. 74. 77 (1871). — Ed. SECT, v.] CLOUGH V. CLOUGH. 69 How vastly more important that the signature of the grantor should be affixed by a disinterested person. A deed is good without acknowl- edgment, that being required simply before recording. See Wash. Real Prop. (2 ed.) 601 (575). To allow the grantee to act as agent of the grantor in executing the deed, would be a violation of one of the cardinal rules of the law of agency. C. E. Littlejield, for the defendant, cited : Bird v. Decker, 64 Maine, 552; Lovejoy v. Richardson, 68 Maine, 386 ; Bartlett v. Drake, 100 Mass. 174; Holbrook r. Chamberlain, 116 Mass. 155; Wellington u. Jackson, 121 Mass. 159 ; Alhim v. Perry, 68 Maine, 234 ; Wood v. Goodridge, 6 Cush. 117; 3 Wash. Real Prop. 120. \Valton, J. The only question is whether a deed can be made valid b}' subsequent acknowledgment and delivery, when the name of the grantor has been signed to it b}' the grantee. We think it can. If one acknowledges and delivers a deed which has his name and a seal affixed to it, the deed is valid. No matter by whom the name and seal were affixed. No matter whether with or without the grantor's consent. The acknowledgment and delivery are acts of recognition and adoption so distinct and emphatic that they will preclude the grantor from afterward denying that the signing and sealing were also his acts. The}- are his by adoption. Without deliver}' the instrument has no validit}'. B}- force of our statutes the instrument is incomplete without acknowledgment. Till one or both of these acts are performed the instrument has no more validit}' than a blank deed. By taking the instrument in this incomplete condition and completing it, the grantor makes it his deed in all its particulars. He adopts the signature and the seal the same as he does the habendum and the covenants which were inserted bv the printer of the blank. The deed is not sustained on the ground of ratification, but adoption. Ratification applies to agenc\'. No question of agenc\' arises in this class of cases. The valid- ity of the deed cannot rest upon the ground of agenc\' or ratification. If such were the case the authority or the ratification would have to be by instrument under seal ; for authority or ratification must be of as high a character as the act to be performed or ratified. If the act is the execution of a sealed instrument, it must be authorized or ratified by a sealed instrument. We therefore repeat that the validity of the instrument in this class of cases does not rest on agency or ratification, but on adoption. No matter by whom the signing and sealing were performed, nor whether with or without the grantor's consent. By completing the instrument, he adopts what had previously been dono to it, and makes it his in all its particulars. It is not often important to notice this distinction ; but it is impor- tant in this case in order to avoid the apparent absurdity of holding that an agent can contract with himself, can be both grantor and grantee. An agent cannot contract with himself. He cannot as 70 WHITE V. DUGGAN. [CHAP. L agent for the grantor execute a deed to himself. But he can prepare a deed running to himself, even to the signing and sealing, and if tlie grantor then adopts the deed by personal!}' acknowledging and deliver- ing it, it will be a legal and valid instrument. But its validity rests upon the ground of adoption, not agenc}' or ratification. And when the word "ratified" or " ratification " is used in this class of cases, as it often is, it will be found on careful examination that it is used in the sense of " adopted" or " adoption," and not in the technical sense in which it is used in the law of agency. Bartlett v. Drake, 100 Mass. 174 ; Story on Agency, §§ 49 and 252 ; Lovejoy v. Richardson, 68 Maine, 386, and cases there cited. Action to stand for trial. WHITE, Judge of Probate, v. DUGGAN and Others. Supreme Judicial Court of Massachusetts. 1885. [140 Mass. 18.] Holmes, J. This is an action on a probate bond. The following facts are relied on as a defence b}' the sureties. Having signed another bond which turned out to be wrong in form, they signed this one in blank at their piincipal's request, and upon his representation that the penal sum in the former bond ($2000) was satisfactory, and that the new bond was to be for the same amount. The principal filled out the blank with a larger penal sura, and delivered the bond, but subseqnentl}' told the sureties that it was in the penal sum of $2000, which the)' believed until after this action was brought. It does not appear in terms that the representation that the penal sum of the former bond was satisfactory was false, or that the judge of probate did not require the larger sum for the first time when the second bond was offered. And if the bill of exceptions should be taken at all strictly against the defendants, it would seem that what- ever expectations they may have entertained as to the action of the Probate Court when they handed the blank bond over to their principal, they handed it to him to be filled in as the Probate Court might require, being chargeable with knowledge that the time for final action upon the matter had not yet come. In this view of the facts, the only question is whether the case is governed by Burns v. Lynde, 6 Allen, 305, and, more especially, by Basford v. Pearson, 9 Allen, 387 ; and we are of opinion that it is not. In Burns v. L3'nde, a deed had been delivered executed in blank, and a parol authorit}' was relied on to make valid a subsequent filling in of the blanks in the absence of the grantor. The filling in of the blanks stood on the same footing as signing and sealing, and could be authorized only by a power under seal. Basford v. Pearson applied the same principle, without fur- SECT, v.] WHITE V. DUGGAN. 71 ther discussion, where a deed was signed and sealed b}' husband and wife, and he subsequently filled in the blanks and made altera- tions, with the knowledge of the grantee, in the absence of the wife and by her parol authority, and then delivered the deed. It may be somewhat hard to reconcile the latter case with those decisions which sustain the filling in of blanks in the presence of a party who has previously signed and sealed, even after delivery, on the ground that this is equivalent to a new deliver^'. For the reason given imports that an authorized deliver}- will cure a defect of authority in the writing, which seems indisputable. 2 Bl. Com. 307. Perkins, pi. 130. But we do not understand that it was intended to deny this principle, as it is expressly recognized by the same judge in Burns y. Lynde, 6 Allen, 310. At all events, when the grantee or obligee is ignorant of the order in which the several parts of the instrument are written, and the delivery to him is duly authorized, he is entitled to assume that the instrument was so written as to bind the grantor or obligor from whose control it comes. We should add that, in this commonwealth at least, we cannot question for an instant that the authority to deliver mereh* may be given b}' parol. This does not seem to have been doubted in Basford v. Pearson. See Parker y. Hiil, 8 Met. 447 ; Foster v. Mansfield, 3 Met. 412. To admit a doubt on this point would shake many titles. If we are to interpret the bill of exceptions more tavorably for the defendants than we have done thus far, and to take it that they onlj authorized the bond to be filled in with a penal sum of S2000, — and even if we take the further step of assuming that limitation to have carried with it the understanding between them and the principal that they onh' assented to a deliver}- if the bond was filled in as they expected it to be, — we are still of opinion that no defence is made out. We are aware that there are several cases more or less opposed to our conclusion. People v. Bostwick, 32 N. Y. 445 ; Ohio v. Boring, 15 Ohio, 507 ; United States v. Nelson, 2 Brock, 64 ; Preston v. Hull, 23 Grat. 600, and cases cited. But we think that the prevailing tendencv, both in this State and elsewhere, has been in the direction we have taken. Thomas v. Bleakie, 136 Mass. 568 ; Butler v. United States, 21 Wall. 272 ; Dair v. United States, 16 Wall. 1 ; South Ber- wick V. Huntress, 53 Maine, 89 ; State v. Peck, 53 Maine, 284 ; State V. Pepper, 31 Ind. 76 ; Millett v. Parker, 2 Met. (Ky.) 608. These decisions are generall}' put on the ground of estoppel. It has been debated in England whether, and under what circumstances, there could be an estoppel by negligence. Swan v. North British Australasian Co., 2 H. & C 175. And it has been admitted that there might be, in a supposed case hardh- as strong as this. Tayler v. Great Indian Peninsula Railwa}-, 4 DeG. & J. 559, 574. A specialty deriving its validit}- from an estoppel in pais is perhaps somewhat like Nebuchadnezzar's image with a head of gold supported by feet of clay. But if the case is properl}- put on that ground, then, as was pointed 72 PHELPS V. SULLIVAN. [CHAP. I out in Commonwealth v. Pierce, 138 Mass. 165, the difference between intent and negligence, in a legal sense, is ordinarily' nothing but the difference in the probability, under the circumstances known to the actor and according to common experience, that a certain consequence, or class of consequences, will follow from a certain act ; and it follows that the question when an estoppel will arise is simply one of degree. If, on the other hand, the true question is the scope of the principal's authority to deliver the bond, — bearing in mind that an authorized deliv- er}' will cure defects in the writing of the bond, that the authority to deliver may be by parol, and that the scope of authority maj' be greater than is wished by the obligor, ostensible authorit}- being actual authority, — then the question is equally one of degree, depending on the partic- ular circumstances, just as the same question is in tort. Quacunqiie via, then, all that we have to do is to deal with the case before us ; and it will serve no useful purpose to consider whether, if the surety had intrusted the bond to the principal, with no authority to deliver it at all, or whether, if he had handed a blank sheet of paper, with his sig- nature and seal at the bottom, to an agent, directing him to deliver it filled out one wa}', and he had filled it out in an entirely' different way and delivered it, such cases would fall on one or the other side of the line. We are of opinion that, when a bond such as this is intrusted to the principal for his use, to fill it up and deliver it, the possibility of his being required by the probate judge to insert a penal sum larger than the suret}" directed, and of his doing so, is so obvious and so near, that the surety must be held to take the risk of his principal's conduct, and is bound b}' the instrument as deliv^ered, although delivered in disobedience of orders, if, as here, the obligee has no notice, from the face of the bond or otherwise, of the breach of orders. To hold other- wise would be to disregard the habits of the community. Exceptions overruled} J. L. Eldr'idge & J. E. Cotter^ for one suret}'. E. G. Pratt, for the other suret}'. J. F. Wiggin & B. M. Fernald, for the plaintiff. PHELPS V. SULLIVAN. Supreme Judicial Court of Massachusetts. 1885. [140 Mass. 36.] Morton, C. J. This is a writ of entry to forclose a mortgage. The demandant claims under a mortgage from the tenant to Nathan P. Pratt and an assignment thereof b}- said Pratt. It appeared at the trial, that said Pratt executed and acknowledged the assignment in * Compare Goodyear Dental Vulcanite Co. v. Bacon, 151 Mass. 460 (1890). — Ed. SF^T- v.] PHELPS V. SULLIVAN. 75 blank, and orall}- authorized his son, when he could find a person to purchase the mortgage, to write in the name of such person as the gran- tee, and to deliver the assignment. The son negotiated the mortgage to one Simonds, filled in his name as grantee, and then delivered to him the assignment. He afterwards reported what he had done to Nathan P. Pratt, who replied, " It is all right." The only question presented by the bill of exceptions is whether, upon these facts, there was a valid assignment to Simonds. The tenant contends that the assignment was invalid, reiving upon the rule of the common law that an authority to an agent to execute a deed or other specialty must be under seal. But we do not think the case is governed by this rule. Where a deed purports to be executed by an agent, or where the person with whom an agent is dealing knows that he is acting as agent, it ma}' be tliat such person must see to it at his own peril that the agent has legal autliority. But in this case the assignment did not disclose, and Simonds did not know, that the son was acting as agent in any respect except to deliver the assignment. It is settled that an authority to deliver a deed or other specialty may be bj' parol. Parker v. Hill, 8 Met. 447. A deed takes effect from its delivery ; and it ma^- well be held that the author- ity to deliver, which may be oral, is an authority to dehver the deed in the condition in which it is when delivered, if there are no circum- stances of suspicion to put the grantee upon inquiry. When a grantor signs and seals a deed, leaving unfilled blanks, and gives it to an agent with authority- to fill the blanks and deliver it, if the agent fills the blanks as authorized, and delivers it to an innocent grantee without knowledge, we think the grantor is estopped to deny that the deed as delivered was his deed. Otherwise, he may by his voluntary act enable his agent to commit a fraud upon an innocent party. Whether, if the agent violates the instructions in filling the blanks, the grantor would not in like manner be bound, we do not discuss, as it is not involved in this case. To hold that such deeds are invalid, because the authority to fill the blanks is not under seal, would tend to unsettle titles, and would be mischievous in its results. Few deeds are written by the grantors. Most are written b}- scriveners, and a grantee to whom a deed is delivered has no means of determining whether the bod}' of the deed was written before or after the signature was affixed. It would be very dangerous to allow titles to be defeated by parol proof that a deed, without suspicion on its face, dul}- signed and sealed b}- the grantor, which he authorized to be delivered, was in fact written in some part after he executed it, by an agent having only oral authority. We think a person taking such a deed in good faith has the right to rely upon it ; and that the grantor cannot be permitted to aver that it is not his deed. White u. Duggan, ante., 18. The cases of Burns v. Lynde, 6 Allen, 305, and Basford v. Pearson, 9 Allen, 387, are distinguishable from this case. In Burns v. L3'nde, the deed had been delivered to the grantee signed in blank, and ha 74 CRIBBEN V, DEAL. [CHAP. I. himself, after the delivery, filled the blanks. In Basford v. Pearson, a deed had been signed by the defendant in which the name of the grantee was left blank. The deed contained the covenant against the claims of " all persons claiming by, through, or under us, but against none others." The grantor gave it to her Imsband to be de- livered. He, by parol authority from his wife, but in her absence, and with the knowledge of the grantee, inserted the name of the grantee, and erased the words which limited the covenant, so as to make it a general covenant of warranty against all persons. He then delivered the deed. If he had made these material altei-ations b}' parol authority from his wife, and without the knowledge of the grantee, a different question would have been presented, more nearly resembling the question before us. Upon the facts presented in the bill of exceptions, we are of opinion that the assignment to Simonds was valid ; and therefore that the ruling ordering judgment for the tenant was erroneous. Exceptions sustained} G. H. Stevens, for the demandant. S. Bancroft, for the tenant. CRIBBEN V. DEAL. Supreme Court of Oregon. 1891. [21 Ore. 211.] Multnomah Count}-. L. B. Stearns, Judge. Plaintiff appeals. Affirmed. W. 31. Gregory, for appellant. Killin, Starr, <& Thomas for respondent. Lord, J. This is a suit in equit}', brought b}- the plaintiffs to have a deed of general assignment set aside and declared void, and to have the attached propert}' applied in payment of their judgment. The single proposition of law involved is, whether the name of the grantee can, by some one authorized upon parol authority of the grantor, be inserted in a blank left in a deed of general assignment, after the deed has been signed, sealed, and acknowledged, but before delivery. For the purposes of this case, the facts are these : that the deed of assignment was made on the 17th of November, 1888, by C. E. Deal. -T. C. O'Reilly, and J. W. Brockett, partners doing business under the firm name of Deal, O'Reilly, & Co., to Thomas Connell for the benefit of creditors : that it was in all things completed and signed and sealed and acknowl- edged, except that a blank was left for the name of the grantee ; that Mr. F. A. E. Starr was authorized to insert as the name of such grantee 1 Ace. : Nelson v. McDonald, 80 Wis. 605 (1891). —Ed. SECT, v.] CRIBBEN V. DEAL. 75 any person satisfactory to himself and the members of such firm ; that on the following da}', Mr. Starr, with the consent of the members of sucli firm, inserted the name of Thomas Connell as assignee in such deed, and the deed was delivered to Thomas Connell, and on the next day was recorded. Upon this state of facts, the contention is that such deed is void because the name of Thomas Council was not in- serted when the deed was signed and sealed. It is said in Sheppard's Touchstone, 54, that " every deed well made must be written, i. e., the agreement must all be written before the sealing and delivery of it ; for if a man seal and deliver an empty piece of paper or parchment, albeit he do therewithal give commandment that an obligation or other matter shall be written in it, and this be done accordingly, yet this is no good deed." This is founded upon that ancient and technical rule of the common law, that the authority to make a deed, or to alter or fill a blank in some substantial part of it, cannot be verbally conferred, but must be created by an instrument of equal dignit}'. As the deed was under seal, to alter or complete it by the insertion of the name of the grantee required the authoritv to be under seal. So firmly rooted was this principle that it mattered not with what solemnities a deed may have been signed and sealed, unless the grantee's name was inserted, and delivery was made by him, or some one legall}' authorized under seal, it was a nullity. It imposed no liability on the party making it, nor conferred an}' rights upon the party receiving it ; it was, in fact, no deed. Hence, it was held that parol authority to fill a blank with the name of a grantee could not be conferred without violating established principles of law, and rendering the deed void. Tliis doctrine still prevails in England. It is true that in the case of Texira v. Evans, cited in Master v. Miller, 1 Anstr. 225, Lord Mansfield held otherwise ; but this was in effect overruled in Hibble white v. McMorine, 6 Mees. & W. 200, on the ground that an authority to execute a sealed instrument could not be given by parol, but must be given by deed, although this latter case .seems more or less trenched upon b}' the decision in Eggleston v. Gut- teridge, 11 Mees. & W. 465, and by Davison v. Cooper, 11 Mees. & W. 778, and in West v. Steward, 11 Mees. & W. 47. But the rule has never been universally accepted in this country ; and however the holding of some courts may be, still the better opinion and the prevailing current of authority is, that when a deed is regular!}^ exe- cuted in other respects, with a blank left therein for the name of the grantee, parol authorit}' is sufficient to authorize the insertion of the name of such grantee, and that when so filled out and delivered, it is a valid deed. It is true that Chief Justice Marshall, in United States v. Nelson, 2 Brock. 74, felt bound to follow the ancient rule ; but his opinion clearly indicates he felt that the authority to fill a blank in an instrument under seal should be held to be valid. lie says : " The case of Speake V. United States, 9 Cranch, 28, in determining that parol evidence of 76 CRIBBEN V. DEAL. [CHAP. L such assent ma}' be received, undoubtedly goes far toward deciding it» and it is probable that the same court may completely abolish the dis- tinction in this particular between sealed and unsealed instruments." Again : "If this question depended on those moral rules of action which in the ordinar}' course of things are applied by courts to human transactions, there would not be much difficulty in saying that this paper ought to have the effect which the parties at the time of its execution intended it should have." And he concludes with this state- ment : "I say with much doubt, and with a strong belief that this judgment will be reversed, that the law on the verdict is, in my opinion, with the defendants." The rule was purely technical, and the outgrowth of a state of aff'airs and condition of the law which does not now exist. The reason of the law is the life of it, and when the reason fails, the law itself should fail. At the present day the distinction between sealed and unsealed instru- ments is fast disappearing, and the courts are gradually doing away with them. As Judge Redfield said: "But it [the rule] seems to be rather technical than substantial, and to found itself either on the policy of the stamp duties, or the superior force and sacredness of contracts b}- deed, both of which have little importance in this countr}'. And the prevailing current of American authorit}', and the practical instincts and business experience and sense of our people, are undoubt- edly otherwise." 1 Redfield on Law of Railways, 124. In Drury v. Foster, 2 Wall. 24, the court says : "Although it was at one time doubted whether parol authority' was adequate to autliorize an alteration or addition to a sealed instrument, the better opinion of this da}' is that the power is sufficient." Again, in Allen v. Withrow, 110 U. S. 119, the court says : "It may be and probably is the law in Iowa, as in several States, that the grantors in a deed conveying real property, signed and acknowledged with a blank for the name of a grantee, may authorize another party by parol to fill up the ])lank." " But, " he continues, "there are two conditions essential to make a deed thus executed in blank operate as a conveyance of the property described in it : the blank must be filled by the part}^ authorized to fill it, and this must be done before or at the time of the delivery of the deed to the grantee named." In the case at bar these conditions were fulfilled. In Inhabitants, &c., v. Huntress, 53 Me. 89, 87 Am. Dec. 535, the court held that a party executing a deed, bond, or other instrument, and delivering the same to another as his deed, knowing there are blanks in it to be filled necessary to make it a perfect instrument, must be considered as agreeing that the blanks may be thus filled after he has executed it. In delivering the opinion of the court, Kent, J., said : "The rule invoked is purely technical. Practicall}' there is no real distinction in this matter between bonds and simple contracts. There is no more danger of fraud or injury or wrong in allowing insertions in a bond than there is in allowing them in a promissor}' note or bill of SECT, v.] CKIBBEN V. DEAL. 77 exchange ; both are agreements or contracts, and in neither can unau- thorized alterations be made with impunity. Considering that the assumed difference rests on a mere technical rule of the common law, we do not think that the rule should be extended beyond its necessarj- limits, viz., that a sealed instrument cannot be executed by another, so far as its distinguishing characteristic as a sealed instrument is in ques- tion, unless by an authority under seal." Likewise in Bridgeport Bank V. New York, &c. R. R. Co., 30 Conn. 274, Ellsworth, J., said : "Nor can any reason be assigned which is founded in good sense, and is not entirely technical, why a blank in an instrument under seal may not be filled up by the party receiving it after it is executed as well as any other contract in writing, where the parties have so agreed at the time. In either case the contract, when the blank has been filled, expresses the exact agreement of the parties, and nothing but an extreme techni- cal view, derived from the ancient law of England, can justify the making of any distinctions between them." It is to be noted that both of these adjudications were b}' courts of States where seals were not abolished. In Burnside v. Wayman, 49 Mo. 357, where the name of a grantee in a trust deed was left in blank, Wagner, J., said : " It is contended that no recover}' could be had or relief granted on the first count, because no grantee was named in the deed of trust, and that in consequence thereof the instrument was void, and no title conveyed ; but we think otherwise. Whatever ma}' have been determined in some of the old books, the better doctrine is against such a position." And subsequently, in Field v. Stagg, 52 Mo. 534, 14 Am. Rep. 435, this doctrine was affirmed in all its breadth, the court saying: "A deed regularly executed in other respects, with a blank left therein for the name of the grantee, and placed in that condition in the hands of a third person with verbal authority, but no authority under seal from the person who executed it, to fill up the blank in his absence, and deliver the deed to the person whose name is inserted as grantee, when so filled out and delivered is a valid deed." In Duncan V. Hodges, 4 McCord, *239, 17 Am. Dec. 734, it is held that a deed executed with blanks, and afterwards filled up and delivered by the agent of the party, is good. So in Van Etta v. Evenson, 28 Wis. 33, 9 Am. Rep. 486, it was held that where a note and mortgage otherwise fully executed, but with a blank in each for the name of the payee and mortgagee, were delivered to an agent who was to procure from whom- soever he could a loan of money thereon for the maker, this shows an intention that the agent should fill the blanks, and when so filled the instruments were valid without a new execution and delivery. And the same doctrine was expressly affirmed in Schintz v. McManamy, 33 Wis, 301, the court, by Lyon, J., saying: " It was doubtless competent foi the grantors to authorize Emil by parol to insert the name of the gran- tee in the deed after they had signed and acknowledged the same.'' And in State v. Young, 23 Minn. 551, it was held that authority to fill a blank in a sealed instrument may be given by parol, and that such 78 CKIBBEN V. DEAL. [CHAP. L authority may be either express or implied from circumstances, and that it may be implied from circumstances whenever these, fairly considered, will justify the inference. So in Swartz v. Ballon, 47 Iowa, 188, 29 Am. Rep. 470, where the owner of land executed a deed in blank and placed it in tlie hands of another part}- under circumstances which raised an implied authority in the latter to insert the name of the grantee, it was held that the insertion of the grantee's name, either by the party receiving the deed or by some one authorized by him, made the instrument perfect as a conveyance. Without referring to the authorities at greater length, there are numerous other cases supporting the same doctrine : Wiley v. Moor, 17 Serg. «fe R. 438 ; 17 Am. Dec. 696 ; Smith v. Crooker, 5 Mass. 538 ; Gibbs V. Frost, 4 Ala. 720 ; Wooley v. Constant, 4 .Johns. 54 ; 4 Am. Dec. 246 ; Ex parte Decker, 6 Cow. 60 ; Richmond Mfg. Co. v. Davis, 7 Blackf 412; Boardman t-. Gore, 28 N. J. Eq. 517 ; 18 Am. Dec. 73 ; Camden Bank v. Hall, 14 N. J. L. 583 ; Ragsdale v. Robin- son, 48 Tex. 379. The contrary rule was adopted in Upton v. Archer, 41 Cal. 85; 10 Am. Rep. 266; Preston v. HuU, 22 Gratt. 600; 14 Am. Dec. 153; Ingram v. Little, 14 Ga. 173; 58 Am. Dec. 549. It seems to us that the weight of authority and better opinion is, that parol authority is sufficient to authorize the filling of a blank by the insertion of the name of the grantee in a deed after its execution but before delivery, as in the case at bar. There is no pretence of any mistake or fraud, or that the blank was not filled as authorized and directed. In a word, that it was filled by a party authorized to fill it, and was done after its execution and before its delivery to the grantee named. Nor is it questioned but what the deed faithfully expresses the intention of the parties, and was duly executed for the purposes specified ; and in such case it seems to us complete effect ought to be [given] to that intention, notwithstanding the technical rule of the com- mon law in respect to such instruments. As Mr. Justice Swa3'ne said : " If a person competent to convey real estate sign and acknowledge a deed in blank, and deliver the same to an agent, with an express or implied authorit}- to fill up the blank and perfect the conveyance, its validity could not be well controverted." Drur^' v. Foster, 2 Wall. 24. It results that the decree dismissing the bill must be sustained.^ 1 For the doctrines, English and American, as to the power of a partner to hind by specialty copartners who have hy parol given assent, see Steiglitz ». Egginton, Holt, N. P. 141 (1815); Gram v. Seton, 1 Hall, 262 (1828); Parsons on Partnership, § 122, n. (0- As to granting to an officer or other agent of a corporation power to execute an instrument under the corporate seal, see Savings Bank v. Davis, 8 Conn. 191 (1830) ; Burrill v. Nahant Bank, 2 Met. 163(1840); Hopkins v. Gallatin Turnpike Co., 4 Humph. 403 (1843) ; Angell & Ames on Corporations, §§ 282-283, 292; 4 Thompson on Corporations, §§ 5107-5108, 5177. — Ed. SECT, l.j BKAULIEU V. FINGLAM. 79 CHAPTER II. THE AGENT'S POWER TO SUBJECT HIS PRINCIPAL TO LIABILITIES. SECTION I. The Rise of the Doctrine. BEAULIEU V. FINGLAM. Common Pleas. 1401. [}'. B.2 11. IV. 18, pi. 6.J One brought such a writ. St Willihelmus Beaulieu, etc. pone Hoge- mm J^iiKjlam, quare cum secundum legem et consuetudlnem regni uos- tri Anglioi hactenus obtenta, quod quilihet de eodem regno ignem suum salvo et secure custodiat, et custodlre teneatur, ne per ignem suum dampnnm aliquod vicbds suis idlo modo erenlat: prcjed' Mogerus if/uem suum apud Carlloti tarn negligenter cnstodivit, quod j^ro defectu debitm custodice igtiis prmdicti, bona et cattcdla ipsius Willihelmi ad valentiam quadraginta libraruvi in domibiis ibidem existentia ac domus prcedictoe ad tunc et ibidem per ignem ilium cumbusta extiterunt, ad dampmim ijjsius W. etc. And counted accordingh'. Hornby. Judgment of the count, for he has counted on a common custom of the realm, and has not said that this custom has been used, etc. To which the whole court said pass over, for common law of this realm is common custom of the realm, and then Thirnixg [C. J.] said that a man shall answer for his fire which through misfortune burns another's goods. And some were of opinion that the fire cannot be called his fire, for this reason, that a man cannot have property in fire ; and that opinion is not agreed to. Markham [J.]. A man is held to answer for the act of his servant or of his hosteler in such case, for if my servant or my hosteler puts a candle on a wall, and the candle falls in the straw and burns all my house and the house of my neighbor also, in this case I shall answer to my neighbor for the damage that he has. Which was conceded by the court. 80 BEAULIEU V. FINGLAM. fCHAP. II. Hornby. Then he ought to have had a writ Qunre domum suam ardebat vel exarsit. Hull. That will be contrary to all reason to put blame or fault on a man where he does not have any on him, for negligence of his servants cannot be called his feasance. Thirning [C. J.]. If a man kills or siaj's a man through misfortune, he shall forfeit his goods, and it is proper that he should have his char- ter of pardon of grace. To which the court agrees. Markham [J.]. I shall answer to my neighbor for another who enters m^- house, with my leave or my knowledge, or is a guest through me or through my servant, if he does, or any one of them does, such a thing, as with a candle or other thing, by which feasance the house of m}' neighbor is burned ; but if a man from outside my house, against my will, puts the fire in the straw of my house, or elsewhere, by which my house is burned, and also the houses of m}- neighbors are burned, for this I shall not be held to answer to them, etc., for this cannot be said to be through wrong on my part, but against my will. Hornby. This defendant is ruined and impoverished forever if this action be maintained against him, for then twenty other such suits will be brought against him of like matter. Thirning [C.J.]. What is that to us? It is better that he should be wholly undone than that the law should be changed for him. And afterwards the}' were at issue that the house of the plaintitf was not burned through the fire of the defendant, ready ; and the other side said the contrary. Doctor and Student, Dialogue I., Chapter IX. (1518) : i — The law of England is, that if a man command another to do a tres- pass, and he doth it, that the commander is a trespasser. And I am in doubt, whether that it be only by a maxim of the law, or that it be b}' the law of reason. . . . Doctor and Student, Dialogue II., Chapter XLTI. (1518): ' — . . . And now I intend to show thee some particular cases, where the master after the laws of the realm shall be charged by the act of his servant, bailiff, or deput}-, and where not. . . . First, for trespass of battery, or wrongful entry into lands or tene- ments, ne yet for felony or murther, the master shall not be charged for his servant, unless he did it by his commandment. Also, if a servant borrow money in his master's name, the master 1 From the eighteenth edition, p. 32. — Ed. 2 From the eighteenth edition, pp. 236-2.38. The previous parts of the same chap tftr treat of a public officer's responsibility for the acts and defaults of his deputy. — Ed. SECT. I.] DOCTOR AND STUDENT. 81 shall not be charged with it unless it come to his use, and that by his assent. And tlie same law is, if a servant make a contract in his master's name, the contract shall not bind his master, unless it were by his master's commandment, or that it came to the master's use by his assent. But if a man sends his servant to a fair or market to bu^- for him certain things, though he command him not to bu}' them of no man in certain, and the servant doth according, the master shall be charged : but if the servant in that case buy them in his own name, not speaking of his master, the master shall not be charged, unless the things bought come to his use. Also, if a man send his servant to the market with a thing which he knoweth to be defective, to be sold to a certain man, and he selkth it to him, there an action lieth against the master : but if the master bid- deth him not to sell it to an}' person in certain, but generally to whom he can, and he selleth it according, there lieth no action of disceit against the master. Also, if the servant keep the master's fire negligently, whereby his master's house is burnt, and his neighbor's also, there an action lieth against the master. But if the servant bear fire negligentl}' in the street, and thereby the house of another is burned, there lieth no ac- tion against the master. . . . Also, if a man make another his general receiver, and that receiver receiveth money of a creditor of his master, and maketh him acquit- tance, and after payeth not his master ; yet that payment dischargeth the creditor : but if the creditor hath taken an acquittance of him without paying him his money, that acquittance onh* were no bar to the master, unless he made him receiver by writing, and gave him au- thority to make acquittances, and then the authorit}' must be shewed. And if the creditor in such case, b}' agreement between the receiver and him, delivered to the receiver an horse, or another thing in recom- pence of the debt, that deliver}- dischargeth not the creditor, unless it be delivered over unto the master, and he agree to it. For the receiver bath no such power to make no such commutation, but his master give bim special commandment thereto. Also, if a servant shew a creditor of his master, that his master sent him for his money, and he payeth it unto him ; that payment discharg- eth him not, if the master did not send him for it indeed, except that it came after unto the use of the master by his assent.^ . . . 1 The early reports, statutes, and text-books afford ample material for testing the accuracy of Doctor and Student's presentation of the early law as to a principal's re- eponsibility for his agent's acts. Authorities useful for this purpose are : Mortimer's Case, Bigelow's Placita Anglo-Normannica, 59 (temp. W. I. ); Abbot of Abingdon v. Anskill, id. 62 (1088-1089); Jurnet v. Church of St. Edmund, id. 223 (1176); Bos- tard V. Duket, Bractou's Note Book, pi. 873 (1232); Statute of Westminster II., 13 Ed. I., Stat. 1, c. 11, § 10 (1285) ; Anonymous, Y. B. 35 Ed. I. (Rolls ed.) 567 (1307) Statute of the Staple, 27 Ed. III., Stat. 2, c. 19, § 1 (1353) ; W.'s Ca.se, Y. B. 27 Ass. pi. 5, fo. 133 (1354) ; J. II.'s Case, Fitzherbert's Abridgment, Dette, pi. 3 (1378) ; s. c Bellewe's Cas. temp. Rich. II. 136; Anonvmous, Y. B. 9 H VI. 53 b, pi. 37 (1430J; 6 82 BOSON V. SANDFORD. [CHAP, IL MICHAEL V. ALESTREE. King's Bench. 1676. [2 Levinz, 172.] w Case, for that the defendants in Lincoln's-Inn-Fields, a place where people are always going to and fro about their business, brought a coach with two ungovernable horses, and eux improvide incuNte et absque debita consideratio7ie ineptiti(di?iis loci there drove them to make them tractable and fit them for a coach ; and the horses, because of their ferocity being not to be managed, ran upon the plaintitf, and hurt and grievously wounded him. The master was absent, yet the action was brought against him as well as his servant, and both found guilt}'. And now 't was moved in arrest of judgment, that no sciens is here laid of the horses being unrul}', nor any negligence alleged, but e contra, that the horses were ungovernable : yet judgment was given for the plaintiff, for 't is alleged that it was improvide et absque debita consider ati one ineptitiidinis loci ; and it shall be intended the master sent the servant to train the horses there. ^ BOSON V. SANDFORD et al. King's Bench. 1690. [2 Salk. 440.-2] Case against A. and B., part-owners of a ship, for that he put goods on board, and the defendants undertook to carry them safely for hire, Pigot's argument in the Duchess of Suffolk's Case, Y. B. 8 Ed. IV. 11-11 b (1468) ; Anonymous, Y. B. 11 Ed. IV. 6, pi. 10 (1471) ; Anonymous, Y. B. 13 H. VII. 15 b, pi. 10 (1497-8); Fitzherbert's Natura Brevium, 120 G (1534); Seaman and Browning's Case, 4 Leon. 123 (1589) ; Waltham v. Mulger, Moore, 776 (1605) ; Southern v. How, Popham, 143 (1618) ;* s. c. Cro. Jac. 468, 2 Rolle's Reports, 5, 26; Seignior v. Wolmer, Godbolt, 360 (1623); Kingston v. Booth, Skinner, 228 (1684-5). — Ed. 1 Per curiam, s. C. sub nom. Michell v. Allestry, 3 Keble, 650 : "It's at peril of the owner to take strength enough to order them, and the master is as liable as the servant if he gave order for it, and the action is generally for bringing them thither, which is intended personal." Per curiam, s. c. sub nom. Michil v. Alestree, 1 Ventris, 295: "It was the de- fendant's fault, to bring a wild horse into such a place where mischief might prob- ably be done, by reason of the concourse of people. Lately, in this court an action was broiight against a butcher, who had made an ox run from his stall and gored the plaintiff ; and this was alleged in the declaration to be in default of penning of him." And per Wylde, J. : " If a man hath an unruly horse in his stable, and leaves open the stable door, whereby the horse goes forth and does mischief, an action lies against the master." — Ed. 2 s. c. Skinner, 278; Comberbach, 116; 1 Shower, 29; 3 Mod. 321; Carthew, 58; 3 Levinz, 258. —Ed. SECT. I.] WAYLAND'S CASE. 83 but 3et were so negligent that the goods were spoiled. Upon not guilty pleaded, in evidence it apj^eared that C. and D, were also part- owners, and that the ship was under the care of a master, to whom the goods were delivered ; and this being found specially, it was argued pro quer., that the action is grounded on the wrong, and may be against all or any of the proprietors. There was also another doubt started, and that was, whether the owners were liable, when in tiuth they did not undertake, but in fact the master sujyer se suscepitf P]tre, Justice, held there was no difference between a land-carrier and a water-carrier, and that the master of a ship was no more than a servant to the owners in the eye of the law ; and that the power he has of hypothecation, etc., is by the civil law. Ft /)er Holt, C. J. The owners are liable in respect of the freight, and as employing the master; for whoever employs another is answerable for him, and undertakes for his care to all that make use of him. 2dly, the court held that all owners were liable, for they are charged, in point of contract, as employers, and are all equall}- entitled to the freiglit. Either master or owners may bring an action for the freight ; but if the owners bring the action, they must all join ; erffo the}' must all be joined ; as the freight belongs to all, so all are equally undertaking ; and a breach of trust in one is a breach of trust in all ; as where two make one officer, the act of one is the act of the other. Sdl}', the court held this was not an action ex delicto, but ex quasi conti'actu, and it was not the contract of one but of all ; that there was no other tort but a breach of trust. Therefore the court gave judgment for the defendant, because all the owners were not joined.^ SIR ROBERT WAYLAND'S CASE. Nisi Prius. 1690. [3 Salk. 234.-] He used to give bis servant money eveiy Saturda}' to defray the charges of the foregoing week, the servant kept the monej', yet per Holt, C. J., the master is chargeable, for the master at his peril ought to take cai-e what servants he employs ; and 'tis more reasonable, that he should suffer for the cheats of his servant than strangers and tradesmen ; so if a smith's man pricks my horse, the master is liable. 1 Compare Boucher v. Lawson, Lee's Cas. temp. Hardwicke, 85, 194 (1735-6). — En 2 8.0. 1 Shower, 95. — Ed. 84 TURBERVILLE V. STAMPE. [CHAP. II. BOULTON V. ARLSDEN. Nisi Pkius, Holt, C. J. 1697. [3 Sulk. 234.] In this case it was held, that where a servant usually buys for his master upon tick, and takes up things in his master's name, but for his own use, that the master is liable, but 't is not so where the master usually gave him ready money. That where the master gives the servant money to buy goods for him, and he converts the mone}' to his own use, and buys the goods upon tick, yet the master is liable, so as the goods come to his use, otherwise not. That a note under the hand of an apprentice shall bind his master, where he is allowed to deliver out notes, tho' the money is never applied to the master's use. But where he is not allowed or accustomed to deliver out notes, there his note shall not bind the master, unless the money is applied to the master's use. TURBERVILLE v. STAMPE. King's Bench. 1697. [1 Ld. Raym. 264.1] Case grounded upon the common custom of the realm for negligently keeping his fire. The plaintiff declares that he was possessed of a close of heath, and that the defendant had another close of heath adjoining ; that the defendant tarn improvide et negligenter custodivit ignem suum that it consumed the heath of the plaintiff. Not guilty pleaded. Verdict for the plaintiff. And Gpxdd, king's serjeant, moved in arrest of judgment that this action ought not to be grounded upon the common custom of the realm ; for this fire in the field cannot be called ignis sims, for a man has no power over a fire in the field, as he has over a fire in his house. And therefore this resembles the case of an innkeeper, who must answer for an}' ill that happens to the goods of his guest, so long as they are in his house ; but he is not answerable, if a horse be stolen out of his close. And in fact in this case the defendant's servant kindled this fire by way of husbandry, and a wind and tempest arose, and drove it into his neighbour's field ; so that it was not any neglect in the defendant, but the act of God. Sed non 1 s. c. Comberbach, 459 ; Skinner, 681 ; Carthew, 425 ; Comyns, 32 ; 1 Salk. 13 ; 12 Mod. 151 ; Holt, 9. The pleadings are given in 3 Ld. Raym. 250. — Ed. SECT. I.] TURBEKVILLE V. STAMPE. 85 allocatur. For, per curiam, as to the matter of the tempest, that ap- peared only upon the evidence, and not upon the record, and therefore the King's Bench cannot take notice of it, but it was good evidence to excuse the defendant at the trial. Then as to the other matter, per Holt, Chief Justice, Kokeby and EyuE, Justices, a man ought to keep the fire in his field as well from the doing of damage to his neighbour, as if it were in his house, and it may be as well called suus, the one as the other ; for the property of the materials makes the property' of the fire. And therefore this action is well grounded upon the common custom of the realm. But Tukton, Justice, said that these actions grounded upon the common custom had been extended ver}* far. And therefore (by him) the plaintiff might have case for the special damage, but not grounded upon the general custom of the realm. But by the other justices judgment was given for the plaintiff. Note Mr. Northey for the plaintiff cited 40 Assis. pi. 9 ; Htz. issue 88, double pica, 31 ; 28 Hen. 6, 37; 21 Hen. 6, 11, b. Rast. Entr. 8, and Old Entr. 219, where the declaration is general for negligently keeping his fire in such a parish, without specifying a particular house or ground. But Holt, Chief Justice, answered that that -was an antiquated entry. And (b\- him) if a stranger set fire to my house, and it burns my neighbour's house, no action will lie against me ; which all the other justices agreed. But if my servant throws dirt into the highway, I am indict- able. So in this case, if the defendant's servant kindled the fire in the way of husbandry and proper for his employment, though he had no express command of his master, yet his master shall be liable to an action for damage done to another by the fire ; for it shall be intended that the servant had authority from his master, it being for his master's benefit.^ ^ Skinner, 681, s. c. : " It was moved in arrest of judgment, that it does not appear in this case to be done by the command of the master; and then it being out of his house, he is not responsible, 2 H. 4, 24, for if tlie servant does it without the command of the master, it is not the negligence of the master ; but it was answered, that it being after a verdict, be it by negligence or by misfortune, it is all one ; for now they are upon the record, and it may be his fire in a field, as well as in a house ; and it was matter of evidence if it be his fire or not." Comberbach, 459, s. c. : " Holt, C. J. . . . And tho' I am not bound by the act of a stranger in any case, yet if my servant doth any thing prejudicial to another, it shall bind me, where it may be presumed that he acts by my authority, being about my business." — Ed. 86 JONES V. HART. [CHAP. II. MIDDLETON v. FOWLER. Nisi Prius. 1698. [1 Sulk. 282. J An action upon the case upon the custom of the realm was brought against the defendants being masters of a stage-coach ; and the plain- tiff set forth that he took a place in the coach for such a town, and that in the journey the defendants by their negligence lost a trunk of the plaintiff's. Upon not guilt}' pleaded, upon the evidence it appeared that this trunk was delivered to the person that drove the coach, and he promised to take care of it, and that the trunk was lost out of the coachman's possession ; and if the master was chargeable with this action, was the question. Holt, C. J., was of opinion that this action did not lie against the master, and that a stage-coachman was not within the custom as a carrier is, unless such as take a distinct price for carriage of goods as well as persons, as wagons with coaches ; and though mone}- be given to the driver, j'et that is a gratuit}', and cannot bring the master within the custom ; for no master is chargeable with the acts of his servant but when he acts in execution of the authority given b}' his master, and then the act of the servant is the act of the master ; and the plaintiff was nonsuited. JONES V. HART. Nisi Prius. 1698. [2 SalJc. 441.] A pawn-broker's servant took a pawn ; the pawner came and ten- dered the mone}' to the servant ; he said he had lost the goods. Upon this the pawner brought trover against the master, and it was held well, per Holt, C. J. The servants of A. with his cart run against another cart, wherein was a pipe of sack, and overturned the cart, and spoiled the sack ; an action lies against A. So where a carter's sen^ant run his cart over a bo}', it was held the boy should have his action against the master for the damage he sustained by this negligence. So in Lane and Cotton,^ a letter with bills in it was delivered at the post-office to a servant ; it was held, case lay against the post-master and not against the servant, unless he stole them, for then he was a wrong-doer, as where a gaoler suffers an escape wilfully; otherwise, if negligently. Per Holt, C. J.' > The contrary was ruled to what is here stated. Vide the case, 1 Salk. 17. — Rep 2 Holt, 646, s. c. : " Holt, C. J. . . . And so it is if a smith's man pricks a horse SECT, l] ward V. EVANS. 87 ANONYMOUS. Nisi Pejus. 1701. [12 Mod. 514.] Per Holt, C. J. Ever}- factor of common right is to sell for ready mone}'. But if he be a factor in a sort of dealing or trade where the usage is for factors to sell on trust, there, if he sell to a person of good credit at that time, and he afterwards becomes insolvent, the factor is discharged ; but otherwise if it be to a man notoriously discredited at the time of tlie sale. But if there be no such usage, and he, upon the general authority to sell, sells upon trust, let the vendee be ever so able, the factor is only chargeable ; for in that case, the factor having gone bej'ond his authority, there is no contract created between the vendee and the factor's principal ; and such sale is a conversion in the factor ; and if it be not in market-overt, no propertj- is thereby altered, but trover will also lie against vendee : so likewise if it be in a market-overt, and the vendee knows the factor to sell as factor. WARD V. EVANS. Queen's Bench. 1702-3. [2 SalL 442.1] "Ward sent his servant to receive a note of £50 of B., who went with him to Sir Stephen Evans's shop, who indorsed off £50 from a note B. had upon him, and gave Ward's servant a note of £50 upon one Wallis, a goldsmith, to whom the note was carried the next da}- by Ward's servant ; Wallis refused to pay, and that da}- broke ; upon this the note was sent back to Sir Stephen P^vans, who refused payment, where- upon the action was brought. Et per Cur. it was held, 1st, that this was money received by Sir Stephen Evans ; 2dly, that the act of a ser- vant shall not bind the master unless lie acts by authority of his master ; and therefore if a master sends his servant to receive money, and the servant, instead of money, takes a bill, and the master, as soon as told thereof, disagrees, he is not bound by this payment; but acqui-, escence, or any small matter, will be proof of the master's consent, tnd that will make the act of the servant the act of the master. 3dly, They held this was no payment; for a goldsmith's note is /)nly paper, and received conditionally, if paid ; and not otherwise, ♦vithout an express agreement to be taken as cash. to shoeing, the master is liable. For whoever employs another is answerable for him, 4n(l undertakes for his care to all that make use of him. The act of a servant is the tct of his master, where he acts by authority of the master." — Ed. 1 R. c. 3 Salk. 118 ; 6 Mod. 36; 12 id. 521 ; 2 Ld. Raym. 928 ; Comyns, 138. — Ed. 88 THOROLD V. SMITH. ^ [CHAP. II. 4tbly, they held that the party receiving such note should have a reasonable time to receive the money, as in this case the next day, and is not obliged, as soon as he receives it, to go straight for his money. THOROLD V. SMITH. Queen's Bench. 1706. [11 Mod. 71, 87.] The defendant being indebted to Sir Charles Thorold in a hundred pounds, Sir Charles sent his servant to receive the money. The ser- vant took the goldsmith's note upon one Johnson, and thereupon gave a receipt to Smith. Johnson broke within a week after. The question was, whether this was a good payment to Sir Charles ; or, whether the servant had pursued his authority in taking a note in lieu of money, and had a power to give a receipt to discharge the debt without receiving the money. Holt, C. J. A bill is no payment ; ^ but if a man will give a re- ceipt, he by that accepts the bill as money and payment ; and therefore upon the receipt this case turns. The principal objection from the Bar was, that the defendant had not authority to receive anything but money, and consequently could not discharge the debt upon receiving the bill. Powell, J., said. Sir Charles Thorold should have sent his man back again the same day to have dissented, else it is a presumption that his master was acquainted with, and acquiesced in, what he had done ; and this might have altered the case. To which the court agreed ; and said. Sir Stephen Evans's case dif- fered from this case, for Sir Stephen Evans became a receiver to the use of Ward. If a man give a note to another upon a banker, and no re- ceipt, it is usual to have three days as a convenient time to receive it ; and if the banker break in that time, it will be no payment. Adjournatur. Darnell, Serjeant. A receipt shall not be a good discharge, where a servant had not a special authorit}' to give a receipt.^ Suppose a servant give a receipt, and do not receive the money, shall this bind the master? So if he take any collateral security', as a bond. 1 By 3 & 4 Anne, c. 9, § 7, " If any person accept a bill of exchange for and in satisfaction of any former debt or sum of money formerly due to him, it shall be ac- counted and esteemed a full and complete payment of such debt, if such person accept- ing of any such bill for his debt do not take his due course to obtain payment of it, by endeavoring to get the same accepted and paid, and make his protest, according to the directions of the act, either for non-acceptance or non-payment." See Murdal v, Clarke, 1 Salk. 124; Kyd on Bills of Exchange, 111. — Bep. " Year-Book, 10 Hen. VII. pi. 9; 4 Hen. VI. pi. 1 ; 40 Assize, 38. — Rep. SECT. I.] THOROLD V. SMITH. 89 Jfr. Eyres. The question is, if a servant is sent by his roaster for mone}', and receive anything else in lieu of monej-, whether this is a pursuance of his authority. It did not appear in this case that Sir Cliarles Tiiorold had any notice of the receipt of the bills, nor of Jolnison's breaking ; but the servant sent the note back upon hearing of Johnson's breaking, A servant sent by his roaster to receive rooney cannot release or discharge his roaster's debt without receiving the mone}' ; for a receiver has no power to make any commutation without a special authority.^ AV> James Mountague, ccmtra. The authorities cited from the old books will not weigh much in this case ; for the way of trade and commerce is of a quite different nature now. Holt, C. J. A bill of exchange or goldsmith's note is not payment, unless the part}' omits receiving of it in a reasonable time, as three days, when he might have received it ; but if he give a receipt and accept the note as payment, this shall bind him. In this case Sii Charles himself gave no receipt, but the servant. Where a man hag authority to receive money, he cannot receive anything else. It is common practice, if a man receive a goldsmith's note, and give a re- ceipt, it is purchasing the bill. In this case it must be understood, according to the course of the world and trade, that this servant had a general authority' to do what his master would have done ; this case differs much from the case of a servant or attorney to one particular purpose, but this is in nature of a factor, etc. Powell, J. No modern practice will alter the old law. The part}' himself ma}' give a receipt, but a general receiver cannot receive any- thing else. His own acquittance would stop hiro, but his servant's receipt will not. In this case the servant was sent to receive money : this servant, he supposed, had many times received bills for his mas- ter, and this is an authority to this purpose ; but this indeed was proper matter of evidence, being the constant practice of the world ; and had this not been. Sir Charles would have asked his servant what he had done ; and when he had told liim he had received such a note, it is a strong presumption his master approved of it, or else, it is to be pre- sumed, he would have sent it back again. Holt, C. J., thought this was more matter of evidence than law ; and any jury at Guildhall would find payment by a bill to be a good payment, it being the common practice of the city. And he proposed a new trial, whether the servant had power to receive a bill, and give a receipt ; which was agreed to. Holt, C. J. In this case, the receipt of a servant that has power is the receipt of the master. 1 Doctor and Student, 138 b. — Rep. 90 MCKSON V. BROHAN. [CHAP. IL HERN V. NICHOLS. Nisi Prius. 1708. [1 Salk. 289.] In an action on the case for a deceit, the plaintiff set forth that he bought several parcels of silk for silk, whereas it was another kind of silk ; and that the defendant, well knowing this deceit, sold it him for silk. On trial, upon not guilty, it appeared that there was no actual deceit in the defendant who was the merchant, but that it was in his factor beyond sea ; and the doubt was, if this deceit could charge the merchant? And Holt, C. J., was of opinion, that the mer- chant was answerable for the deceit of his factor, though not crimi- naliter, yet civiliter ; for seeing somebody must be a loser bj' this deceit, it is more reason that he that employs and puts a trust and confidence in the deceiver should be a loser, than a stranger. And upon this opinion the plaintiff had a verdict. NICKSON V. BROHAN. Queen's Bench. 1712. [10 Mod. 109.] A MASTER sent his servant, who was used to transact affairs of that nature for him, on Saturday morning, with a note drawn upon Sir Stephen Evans, with orders to get from Sir Stephen either bank bills or money, and turn them into exchequer notes ; but the servant having other business of his master's upon his hands, to save himself the time and trouble of going to Sir Stephen, went to B. and prevailed with him to give him a bank bill for the note upon Sir Stephen ; and then, in pursuance of his master's orders, invested it in exchequer notes, which he brought to his master, not letting him know but that he had gone to Sir Stephen. Sir Stephen Evans failed upon the Monday following. The question was, upon whom this loss should light, B. or the master. Parker, Chief Justice, who tried the cause, was first of opinion that it should fall upon B. , because the servant acted directly contrary to his master's orders, and B., by furnishing the servant with a bank bill, did the master no service at all ; for if he had not done it, the servant must, in obedience to his master's orders, have gone and received him- self the money from Sir Stephen ; and cited the case of Ward v. Evans, where it was resolved that if a servant, sent to receive money, takes SECT. I.] NICKSON V. BROHAN. 91 a bill in lieu of it, the master is not bound b}' the act of the servant, unless the bill is answered. J5ut one of the jury informing him that he took the practice to be otherwise (for that whether a servant, used to act upon the credit of his master, went against the orders of the master, was a fact that could not be known to a third person), he quitted his opinion ; but directed the counsel to move the Court of King's Bench, which was accordingly done. The substance of what was said upon the motion in favor of the master was, that the servant going contrary to his orders, and there being no subsequent consent of the muster, who knew nothing of the matter, the act of the servant should not bind the master, according to the cases of Ward v. Evans, Hanky v. Watts, and Thorold v. Smith. A master commands his servant to sell his horse, the servant sells him as a good one, no action against the master. But the court were all of opinion that the verdict was well given, and that the master was chargeable, and he onl}- ; for a servant, by transacting affairs for his master, does therebj* derive a general au- thority and credit from him ; and if this general authority' should be liable to be determined for a time b}- an}- particular instructions or orders, to which none but the master and servant are priv}-, there would be an end of all dealing but with the master. The master has put himself in the power of the servant b\- trusting him with the bill. The case of Monk v. Cla3'ton^ was where the act of a servant, though out of place, bound his master, b\- reason of the former credit given him by his master's service, the other not knowing that he was dis- charged. And as for the cases put, there was this main difference between them, that nothing came to the master's use ; as here the notes did. In some of those cases there was a prior debt, but none here. It was agreed by the court that the property of the note was not trans- ferred and vested in B., but was only in nature of a clepositum or secu- rity to him, for there is no indorsement; nor could he have sued upon the bill ; and though practice cannot alter the law, yet it ma}' explain an agreement. They were likewise of opinion that the master could not recover it of the servant, the loss being occasioned b\- a mere acci- dent, and not either folh* or negligence. If a master frequenth' send a servant to market without read}' money, so that the servant is trusted upon the master's account, — if, in such a case, the servant embezzles the mone}' when he is sent with it, and buy upon trust, the master is chargeable ; but not if he always is sent with ready money. 1 M0II07, de Jure Maritimo (ed. 1676) 270. — Rep. 92 ANONYMOUS. [CHAP. IL ARMORY V. DELAMIRTE. Nisi Prids, Pratt, C. J. 1721-2. [1 Str. 505.] The plaintiff, being a chimne3'-sweeper's boy, found a jewel and car- ried it to the defendant's shop (who was a goldsmith) to know what it was, and delivered it into the hands of the apprentice, who under pre- tence of weighing it, took out the stones, and calling to the master to let him know, it came to three halfpence ; the master offered the boy the money, who refused to take it, and insisted to have the thing again ; whereupon the apprentice delivered him back the socket without the stones. And now in trover against the master these points were ruled : — 1. That the finder of a jewel, though he does not by such finding acquire an absolute property' or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequentl}' may maintain trover. 2. That the action well lay against the master, who gives a credit to his apprentice, and is answerable for his neglect. 3. As to the value of the jewel, several of the trade were examined to prove what a jewel of the finest water that would fit the socket would be worth ; and the Chief Justice directed the jury, that unless the defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages, which they accordingly did.^ ANONYMOUS. Nisi Prius, Pratt, C. J. 1722. [1 Str. 527.] The Chief Justice allowed the wife's declaration, that she agreed to paj' 4s. per week for nursing a child, was good evidence to charge the husband ; this being a matter usually transacted by the women. ' Ace: Mead v. Hamond, 1 Str. 505 (1721-2). And see Gary v. Webster, I Star- 480(1721).— Ed. SECT. I.] BLACKSTONE'S COMMENTARIES. 93 GRAMMAR v. NIXON. Nisi Prius, Eyre, C. J. 1725. [1 Str. 653.] A goldsmith's apprentice sold an ingot of gold and silver upon a special warranty that it was of the same value per ounce with an essay then shown. Upon the evidence it appeared he had forged the essay, and that the ingot was made out of a lodger's plate, which he had stolen. And the Chief Justice held the master was answerable in this case. Strange, jjro def\ Blackstone's Commentaries, I., 425-427, 429-432 (1765) : — 1. The first sort of servants, therefore, acknowledged by the laws of England, are menial servants ; so called from being intra moenia, or domestics. The contract between them and their masters arises upon the hiring. . . . 2. Another species of servants are called apprentices (from ap- prendre, to learn), and are usually' bound for a term of 3ears, b}' deed indented or indentures, to serve their masters, and be maintained and instructed b}- them. . . . 3. A third species of servants are labourers, who are only hired b}' the day or the week, and do not live i)itra mocnia, as part of the family. . . . 4. There is yet a fourth species of servants, if thej' ma}- be so called, being rather in a superior, a ministerial, capacity ; such as steioards, factors, Siud bailiffs: whom, however, the law considers as servants pro tempore, with regard to such of their acts as affect their master's or employer's property'. . . . As for those things which a servant ma}' do on behalf of his master, the}- seem all to proceed upon this principle, that the master is answer- able for the act of his servant, if done by his command, either expressly given or implied : nam qui facit per alium, facit per se. Therefore, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it : though the servant is not thereby excused, for he is only to obey his master in matters that are honest and lawful. If an innkeeper's servants rob his guests, the master is bound to restitution : for as there is a confidence reposed in him, that he will take care to provide honest servants, his negligence is a kind of implied consent to the robbery ; nam qui non prohibet, cum prohibere possit, jtibet. So likewise if the drawer at a tavern sells a man bad wine, whereby his health is injured, he may bring action against the master : for although the master did not expressly order the 94 blackstone's commentaries. [chap. II. servan^j to sell it to that person in particular, yet his permitting him to draw and sell it at all is impliedlj' a general command. In the same manner, whatever a servant is permitted to do in the usual course of his business, is equivalent to a general command. If I pay money to a banker's servant, the banker is answerable for it : if I pay it to a clergyman's or a physician's servant, whose usual busi- ness it is not to receive money for his master, and he embezzles it, I must pay it over again. If a steward lets a lease of a farm, without the owner's knowledge, the owner must stand to the bargain ; for this is the steward's business. A wife, a friend, a relation, that use to transact business for a man, are quoad hoc his servants ; and the princi- pal must answer for their conduct : for the law implies that they act under a general command ; and without such a doctrine as this no mutual intercourse between man and man could subsist with any toler- able convenience. If I usual!}' deal with a tradesman by myself, or constantl}' pay him read}' money, I am not answerable for what my servant takes up upon trust ; for here is no implied order to the trades- man to trust mj' servant ; but if I usually send him upon trust, or sometimes on trust and sometimes with ready mone^', I am answerable for all he takes up ; for the tradesman cannot possibly' distinguish when he comes b}' my order, and when upon his own authority. If a servant, lastly, by his negligence does any damage to a stranger, the master shall answer for his neglect : if a smith's servant lames a horse while he is shoeing him, an action lies against the master, and not against the servant.-^ But in these cases the damage must be done while he is actually employed in the master's service ; otherwise the servant shall answer for his own misbehaviour. Upon this principle, by the common law, if a servant kept his master's fire negligently, so that his neighbour's house was burned down thereby, an action lay against the master ; because this negligence happened in his service ; otherwise, if the servant, going along the street with a torch, by negligence sets fire to a house; for there he is not in his master's Immediate service ; and must himself answer the damage personally. But now the common law is, in the former case, altered by statute 6 Ann. c. 3, which ordains that no action shall be maintained against any, in whose house or chamber any fire shall accidentall}' begin ; for their own loss is sufficient punishment for their own or their servant's carelessness. . . .^ 1 " This is, of course, not law to day, and probably was not law when written. Black- stone simply repeated the doctrine of the Year Books. The servant had not expressly assumed to shoe carefully. . . . This primitive notion of legal liability has, of course, entirely disappeared from the law. An assumpsit is no longer an essential allegation in these actions of tort, and there is, therefore, little or no semblance of analogy between these actions and actions of contract." Professor J. B. Ames, " The History of Assumpsit," 2 Harv. L. Rev. 1, 4. — Ed. '■^ " Blackstone . . . misunderstood ' accidentally ' to include ' negligently ' in these statutes. This was corrected by Philliter v. Phippard, 11 Q, B. 347 (1843)." Pro- fessor J. H. Wigmore, " Responsibility for Tortious Acts," 7 Harv. L. Rev. 441, 449, n. (6). — Ed. SECT. II.] BRUCKER V. FROMONT. 95 We may observe, that in all the cases here put, the master ma^ be frequently a loser by the trust reposed in his servant, but never can be a gainer; he may frequently be answerable for his servant's misbe- haviour, but never can shelter himself from punishment by laying the blame on his agent. The reason of this is still uniform and the same ; that the wrong done by the servant is looked upon in law as the wron<^ of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong. ^ SECTION n. Torts.^ BRUCKER V. FROMONT. King's Bench. 1796. [6 T. R. 659.] The plaintiff declared against the defendant for that he on such a day was driving a cart and horse along the king's highway, and that he so carelessly-, negligently, and improvidently guided, drove, and di- rected the same that the cart for want of due care and caution of the defendant in that behalf was violently forced and driven and run against the plaintiff's horse then passing and drawing the plaintiff's chariot along the said highway, whereby the shaft of the defendant's cart was forced into the body of the plaintiff's horse and killed it. The fact was that the defendant's servant was driving the cart at the time when the accident happened, and the defendant himself was not present. Whereupon it was objected b}' the defendant's counsel at the trial that the action was misconceived, as it ought to have stated, not that the defendant himself had done the act, but that it had been done bj' the act of his servant ; and jMr. Baron Thomson before whom it was tried at the last assizes for Berkshire, nonsuited the plaintiff. A 1 For a full statement and discussion of the authorities that show the history of the principal's responsibility for his agent's torts, see Professor J. H. Wigmore's articles on Kesponsihility for Tortious Acts, in 7 Harv. L. Eev. 315, .383, 441. For historical matter as to both contracts and torts, see 2 Pollock and iMaitland's History of English Law, 225-227, 526-532, and Mr. Justice Holmes' articles on Agency in 4 Harv. L. Rev. 345, and 5 id. 1. — Ed. 2 In addition to cases on the torts of persons who are confessedly servants, this section presents cases on the distinction between servants and independent contractora Cases on fellow-servants are found in Chapter VI. — Ed. 96 BRUCKER V. FROMONT. [CHAP. II. rule having been obtained to show cause why the nonsuit should not be set aside, and a new trial granted, Plumer and Milles showed cause ; contending that the master was not liable for the act of his servant under this general form of declar- ing, which was not conformable to the generality of precedents, nor warranted by any express decision. Mr. Justice Blackstone, 1 Com. 429, &c., states the liability of masters for the acts of their servants on three distinct grounds : first, where the servant acts by the master's express command, in which case the act of the servant is considered as the act of the master, on the principle of quifacitper alium facit per se ; and the person injured may declare against the latter as for his own act. Secondl}^, where the servant is acting in the usual course of his master's business at the time of the act complained of; in which case the law implies that it was done by the master's consent ; and he is liable in the same manner as in the former instance. Thirdly, where by his own negligence or wilfulness the servant does an injury to an- other while in his master's employment ; here, although the master is still liable, yet that liability arises, not from any implied command or consent of the master to the wrongful act of his servant, but from the legal relation subsisting between them by virtue of which the former is answerable for the default of the latter. In such cases, therefore, the act itself not being imputable to the master, but only the consequences arising from the relation in which he stands, the party injured ought by his declaration to allege the fact trulj', and refer the act to the servant who did it, deducing the master's liability from such relation ; and the more so in order that the court may see upon the face of the record that the act imputed is such for which by law the master is answerable. For it is not every wrongful act of a servant for which the master is compellable to make satisfaction ; but it must appear to be such as happened within the scope of his employ. But if this general mode of declaring be deemed sufficient, the master will be precluded from moving in arrest of judgment, or taking the opinion of a court of error. The only cases referred to in support of the action were, first, Michael v. Alestree and another, 2 Lev. 172, where an. action Was brought against the master and servant for an injury done to the plaintiff by the servant in exercising his master's horses, which were unruly, in Lincoln's-Inn-Fields. The act there is indeed laid to have been done by both, though the master was absent ; 3'et the ground of the judgment was, that it should be intended that the master sent the servant there to train the horses. The injury is stated to have arisen from the ferocity and ungovernable nature of the horses, which were driven there to be rendered tractable. And if the master directed the servant to train the horses in an improper place, and in so doing the injury happened, the declaration was well adapted to the truth of the case on the principles before laid down. The other case is that of Turberville v. Stampe, 1 Ld. Raym. 264 ; 3 Ld. Raym. 375 ; Skin. 681 Carth. 425 ; Salk. 13 S. C, where the plaintiff declared upon the cus- SECT. II.] BRUCKER V. FROMONT. 97 torn of the realm against the defendant for so negligently keeping his fire that it consumed tlie plaintiff's heath ; it only appears argueyalo that the fire was made by the defendant's servant. But that case is distinguishable from the present in many respects. The question arose upon a motion in arrest of judgment, and not upon a new trial ; and therefore it was not in dispute how far the evidence tallied with the declaration ; and the declaration was good on the face of it. Next, it was an action founded on the custom of the realm ; and therefore by law the act was specially imputable to the defendant. Again, it is stated to have been a fire lighted in the course of husbandry, which must necessarily have been either by the express or implied command of the ovv^ner ; in which case the objection could not have arisen even at Nisi Prius. And the court are made to say that if the servant kin- dled the fire by way of husbandry, and proper for his employment, though he had no express command, his master shall be liable ; for it shall be intended that the servant had authority from his master, it be- ing for his master's benefit. Both these cases therefore fall within the former rules, and do not apply to the present, where the liability of the master arises from the culi)able conduct of the servant in an instance which cannot be imputed either to an express or implied command. Williams, Serjt., and liussell, after mentioning the case of Turber- ville V. Stampe to show that this mode of declaring was considered in Lord Holt's time as the proper form, where an action is brought against the master for the negligence of the servant, upon the principle that it is sufficient to declare upon the legal effect of any act, were stopped by the court. Lord Kenyon, C. J. On reason and on principle I should have been inclined to support the decision at Nisi Prius, because it is most con- venient to state the real cause of action on the record. But I cannot distinguish this case from that cited from Lord Raymond's Report ; nor am I equal to the task of overturning a precedent that was con- sidered b}' Lord Holt and the court as a good one. AsHHURST, J. I think it may be stated in the declaration either way, though it is certainly most convenient to state the fact as it really happened. Grose, J. The use of a declaration is to inform the defendant of everything that the plaintiff intends to prove, and that the defendant is called upon to answer ; and on looking at this declaration the de- fendant could not know that the action was brought against him for the act of his servant ; but I cannot get rid of the authority of the case that has been mentioned. Lawrence, J., of the same opinion. On the next day Plumer mentioned this case again ; observing that the case of Turberville v. Stampe, on the authority of which alone he understood the court had granted a new trial, did not apply to this case, because there the question was not, whether the facts proved sup- ported the declaration, but whether the declaration itself was good, it 7 98 BUSH V. STEINMAN. fCIIAP. IL being an action on the custom of the realm against the defendant for negligentl}' keeping his fire, and it was stated in the declaration that the fire was on a close of heath and not in the defendant's house. But Lord Kenyon, C. J., said, the ground on which that case influenced m}' opinion was, that that precedent was at that time considered as a good one. Hule absolute.^ BUSH V. STEINMAN. IDEM ET ux. V. EUNDEM. Common Pleas. 1799. [1 B.Sr P. 404.] These were two actions on the case against the defendant for caus- ing a quantity of lime to be placed on the high-road, b}' means of which the plaintiff and his wife were overturned and much hurt, and the chaise in which they then were was considerably damaged. The two actions came on together to be tried before Eyre, Ch. J., at the Guildhall Sittings after last Hilary term, when the following circum- stances appeared in evidence. The defendant having purchased a house by the road-side (but which he had never occupied), contracted with a surveyor to put it in repair for a stipulated sum ; a carpenter having a contract under the surveyor to do the whole business em- ployed a bricklayer under him, and he again contracted for a quantity of lime with a lime-burner, by whose servant the lime in question was laid in the road. The Lord Chief Justice was of opinion that the defendant was not answerable for the injury sustained by the plaintiff under the above circumstances ; but in order to save expense, a verdict was taken for the plaintiff for £12 12s., with liberty to the defendant to move to have a nonsuit entered. Accordingl}' a rule nisi for that purpose having been obtained on a former day, Cockell and Shepherd, Serjts., now showed cause. Le Blanc and 3Iarshall, Serjts., contra. Eyre, C. J. At the trial I entertained great doubts with respect to the defendant's liability in this action. He appeared to be so far removed from the immediate author of the nuisance, and so far re- moved even from the person connected with the immediate author in the relation of master, that to allow him to be charged for the injury sustained b^- the plaintiff seemed to render a circuit}' of action neces- sary. Upon the plaintiff^s recover}', the defendant would be entitled to an action against the surve3"or, the surveyor and each of the sub- contracting parties in succession to actions against the persons with whom they immediately contracted, and last of all the lime-burner 1 Tompare Anonymous, Y. B. 32 Ed. I. (Rolls ed.) 3.31, 333 (1304). — Ed. SECT. II.] BUSH V. STEINMAN. 99 would be entitled to the common action against his own servant. I hesitated therefore in carrying the responsibility beyond the immediate master of the person who committed the injury, and I retained my doul)ts upon the subject, till I had heard the argument on the part of the plaintiff, and had an opportunity of conferring with my brothers. They, including Mr. Justice Buller, are satisfied that the action will lie, and upon reflection, I am disposed to concur with them ; though I am read}' to confess that I find great difficult}- in stating with accuracy the grounds on which it is to be supported. The relation between master and servant as commonly exemplified in actions brought against the master is not sufficient ; and the general proposition that a person shall be answerable for anj* injury which arises in carrying into execu- tion that which he has employed another to do, seems to be too large and loose. The principle of Stone v. Cartwright, 6 T. R. 411, with the decision of which I am well satisfied, is certainh' applicable to this case; but that of Littledale v. Lord Lonsdale, 2 H. Bl. 267, 299, conies much nearer. Lord Lonsdale's collier}' was worked in such a manner b}' his agents and servants (or possibly by his contractors, for that would have made no difference) that an injury was done to the plaintiff's house, and his Lordship was held responsible. Wh}'? Be- cause the injury was done in the course of his working the collier}' ; whether he worked it by agents, by servants, or by contractors, still it was his work ; and though another person might have contracted with him for the management of the whole concern without his interfer- ence, yet the work being carried on for his benefit, and on his pro- perty, all the persons employed must have been considered as his agents and servants notwithstanding any such arrangement ; and he must have been responsible to all the world, on the principle of sic utere tuo lit alienum non Icedas. Lord Lonsdale having empowered the contractor to appoint such persons under him as he should think fit, the persons appointed would in contemplation of law have been the agents and servants of Lord Lonsdale. Nor can I think tliat it would have made an}' difference, if the injury complained of had arisen from his Lordship's coals having been placed by the workmen, on the prem- ises of Mr. Littledale, since it would have been impossible to distin- guish such an act from the general course of business in which they were engaged, the whole of which business was carried on either by the express direction of Lord Lonsdale, or under a presumed authority from him. The principle of this case therefore seems to afford a ground which may be satisfactory for the present action, though I do not say that it is exactly in point. According to the doctrine cited from Blackstone's Commentaries if one of a family " layeth oi " casteth " anything out of the house which constitutes a nuisance the owner is chargeable. Suppose then that the owner of a house, with a view to rebuild or repair, employ his own servants to erect a hoard in the street (which being for the benefit of the public they may lawfully do) and they carry it out so far as to encroach unreasonably on the highway, it 100 BUSH V. STEINMAN. [CHAP. II. is clear that the owner would be guilty of a nuisance ; and I apprehend there can be but little doubt that he would be equally guilty if he had contracted with a person to do it for a certain sum of money, instead of employing his own servants for the purpose ; for in contemplation of law the erection of the hord would equally be his act. If that be estab- lished we come one step nearer to this case. Here the defendant by a contractor, and by agents under him, was repairing his house ; the repairs were done at his expense, and the repairing was his act. If then the injury complained of by the plaintiff was committed in the course of making those repairs, I am unable to distinguish the case from that of erecting the hord, or from Littledale v. Lord Lonsdale, unless indeed a distinction could be maintained (which however I do not think possible) on the ground of the lime not having been deUvered on the defendant's premises, but only at a place close to them, with a view to being carried on to the premises, and consumed there. My brother BuUer recollects a case which he would have stated more particularly, had he been able to attend. It was this ; a master having employed his servant to do some act, the servant out of idleness employed another to do it, and that person in carrying into execution the orders which had been given to the servant committed an injury to the plaintiff, for which the master was held liable. The responsibility was thrown on the principal from whom the authority originall}' moved. This determination is certainly highly convenient, and beneficial to the public. Where a civil injury of the kind now complained of has been sustained the remed}' ought to be obvious, and the person injured should have only to discover the owner of the house which was the occasion of the mischief; not be compelled to enter into the concerns between that owner and other persons, the inconvenience of which would be more heavily felt than any which can arise from a circuity of action. Upon the whole case, therefore, though I still feel difficulty in stating the precise principle on which the action is founded, I am satisfied with the opinion of my brothers. Heath, J, I found my opinion on this single point, viz. : that all the subcontracting parties were in the employ of the defendant. It has been strongly argued that the defendant is not liable, because his liability can be founded in nothing but the mere relation of master and servant ; but no authority has been cited to support that proposition. Whatever may be the doctrine of the civil law, it is perfectlv clear that our law carries such liabilitj- much further. Thus a factor is not a servant ; but being employed and trusted by the merchant, the latter, according to the case in Salkeld, is responsible for his acts. There are besides this other cases. As where a person hires a coach upon a job, and a job-coachman is sent with it, the person who hires the coach is liable for any mischief done by the coachman while in his employ, though he is not his servant. We all remember an action for defamar tion brought against Tattersall who was the proprietor of a newspaper, with sixteen others ; the libel was inserted by the persons whom the SECT. II.] BUSH V. STEINMAN. 101 proprietors had employed by contract to collect news, and compose the paper, yet the defendant was held liable. Now this is a strong case to show that it makes no difference wliether the persons employed by the defendant were employed on a quantum meruit, or were to be paid a stipulated sura. In Rosewell v. Prior, Salk. 460, an action for the con- tinuance of a nuisance was held to lie against the defendant though he had underlet the building which was the subject of it, and though the plaintiff had recovered against him in a former action for the erection of the nuisance ; for the court said " he affirmed the continuance by his demise, and received rent as a consideration for it." That case la analogous to the present ; the ground of the decision having been, that the defendant was benefited by the nuisance complained of. It is not possible to conceive a case in which more mischief might arise than in the present, if the various subcontracts should be held sufficient to defeat the plaintiff of his action. Probably' he would not be able to trace them all, since none of the parties could give him anv information, and consequently he might be turned round every time he came to trial. RooKE, J. I am of the same opinion. He who has work going on for his benefit, and on his own premises, must be civilh" answerable for the acts of those whom he emplo3S. According to the principle of the case in 2 Lev. it shall be intended b}' tlie court, that he has a con- trol over all those persons who work on his premises, and he shall not be allowed to discharge himself from that intendment of law by an}' act or contract of his own. He ought to reserve such control, and if he deprive himself of it, the law will not permit him to take ad- vantage of that circumstance in order to screen himself from an action. The case which has been supposed of the lime having been deposited at a distance from the defendant's house, and the accident having hap- pened there, does not apply ; for here a person acting under the general employment of the defendant brought a quantity of lime to the premises and deposited it without any objection being made by any person there, whereas it was the dut}' of the defendant to have provided a person to superintend those employed in his work. The person from whom the whole authorit}' is originallj' derived, is the person who ought to be answerable, and great inconvenience would follow if it were otherwise. There is such a variety of sub-contracts in this case as rarely occurs, but this serves only to illustrate more strongly the mischief which would ensue should we depart from the doctrine in Stone v. Cartwright. In that case, and in Littledale v. Lord Lonsdale, the safest rule was adopted. The plaintiff may bring his action either against the person from whom the authority flows, and for whose benefit the work is carried on, or against the person by whom the injury was actually committed. If the employer suffer by the acts of those with whom he has contracted he must seek his remedy against them. Utile discharged. 102 McMANUS V. CRICKETT. [CHAP. L McMANUS V. CRICKETT. King's Bench. 1800. [1 East, 106.1 This case was very much discussed at the bar, upon a motion to set aside a verdict for the plaintiff, and enter a nonsuit, by Gibbs and Jf oat? against the rule, and Garrow and Giles in support of it. The court took time to consider of their judgment ; and afterwards entered so fully into the cases cited and the arguments urged at the bar that it is unnecessary to detail them in the usual form. Lord Kenyon, C. J., now delivered the unanimous opinion of the court. This is an action of trespass, in which the declaration charges that the defendant with force and arms drove a certain chariot against a chaise in which the plaintiff was riding in the king's highway, by which the plaintiff was thrown from his cjhaise and greatly hurt. At the trial it appeared in evidence that one Brown, a servant of the defendant, wilfully drove the chariot against the plaintiff's chaise, but that the defendant was not himself present,^ nor did he in any manner direct or assent to the act of the servant; and the question is, if for this wilful and designed act of the servant an action of trespass lies against the defendant, his master. As this is a question of very general extent, and as cases were cited at the bar, where verdicts had been obtained against masters for the misconduct of their servants under similar cir- cumstances, we were desirous of looking into the authorities on the sub- ject, before we gave our opinion ; and after an examination of all that we could find as to this point, we think that this action cannot be maintained. It is a question of \&\'y general concern, and has been often canvassed ; but I hope at last it will be at rest. It is said in Bro. Abr. tit. Trespass, pi. 435, "• If my servant, contrary to my will, chase my beasts into the soil of another, I shall not be punished." And in 2 Roll. Abr. 553, " If my servant, without m}' notice, put my beasts into another's land, my servant is the trespasser, and not I ; because b}' the voluntar}' put- ting of the beasts there without m}- assent, he gains a special property for the time, and so to this purpose they are his beasts." I have looked into the correspondent part in Vin. Abr. and as he has not pro- duced any case contrary to this, I am satisfied with the authority of it. And in Noy's Maxims, ch. 44, "If I command my servant to distrain, and he ride on the distress, he shall be punished, not I." And it is laid down by Holt, C. J., in Middleton v. Fowler, Salk. 282, as a gen- eral position, " that no master is chargeable with the acts of his servant but when he acts in the execution of the authority given him." Now ^ No person was in the carriage : the act was done by the servant either in going for or after he had set down his master. — Rep. SECT. II.] McMANUS V. CRICKETT. 103 when a servant quits sight of the object for which he is employed, and without having in view his master's orders pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and according to the doctrine of Lord Holt, his master will not be anwerable for such act. Huch upon the evidence was the present case ; and the technical reason in 2 Roll. Abr. with respect to the sheep applies here ; and it may be said that the servant, by wilfully driving the chariot against the plaintiff's chaise, without his master's assent, gained a special property for the time, and so to that purpose the chariot was the servant's. This doctrine does not at all militate with the cases in which a master has been holden liable for tlie mis- chief arising from the negligence or unskilfulness of his servant, who had no purpose but the execution of his master's orders ; but the form of those actions proves that this action of trespass cannot be maintained : for if it can be supported, it must be upon the ground that in trespass all are principals ; but the form of those actions shows that where the servant is in point of law a trespasser, the master is not chargeable as such ; though liable to make a compen- sation for the damage consequential from his employing of an unskilful or negligent servant. The act of the master is the employment of the servant ; but from that no immediate prejudice arises to those who may suffer from some subsequent act of the servant. If this were otherwise, the plaintiffs in the cases mentioned in 1 Lord Raym. 739 (one where the servants of a carman through negligence ran over a bo}' in the streets and maimed him ; and the other, where the ser- vants of A. with his cart ran against the cart of B. and overturned it, by which a pipe of wine was spilt) must have been nonsuited from their mistaking the proper form of action, in bringing an action upon the case, instead of an action of trespass ; for there is no doubt of the servants, in those cases, being liable as trespassers, even though the}' intended no mischief; for which, if it were necessary, Weaver v. Ward, in Hobart 134, and Dickinson w. Watson, in Sir Thomas Jones, 205, are authorities. But it must not be inferred from this that in all cases where an action is brought against the servant for improperh' con- ducting his master's carriage, by which mischief happens to another, the action must be trespass. Michael v. Allestree, in 2 Levinz, 172, where an action on the case was brought against a man and his servant for breaking a pair of horses in Lincoln's Inn Fields, where, being unmanageable, they ran awa}' with the carriage and hurt the plaintiffs wife, is an instance to show that trespass on the case ma}* be the proper form of action. And upon a distinction between those cases where the mischief immediately proceeds from something in which the defendant is himself active, and where it may arise from the neglect or other misconduct of the party, but not immediately, and which per- haps may amount only to a nonfeasance, we held in Ogle v. Barnes, 8 Term Rep. 188, that the plaintiff was entitled to recover. The case of Savignac and Roome, 6 Term Rep. 125, which was much pressed as 104 WEYLAND V. ELKINS. [CHAP. IL supporting this action, came before the court on a motion in arrest of judgment ; and the only question decided by the court was, that the plaintiff could not have judgment, as it appeared that he had brought an action on the case for that which in law was a trespass ; for the declaration there stated that the defendant by his servant wilfully drove his coach against the plaintiff's chaise. Day v. Edwards, 5 Term Rep. 648, was also mentioned ; which was an action on the case, in which the declaration charged the defendant personally with furiously and negligentl}' driving his cart ; that by and through the furious, negli- gent, and improper conduct of the defendant the said cart was driven and struck against the plaintiff's carriage ; and on demurrer, the court were of opinion that the fact complained of was a trespass. And in the last case that was mentioned, of Brucker v. Fromont, 6 Term Rep. 659, the only point agitated was, whether evidence of the defendant's servant having negligently managed a cart supported the declaration, which imputed that negligence to the defendant ; and the court with reluctance held that it did, on the authority of a precedent in Lord Raymond's Reports, 264, of Turberville and Stamp. In none of these cases was the point now in question decided ; and tliose determi- nations do not contradict the opinion we now entertain, which is, that the plaintiff cannot recover, and that a nonsuit must be entered. Per Curiam, Hule absolute for entering a nonsuit. WEYLAND V. ELKINS. Nisi Prius. 1816. [ Holt N. P. 227.1] This was an action against the defendant, the proprietor of a wagon, for the negligence and misconduct of his servant, the driver ; who had driven the wagon against a cart which stood in the public street, in Kensington, and had forced the cart against the plaintiff^s shop window, which was thereby broken. The wagon belonged to the defendant ; but the horses were the property of another partner, of the name of Dyson. The business of a public carrier was divided between them : the defendant provided the wagon, and Dyson found the horses and drivers, from London to Earnham ; but from Farnham to Gosport, which was the conclusion of the stage, the defendant provided horses and drivers. He had, however, no actual control over the wagoner at the time of the accident ; on the contrar}-, Dyson hired him, and paid him his wages. Best^ Serjeant, for the defendant. Elkins is not responsible : it is his wagon, but it is neither drawn hy his horses nor driven by his » s. c. 1 Starkie, 272. — Ed SECT. II.] LAUGHER V. POINTER. 105 servant. The principle of the law is, to hold the master responsible for the injury done by his servant in the course of his employ ; the relation of master and servant must therefore subsist, or the law can raise no responsibility. It would be unjust to make one man liable for the act of another, whom he has not placed in his employment, and over whom he has no control. If I lend a friend my carriage, and he hires a coachman to drive it, am I responsible, as the owner of the carriage, for an injury done by the driver? The action is a hard one at best, and ought not to be extended. He cited Barton v. Hanson, 2 Taunt. 49. GiBBS, C. J. The action is maintainable on this principle : the wagon belongs to Elkins ; he has the profit of the carriage. On what terms he engages with other persons to horse the wagon, we cannot tell. It is sufficient that he is found to be a partner in a common con- cern, and jointly interested with Dyson in the profits. It is of no importance how P^lkins and Dyson apportion the carrying business between them. The servant is engaged to drive the wagon for Elkins, as well as for his immediate employer Dyson. Though, by the subor- dinate contract between the partners he is the servant of one, yet in the contemplation of the law, and for all purposes of legal responsi- bility, he is in the employ of both. The case cited has no application. There may be an inferior contract, regulating the rights of the parties, and binding them to each other, which will not extinguish or alter the general obligation which the}' all owe to the public. Yerdict for the plaintiff . Pell, Serjeant, and Es2nnasse, for the plaintiflf. Best, Serjeant, for the defendant. LAUGHER V. POINTER. King's Bench. 1826. [5 B. cj- C. 547.1 ] Case. The first count of the declaration alleged that the plaintiff was possessed of a horse, and defendant was possessed of a carriage and two horses harnessed to and drawing the same, and which car- riage and horses were under the care, government, and direction of a person, being the servant of the defendant in that behalf, who was driving the same, yet that the defendant, by his said servant, so negli- gently and improperly' drove and directed his said carriage and horses that by the negligence and improper conduct of the defendant, by his said servant, the carriage ran and struck against the plaintiff's horse, &c. The second count differed from the first, onh', by omitting to 1 8. c. 8D. & R. 556. — Ed. 106 LAUGHER V. POINTER. [CHAP. H. state that the defendant was possessed of the horses. The third and last count alleged that the defendant was possessed of a carriage drawn 1)3' two horses under the care, government, and direction of the defend- ant, yet that the defendant so negligently and iuiproperl}' drove, governed, and directed the carriage and horses that, b\' the negligence and improper conduct of the defendant, tiie carriage ran and struck against the plaintiff's horse, &c. At the trial before Abbott, C. J., at the London sittings after Michaelmas terra, 1823, it appeared in evi- dence that tlie defendant, a gentleman usually residing in the country, being in town for a few days with his own carriage, sent in the usual wa}' to a stable-keeper for a pair of horses for a day. The stable- keeper accordingly sent the pair of horses and a- person to drive the same. The defendant did not select the driver, nor had any previous knowledge of him. The stable-keeper sent such person as he chose for this purpose. The driver had no wages from his master, but depended upon receiving a gratuity from the persons whose carriages he drove ; tlie defendant gave him 5s. as a gratuit}- for his day's work, but the driver had no power to demand anything. The Lord Chief Justice thought that the evidence did not support the declaration, and directed a nonsuit. A rule nisi for a new trial was afterwards granted, and upon the argument, there being a difference of opinion on the bench, the case was directed to be argued before the twelve judges, all of whom (except the Lord Chief Baron) met for that purpose in Serjeant's Inn Hall, on the 2d of Februarj' 1825, when Tindal showed case against the rule. Abraham^ contra. Tindal., in replj'. Cur. adv. vidt. And now the Judges not being agreed in opinion proceeded to give judgment seriatim. LiTTLEDALE, J, ^ In the course of driving the carriage, the coach- man by his negligent conduct occasioned the injury ; and the question for the consideration of the court is, whether the defendant be liable. According to the rules of law, ever}' man is answerable for injuries occasioned b}' his own personal negligence ; and he is also answerable for acts done by the negligence of tliose whom the law denominates his servants, because such servants represent the master himself, and their acts stand upon the same footing as his own. And in the present case the question is, whether the coachman, by whose neglitj:ence the injury was occasioned, is to be considered a servant of the defendant. For the acts of a man's own domestic servants there is no doubt but the law makes him responsible, and if this accident had been occa- sioned by a coachman who constituted a part of the defendant's own family, there would be no doubt of the defendant's liabiHty ; and the reason is, that he is hired b}- the master either personally or by those * After stating the case. — Ed. SECT. II.J LAUGHER V. POINTER. 107 who are entrusted b}- the master with the hiring of servants, and he is therefore selected by the master to do the business required of him. This rule applies not onl}- to domestic servants who may have the care of carriages, horses, and other things in the emplo}- of the family-, but extends to other servants whom the master or owner selects and appoints to do an}' work or superintend any business, although such servants be not in the immediate employ or under the superintendence of the master. As, for instance, if a man is the owner of a ship, he himself appoints the master, and he desires the master to appoint and select the crew ; the crew thus become appointed bj' the owner, and are his servants for the management and government of the ship, and if any damage happens through their default, it is the same as if it happened through the immediate default of the owner himself So the same principle prevails if the owner of a farm has it in his own hands, and he does not personally interfere in the management, but appoints a bailiff or hind who hires other persons under him, all of them being paid out of the funds of the owner, and selected b}' himself or b}' a person specially deputed by him, if any damage happen through their default the owner is answerable, because their neglect or default is his, as they are appointed b}' and through him. So in the case of a mine, the owner employs a steward or manager to superintend the working of the mine, and to hire under workmen, and he pa^s them on behalf of the owner. These under workmen then become the immediate ser- vants of the owner, and the owner is answerable for their default in doing an}- acts on account of their employer. This, however, is not the case of a man employing his own immediate servants, either domestic servants or others, engaged by him to conduct an}- business, or emplo3'ment, or occupation carried on by him. For the jobman was a person carrving on a distinct employment of his own, in which he furnished men and let out horses to hire to all such persons as chose to employ him. This coachman was not hired to the defendant; he had no power to dismiss him. He paid him no wages. The man was only to drive the horses of the jobman. It is true the master paid him no wages, and the whole which he got was from the person who hired the horses, but that was only a gratuity. It is the case with servants at inns and hotels. Where there is a great deal of business they fre- quently receive no wages from the owner of the inn or hotel, and trust entirely to what they receive from the persons who resort to the inn or hotel, and yet they are not the less the servants of the innkeeper ; they are not servants upon wages, but servants upon expectation of gratuities. And, therefore, if the defendant is in this case to be answerable for the acts of the driver provided by the jobman, it must be upon this principle, that if a man either for his benefit or pleasure employs an agent to conduct any business, such agent is to be looked upon in the same light as if he was the immediate servant of the employer, and that the owner of the property by employing such an agent to transact his business, confides to him the choice of the undet l08 LAUGHER V. POINTER. |_CHAP. IL workmen, and then the principle must go on to this, that such agent and under workmen are to be considered in the same light as the fore- man or manager of a person in conducting his business, and as the workmen selected by such foreman or manager ; and that it makes no difference to persons who receive an injur}- in what light the offending party stands to the principal, whether as an under workman employed b}- an agent, or an under workman employed by the foreman of the principal. And that the onl}- thing to be looked to is, whether in the end the principal pays for the employment in the course of which the injur}' is occasioned. But I think tliat, upon principle, this rule cannot be carried so far. In Bush V. Steinman, 1 Bos. & Pul. 407, indeed, Mr. Justice Heath expresses it as his opinion that if a person hires a coach upon a job, and a job coachman is sent with it and does any injur}', the hirer of the carriage is answerable. That is certainly entitled to great weight, as being the opinion of a very able judge. It was, however, only an obiter dictum, and in a case where, like the present, there is a difference of opinion amongst the judges, the question must, if possible, be deter- mined upon principle and decided cases. If a man charters a ship for a voyage or for time, and the master and mariners are appointed by the owner, this ship is employed for the benefit and for transacting the business of the charterer, just the same as if he had a ship of his own employed in the same service, and it might be said that he deputes to the owner the selection of the master and mariners ; but in such a case the law has never considered the charterer liable to third persons for the negligence of the master and mariners. In Fletcher v. Braddick, 2 N. R. 182, the owners had chartered the vessel to the commissioners of the navy, who were to put an officer on board, under whose direction the master was to act, and though there was a king's pilot on board, yet the owners were nevertheless held liable for running down the plaintiffs ship. In Nicholson v. Mounsey, 15 East, 384, a captain of a man of war was held not liable for the default of the lieutenant whose watch it was when an injury was committed. Suppose a man has a ship or a carriage or other thing to repair, and he, instead of having the repairs done on his own premises and by his own servants, sends it out to be repaired by a person who exercises the public employment under which it would be repaired, and any damage hap- pens in the course of the repair by the negligence of the persons employed ; these are employed by a person who may be considered the agent of the principal, and yet the law would not hold the principal liable. If a man hires a carriage and horses to travel from stage to stage, the carriage and horses are employed for the benefit or pleasure of the traveller, instead of using his own, which he may not do either from inability to keep horses or a desire of expedition, and yet the law has never considered the traveller liable. There is no difference in principle between a man's travelling by the stage or travelling by the day. In one case and the other the traveller is using the carriage and SECT. II.] LAUGHER V. POINTER. 109 horses for his benefit ; he pays so much by the day instead of so much by the mile ; he pays the coachman a gratuity in one case, and the postilion in the other case, and yet the traveller has never been held liable. As to this latter point, there are some decisions in point : Sam- raell V. Wright, 5 Plsp. 2G3, where the horses were hired to go to Windsor, and the owner of the horses was held liable, because the}' were under the care and direction of his servants. The carriage belonged to the traveller, who was the marchioness of Bath. The case of Dean v. Branthwaite, 5 Esp. 35, arose on a dispute between the owner of the carriage and the owner of the horses, which were hired to go to Epsom. Lord EUenborough says, a person who hires horses under such circumstances has not the entire management and power over them, but that they continue under the control and power of the stable-keeper's servants who were entrusted with the driving ; and that he would be answerable for any accident occasioned b}' the post- boy's misconduct on the road, and then he mentioned a case which had occurred of that kind. In this case, also, the party travelling had his own carriage. The same rule would apply to a hackney-coach; a man instead of hiring his own carriage and servants, employs a hacknej-- man to drive him ; there it is for the profit or convenience of the person riding in the coach, and yet the person so riding is not liable. The cases referred to before Lord EUenborough onl}- show, indeed, the owner of the horses to be liable, but it may be said the traveller is liable also. I think not. The coachman or postilion cannot be the servant of both. He is the servant of one or the other, but not the servant of one and the other; the law does not recognize a several liabilit}' in two principals who are unconnected. If the}' are jointly liable you may sue either, but you cannot have two separately liable ; you must bring your action either against the principal, or the person who commits the injury. Stone v. Cartwright, 6 T. R. 411. There it was held that an action for an injury sustained through the improper working of a mine, must be brought agahist the owner of the mine, or against the workmen who did the injury, but that it could not be brought against an agent who hired the workmen. The allowing two principals to be severally liable would tend to a multiplicity of actions, because if the traveller was liable, he might have an action against the stable-keeper for supplying improper drivers and horses, and then the stable-keeper might have an action against his own drivers. If, indeed, several persons are concerned in a trespass, or other tortious act, they are liable jointly or severally, at the election of the party injured, but the several liability arises from the joint liability, and from the rule of law that a party injured need not sue all who are guilty of the wrongful act ; but what I say is, that two persons cannot be made separately liable at the election of the party suing, unless in cases where they would be jointly liable ; and there cannot be any ground for saying that the hirer of the horses and the jobman would be jointly liable. There are, however, cases which have been determined upon princi* 110 LAUGHER V. POINTER. [CHAP. IL pies not altogether consonant to what 1 have before considered are those upon which the liabilities of parties should be determined, where persons have been held liable for the negligence of individuals who were not their own immediate sei'vants, but the servants of agents whom the}' had employed to do their work.^ . . . But supposing these cases to be rightl}' decided, there is this mate- rial distinction, that there the injury was done upon or near and in respect of the property of the defendants, of which they were in pos- session at the time. And the rule of law ma}' be that in all cases where a man is in possession of fixed property he must take care that his property is so used and managed that other persons are not injured, and that, whether his property be managed by his own immediate ser- vants or by contractors or their servants. The injuries done upon land or buildings are in the nature of nuisances, for which the occupier ought to be chargeable when occasioned by anj' acts of persons whom he brings upon the premises. The use of the premises is confined by the law to himself, and he should take care not to bring persons there who do an\' mischief to others.^ .... It may be said that the defend- ant in the present case was owner of the carriage, and that therefore the principles of these latter cases apply ; but, admitting these cases, the same principle does not apply to personal movable chattels as to the permanent use and enjoyment of land or houses. Houses and land come under the fixed use and enjoyment of a man for his regular occu- pation and enjo3'ment in life ; the law compels him to take care that no persons come about his premises who occasion injur}' to others. The use of a personal chattel is merely a temporary thing, the enjoy- ment of which is, in many cases, trusted to the care and direction of persons exercising public employments, and the mere possession of that, where the care and direction of it is entrusted to such persons, who exercise public employments, and in virtue of that furnish and provide the means of using it, is not sufficient to render the owner liable. Movable property is sent out into the world by the owner to be conducted by other persons : the common intercourse of mankind does not make a man or his own servants always accompany his own property ; he must in many cases confide the care of it to others who are not his own servants, but whose employment it is to attend to it. And in the instances of various kinds of carriages, they are frequently, in the common intercourse of the world, confided to the care of persons who provide the drivers and horses, and it is not considered that the drivers necessarily belong to the owner of the carriage. And I think that there cannot be any difference, in point of law, as to the liabilities of these persons arising from the mere ownership of the carriage, and that the ownership of the carriage makes him no more responsible than it would do if it had been sent to be repaired by a coachmaker 1 Here Bush v. Steinman, ante, p. 98, and Sly v. Edgley, 6 Esp. 6, were stated. — Ed. 2 Here Littledale v. Lord Lonsdale, 2 H. Bl. 299, and Leslie v. Pounds, 4 Taunt 649. were stated. — Ed. SECT. II.] LAUGHER V. POINTEK. lH who, in the course of repair, had occasioned any damage to other per- sons ; but if the injury arises from the driver, it is he, or the person who appoints him, that is to be responsible. It ma}- be said that, according to this doctrine, a person wlio liired job-liorses and a coach- man for a year would not be answerable for the negligence of the coachman ; if the coachman remain the mere servant of the jobman, not otherwise employed in the service of the hirer, 1 think the hirer would not be liable for whatever time he hired the coachman and horses ; but where the coachman is hired for a year, it will verj' often happen that he is em[)loyed in other services besides the mere atten- tion to the coach and horses ; and if, by such circumstances, he be- comes the servant of the hirer, besides being the servant of the jobman, the case might then admit of a different consideration. In Chilcot v. Bromley, 12 Ves. 114, testator bequeathed to all his servants £500 each ; and it was held, that a coachman supplied by a jobmaster, together with a carriage and horses which were hired by the 3'ear, was not entitled to be considered a servant. This, however, is not the case of a servant employed for a year or a month, and upon the whole of the circumstances of this case, I am of opinion that this defendant is not liable for the damage that has occurred, and that the rule for setting aside the nonsuit should be discharged. There are man}' cases where questions have arisen upon the liabilities of postmasters, of captains of ships of war, and of owners of ships who have taken pilots, and of factors who have acted for their principals, and others, as to what degree of possession is kept by the owner. These I have not thought it necessary to notice, because I think the sole question here is, whether if a man employs another to do work respecting personal movable property, and that other furnishes a ser- vant, that servant is to be considered in the same light as a servant appointed by the person himself. HoLROYD, J.^ It was contended in the argument, not only that the defendant was not responsible for the driver, but that the plaintiff could not recover on this declaration, each count of which contained as a material allegation that the act was done by the defendant's servant, whereas the driver could not be considered as his servant. But my mind has come to the conclusion, that the defendant is responsible for the driver's negligence, and responsible too upon this declaration, the driver being to be considered, in my opinion, for this purpose, as, in law, his servant. It appears to me that the defendant stands in the same situation of responsibility as if the horses had been driven by Bryant himself, or as if they had been driven by a person chosen by the defendant himself, for the driving is equally under the authority and orders of the defendant, and equally for his profit, benefit, or pleasure, and the driver is, I think, equally the defendant's servant for ^ After stating the case. — Ed. 112 LAUGHER V. POINTER. [CHAP. II that purpose, whether the driver be Bryant himself, the person directly hired and employed by the defendant, or be another person selected and appointed by the defendant himself, or a person selected and appointed bj' Bryant under the authority or permission of the defend- ant. The question is not whether Brjant, as the owner of the horses and the immediate master of the driver, might or might not have been made responsible for the driver's negligence, nor is this the case of a letting for a particular purpose onl}', such as going to a particular place, as in Dean v. Branthwaite, 5 Esp. 35, and Sammell v. Wright, 5 Esp. 263, where the hirer was considered not to have the entire management and control over the things so hired ; from which cases the present is distinguishable, because the present hiring was for no such particular purpose, but to go with the carriage where the defend- ant chose, and to be under his general authority and orders in that respect for a certain time By such a letting for a certain time the defendant became possessed in law of the horses so let to him while he was using them under such letting. It would be so clearl}', if they had not been retained in the custody of a driver provided by Bryant, according to the doctrine of Lord EUenborough in Lotan V. Cross, 2 Camp. 464, where he says, "show a letting" (sc. of the chaise) " for a certain time to Brown, and the possession would be in him ; " and in Hall v. Pickard, 3 Camp. 187, where by the horses being let to hire to Dr. Carey for a certain term, he, and not the owner, was deemed to be the person in possession of them, as he. Dr. Carey, had a right to retain them till that time was expired, though in that case indeed Dr. Carej' is stated to have been driving them by his own servants when the mischief was done. But in the present case, although the horses were continued in the custod}' of a driver provided by Bryant, jet as the horses and the driver were to be for the use and subject to the general directions of the defendant, and as the defendant had a right to retain them till the time for which they were hired was expired, and as they were at the time the mischief was done in the use and under the directions of the defendant, I think that the driver was for this purpose in the employ, and in law, the servant of the defendant, and that the defendant was in law answerable for the driver's negligence in the execution of the defendant's orders in such eraplo}', in whatever situation the driver might also stand with respect to Bryant, with regard to Brj'ant's responsibility for him, at the elec- tion of the plaintiff. A person ma}' stand in the relation of servant to two different persons as his masters in two different respects with regard to the same thing, and this even though the service done, or to be done, be special and limited to a single act, as appears in 2 Eolle's Abr. 556, pi. 14. . . . So in the present case, I think the horses were to be considered in law as in the possession of the defend- ant, and the driver as the defendant's servant, for the purpose for which he was sent to the defendant ; and I think that a taking of the horses or driver awav from the defendant's service during the time for SECT. II.] LAUGHER V. POINTER. 113 which he had hired them, would have been a taking them away from liim, for which he might have maintained an action of trespass, as for a taking them out of his possesssion and service ; and, consequentU', that he was answerable for the driver's negligence in driving him, the defendant, while under his, the defendant's, orders, and it is to be con- sidered, I think, as the defendant's driving of the carriage and horses by his servant.^ . . . Bayley, J. The question in this case is, whether the owner of the carriage is answerable for the negligence of the driver. This is not the case of a driver, where, according to established usage, carriage and horses and driver belong, not to the person driven, but to another master, who may easily be discovered, as in the case of a hackney- coach ; nor is it the case of a driver, where, according to established usage, neither horses or driver belong to or are commonly in the ser- vice of the person driven, but belong to another master, who is either known or may easil}' be discovered, as in the case of post horses ; but it is the case of a person who hires a pair of horses for the day to draw his own carriage, and leaves it to the owner of the horses to send such person to drive them as such owner may think fit. There is nothing from usage or otherwise to impl}' that the horses are not the defendant's and the driver his regular servant ; nothing to designate or to make it easy to discover to whom the horses and driver belong. The general rule in the case of master and servant, as laid down in Boson v. Sand- ford, 2 Salk. 440, is, that the man who employs another is answerable for him. Had the defendant hired the driver, can there be a doubt but that he would have been defendant's servant? If he leaves it to the owner of the horses to hire him, is he not, in substance, hired b>- the defendant? If I hire horses of A. and hire B. to drive, B. is undoubt- edly, for the time, my servant. Is the driver less my servant fOr the time, because I hire him and the horses under one bargain, and allow the owner of the horses to select him? He is employed for me; that cannot be disputed. He drives where I direct, and so as I require nothing contrary to ni}' contract with the owner of the horses, he must obey my reasonable commands. He must go where I order ; must stop where I require ; must go the pace I specif}'. Though the owner of the horses is, to a certain extent, his master, I am, to a certain extent, his master also. Though the former is his master in general, he has, for a time, let him out to me ; and a master is liable for the acts of one who is in his service or emplo}-, though the master who is to be charged is not his immediate employer, but employs him through the medium of another. If I hire the driver, I am answerable for him ; if I employ J. S. to hire him, am I not still answerable? I exercise my own judgment in the one case, I leave it to J. S. to exercise a judg- ment for me in the other, but still it is for me that the judgment is exercised. The service is performed for me. It is my work the driver * Here Bush v. Steiuinau, ante, p. 98, was stated. — Ed. 8 114 LAUGHER V. POINTER. [CHAP. IL does. In Bush v. Steinraan, 1 Bos. & P. 404, the man who did the wrong was not selected by the defendant, was not immediately employed by him, he was only employed through the medium of one who con- tracted to do the work for the defendant, but he was doing the defend- ant's work. He was (through the medium of the contractor indeed, but still he was) working for the defendant, and on that account the defendant was held liable. " If a deputy has power to make servants, the principal will be chargeable for their misfeasance, for the act of the servant is the act of the deputy, and tlie act of the deput}- is the act of the principal." Per Holt, C. J. in Lane v. Cotton, 1 Ld. Raym. 656. The owner of a ship is answerable for the misfeasance of mariners, though he leaves it to the master to select the crew. The owners of a coach will be liable, though the}' leave it to J. S. to select the driver and horses, or though the}'^ employ as driver the man who owns the horses. In man}- instances one proprietor horses a coach for one stage, another for a second, and so on, and in some instances the man who finds the horses finds the coachman also. Shall this take away the liability of all the proprietors? Shall it be said, if the coach does an injury upon a given stage, that the proprietor who finds the horses and driver for that stage shall alone be answerable? The horses and driver are found by the one to do the work of all, the}- are employed upon the work and for the benefit of all, and therefore all are respon- sible. Nor does it appear to me to make an}' distinction whether the driver and horses are hired for a single day only, or for a longer period. Had they been hired by the year, can there be a doubt but that the hirer would have been answerable? What if they had been hired for a month, or for a week? Would the difference of period for which they were hired make a difference in the responsibility ? Can any legal princi- ple be adduced to make the period the criterion of being answerable or not? The driver is equally employed on account of the hirer, to do the work of the hirer, to obey the lawful commands of the hirer, and to be the temporary servant of the hirer, whether he is engaged for the day, the week, the month, or the year, and the hirer bears the appearance for the time of standing in the relation of master to the driver, and these are circumstances which in my judgment make the hirer responsible. Upon these grounds, therefore, that the driver in this case was in the temporary employ and service of the defendant, and that this is not a case in which according to the known and established course of pro- ceeding, it is notorious that the person driven does not stand in rela- tion of master to the driver, and it is matter of easy discovery who does stand in that relation, as in the case of hackney-coaches and post horses ; and that there was nothing in this case to rebut the 2)rhnd facie pi-esumption that the horses were the defendant's, and the driver his servant, I am of opinion that this defendant was liable to the action, and that the nonsuit was wrong. Abbott, C. J.^ Having made these remarks upon the former cases. 1 After reviewing the decisions. — Ed. SECT. II.] LAUGHER V. POINTER. 115 I will now proceed to make some observations upon the case as it might stand independent of prior decisions. I admit the principle that a man is answerable for the conduct of his servants in mutters done by them in the exercise of the authority that he has given to them, and also (which is the same thing in other words) that whatever is done by his authority is to be considered as done by him. I am sensi- ble of the didiculty of drawing any precise or definite line as to time or distance. But I must own that I cannot perceive any substantial difference between hiring a pair of horses to draw my carriage about London for a day, and hiring them to draw it for a stage on the road I am travelling, the driver being in both cases furnished by the owner of the horses in the usual way ; nor can I feel any substantial difference between hiring the horses to draw my own carriage on these occasions, and hiring a carriage with them of their owner. If the hirer be answerable in the present case, I would ask on what principle can it be said that he shall not be answerable if he hires for an hour or for a mile? He has the use and benefit pro tempore, not less in the one case than in the other. If the hirer is to be answerable when he hires the horses only, why should he not be answera!)le if he hires the carriage with them? He has the equal use and benefit of the horses in both cases, and has not the conduct or management of them more in the one case than in the other. If the teujporarj- use and benefit of the horses will make tlie hirer answerable, and there be no reasonable distinction between hiring them with or without a carriage, must not the person who hires a hackney-coach to take him for a mile, or other greater or less distance, or for an hour, or longer time, be answerable for the conduct of the coachman? Must not the person who hires a wherr\' on the Thames be ausw^erable for the conduct of the waterman? I believe the common sense of all men would be shocked if any one should affirm the hirer to be answerable in either of these cases. ATill it be said that the hirer is not answerable in either of these cases because the coachman and the wherryman are read}' to attend to the call of any person who will emploj- them? I answ^er, so, also, is the stable-keeper. If it be said that they are obliged to obe}' the call of anj- person when they are on the stand, or at the stairs, I would ask. Will there be any difference if the}' are spoken to beforehand, and desired to attend at a particular hour? which is not an unusual occur- rence where persons have an engagement to go out at an early hour in the morning. If the personal presence of the hirer will render him responsible, why should he not be equallv so if he is absent, and has* hired the horses or carriage for his family or servants? Does his presence give him an}' means of superintending or controlling the driver? Can any legal obligation depend upon such minute distinc- tions? If the case of a whei'ry on the Thames does not furnish an analogy to this subject, let me put the case of a ship hired and chartered for a voyage on the ocean to carry such goods as the charterer may think fit to load, and such only. Many accidents have occurred from 116 LAUGHER V. POINTER. [CHAP. II. the negligent management of such vessels, and man}' actions have been brought against their owners, but I am not aware that any has ever been brought against the charterer, thougli he is to some purposes the dominus pro tempore, and the voyage is made not less under his emploj-ment, and for his benefit, whether he be on board or not, than the journe}- is made under the employment, and for the benefit of the hirer of the horses. Wh}', then, has the charterer of the ship, or the hirer of the wherry, or the hackney-coach, never been thought answer- able ? I answer. Because the shipmaster, the wherryman, and the hackney-coachman have never been deemed the servants of the hirer, although the hirer does contract with the wherryman and the coach- man, and is bound to pa}* them, and the pay is not for the use of the boat, or horses, or carriage onlj', but also for the personal service of the man. In the case now before the court, the hirer makes no con- tract with the coachman ; he does not select him ; he has no privity with him ; he usually- gives him a gratuity, but he is not by law obliged to give him anything ; and from thence I conclude that the coachman is not the servant of the hirer. And if the coachman is not the ser- vant of the hirer on such an occasion, but is chosen and entrusted bj' the owner of the horses to conduct and manage them, I think it cannot be said that the hirer has in law, what he certainlj' has not in fact, the conduct and management of the horses. If the coachman is in such a case the servant of the hirer, he maj', at anj' moment, require him to quit the charge of the horses, and deliver them over to another, and must be obej-ed ; but I think it cannot be said that the coachman may not lawfully refuse, and ought not in most cases to do so. It does not seem to be doubted that the injured party maj' sue the owner of the horses ; is there, then, an}' rule of law, or any principle of convenience, requiring that he should have his choice of suing either the stable- keeper or the hirer at his election. Generally speaking, the one is as well able to pay damages as the other, and may be as easily found out and known, and more easily if the carriage and hoi'ses are hired together. Should the hirer be held responsible in the first instance, he must certainly have his remedy over against the letter, so that the letter will in the end be answerable, and there will be a circuity of action, which is inconvenient, and to be avoided if possible. I have acknowledged the difficulty of drawing a line with reference to time or distance ; and I think we must look to other circumstances in order to ascertain the obligation of the hirer. Length of time may in itself be a circumstance deserving of attention, because it may be evidence of the subsequent approbation and continuance, if not of the original choice of the coachman. The payment of board wages and the furnishing a livery may also be circumstances worthy of attention, because they also may in some cases be considered as evidence of a choice and a contract. I do not pronounce upon any case of this kind. I speak only of the present case, and of the evidence given at the trial ; and not being able to find any reason satisfactory to my own SECr. 1 1. J JOEL V. MORISON. 117 mind, by which the defendant in this cause can be made answerable in the present action, 1 lliink myself bound to say tliat, in my opinion, the rule I'or setting aside the nonsuit ought to be discharged. Mule discharged. JOEL V. MORISON. Nisi Prius. 1834. [6 C. S,' P. 501.] The declaration stated, that, on tlie 18th of April, 1833, the plaintiff was proceeding on loot across a certain public and common higlnva}-, and tliat the defendant was possessed of a cart and horse, which were under the care, government, and direction of a servant of his, who was driving the same along the said highway, and that the defendant by his said servant so carelessly, negligently, and improperly drove, governed, and directed the said horse and cart, tliat, by the carelessness, negli- gence, and improper conduct of the defendant by his servant, the cart and horse were driven against the plaintiff, and struck him, whereby he was thrown down and tlie bone of one of his legs was fractured, and he was ill in consequence, and prevented from transacting his business, and obliged to incur a great expense in and about the setting the said bone, &c., and a further great expense in retaining and employing divers persons to superintend and look after his business for six calen- dar months. Plea — Not guilty. From the evidence on the part of the plaintiff it appeared that he was in Bishopsgate Street, when he was knocked down by a cart and horse coming in the direction from Shoreditch, which were sworn to have been driven at the time by a person who was the servant of the defendant, another of his servants being in the cart with him. The injur}' was a fracture of the fibula. On the part of the defendant, witnesses were called who swore that his cart was, for weeks before and after the time sworn to by the plain- tiff's witnesses, only in the habit of being driven between Burton Crescent Mews and Finchley, and did not go into the city at all. Thesiger, for the plaintiff, in reply, suggested that either the defend- ant's servants might in coming from Finchley have gone out of their way for their own purposes, or might have taken the cart at a time when it was not wanted for the purpose of business, and have gone to pay a visit to some friend. He was observing that, under these circum- stances, the defendant was liable for the acts of his servants. Parke, B. He is not liable if, as you suggest, these young men took the cart without leave ; he is liable if they were going extra viam in going from Burton Crescent Mews to Finchley ; but if they chose to go of their own accord to see a friend, when the}' were not on theil master's business, he is not liable. 118 WRIGHT V. WILCOX. [CHAP. IL His Lordship afterwards, in summing up, said : This is an action to recover damages for an injury sustained by the plaintiff, in consequence of the negligence of the defendant's servant. There is no doubt that the phxintiff has suffered the injury, and there is no doubt that the driver of the cart was guilt}' of negligence, and there is no doubt also that the master, if that person was driving the cart on his master's business, is responsible. If the servants, being on their master's busi- ness, took a detour to call upon a friend, the master will be responsible. If you think the servants lent the cart to a person who was driving without the defendant's knowledge, he will not be responsible. Or, if you think that the young man who was driving took the cart surrepti- tiouslj', and was not at the time employed on his master's business, the defendant will not be liable. The master is only liable where the ser- vant is acting in the course of his employment. If he was going out of his wa}', against his master's implied commands, when driving on his master's business, he will make his master lialile ; but if he was going on a frolic of his own, without being at all on his master's busi- ness, the master will not be liable. As to damages, the master is not guilty of an}' offence, he is onl}' responsible in law, therefore the amount should be reasonable. Verdict for the plaintiff — damages, £30.* Thesiger and S. Martin, for the plaintiff. Platt^ for the defendant. WRIGHT V. J. AND S. WILCOX. Supreme Court of New York. 1838. [19 Wend. 343.] This was an action on the case, tried at the Cayuga circuit, in Octo- ber, 1836, before the Hon. Daniel Moskley, one of the circuit judges. The suit was brought for an injury sustained by tlie son of the plain- tiff, who was a minor, in being run over by a wagon driven b}' S. Wilcox, the son of J. Wilcox, whilst in the employment of the father. Tiie plaintiff's son was a ver}' young lad, and on his wav to school asked S. Wilcox to permit him to ride ; who answered that he might do so when be got up a hill which he was then ascending. When the hill was ascended, the lad took hold of the side of the wagon between the front and hind wheels. S. Wilcox did not stop his team. He was cautioned by a bystander that if he did not stop he would kill the bo}'. He looked behind him; the horses were then walking; and seeing the plaintiff's son and other boys attempting to get on the wagon, he cracked his whip and put the horses upon a trot. The plaintifi's son ^ Compare Rayner v. Mitchell, 2 C. P. D. 357 (1877). — Ed. SECT. II.] WRIGHT V. WILCOX. 119 fell, and one of the hind wheels passed over him, and greatly injured him. A joint action was brought against the defendants. A motion was made for a nonsuit, which was denied. The judge charged the jury that both defendants were answerable, whether the injury was wilful, or only attributable to negligence. The jury found a verdict for the plaintiff against both defendants, with one hundred and nine dollars damages. A motion was made for a new trial. J. Williams and S. Stevens^ for the defendants. M. T. Reynolds^ for the plaintiff. By the Court, Cowen, J. In a case of strict negligence by a ser- vant while employed in the service of his master, I see no reason why an action will not lie against both jointly. They are both guilty of the same negligence at the same time, and under the same circumstances ; the servant in fact, and the master constructively, b}- the servant, his agent. Mr. Hammond lays down the rule in this way : " Whether the principal and inferior may be charged jointly depends on whether the inferior is liable as a trespasser vi et armis, or in case only. If the latter, they may be sued together, but otherwise if the former ; it being held, how justly ma}- be questioned, that a principal is liable for his agent's misconduct only in case." Ham. on Part, to Actions, 85, 86. The rule is in the main doubtless right, but seems to be shaken b}' Moreton v. Hardern, 6 Dowl. and Ryl. 275, in respect to the quality of the servant's act. There were, in that case, three proprietors of a coach ; one was driving, and ran against tlie plaintiff's cart. All three were sued in case ; and several judges thought either trespass or case would lie against the driver, though the mischief arose from mere neg- ligence ; but all agreed that case onl}' would lie against the other two who were absent ; j'et the action was maintained against all three. But it is impossible to sustain this verdict against the father. It is difficult to infer from the evidence anything short of a design in Stephen the servant to throw the plaintiff's boy from the wagon; and the judge, as I understand the charge, told the jur}' that the defendants were jointly liable in that view. If Stephen, in whipping the horses, acted with the wilful intention to throw the plaintiff's boy off, it was a plain trespass, and nothing but a trespass, for which the master of Stephen is no more liable than if his servant had committed any other assault and batter}'. All the cases agree that a master is not liable for the wilful mischief of his servant, though he be at the time, in other respects, engaged in the service of the former. 1 Chit. PI. C9, ed. of 1828: M'Manus v. Crickett, 1 East, 106; Ham. on Part, to Actions, 83 ; Croft v. Alison, 4 Barn, and Aid. 590 ; 1 Chit. Gen. Pr. 80. Browcher v. Noidstrom, 1 Taunt. 568. AVhy is the master chargeable for the act of his servant? Because what a man does by another he does by himself. The act is within the scope of the agenc}'. Reeve's Dom. Rel. 357. " A master is not answerable," says Mr. Hammond, " for every act of his servant's life, but onl}' for those done in his relative capacit}*. To charge the master, it must always be shown or 120 WRIGHT V. WILCOX. [CUAP. II presumed, that the relation of master and servant subsisted between them in the particular affair. If the master is liable under other cir- cumstances, he is so, not quatenus master, but as any one would be who instigates an injury." The dividing line is the wilfulness of the act. If the servant make a careless mistake of commission or omis- sion, tlie law holds it to be the master's business negligently done. It is of the very nature of business that it may be well or ill done. We frequently speak of a cautious or careless driver in another's employ- ment. Either may be in the pursuit of his master's business, and neg- ligence in servants is so common that the law will hold the master to the consequences as a thing that he is bound to foresee, and provide against. But it is different with a wilful act of mischief. To subject the master in such a case, it must be proved that he actually assented, for the law will not imply assent. In tlie particular affair there is, then, no longer the presumed relation of master and servant. The distinction seems to resolve itself into a question of evidence. A man shall be presumed to intend the ordinarj- consequences of his own acts ; and especially so far as such consequences may be innocent of all evil intention ; for these he may be safely held accountable. But for those which are remote or barely possible, he is not accountable ; and if they be at the same time criminal, it would be violating one of the plainest principles of presumptive evidence to sa}' that he intended tliem. " The master's liabilit\' has never been questioned," says Judge Reeve, "when a servant does an act injurious to another, through negligence or want of skill, on the principle that the master should at his peril employ servants who are skilful or careful." Reeve's Dom. Rel. 357, 358. He admits that the English cases den}' the master's liability where the servant's act is wilful ; but questions the soundness of the distinction if the wilful act be done in the immediate performance of his master's business ; in which I understand the learned judge at the circuit to have followed him in the case at bar. The answer is, that the law holds such wilful act a departure from the master's business. Judge Reeve remarks that one of two innocent persons must suffer, and that should be the man who put it in the power of the servant to do the injury ; and the reason is as strong that the master should run the risk of his servant's unruly passions, as his want of care. Clearly the argument proves too much. It would make the master account- able for ever}' mischievous act of the servant which he is enabled to commit in consequence of the general relation ; for aught I see, including the credit which the servant ma}' obtain with his merchant. The learned writer puts a distinction involving the very question we are considering. A servant, driving a wagon, leaves it and commits an assault and battery ; for that he admits the master is not liable ; other- wise, if he should drive it violently over a man with intent to injure him. "In the first place" (he says), "the servant had abandoned his master's business ; in the latter he was in the immediate pursuit of it ; In the first he was not driving his master's wagon, in the last he was." 6ECT. II.J WRIGHT V. WILCOX. 121 Now the authorities deny that when the servant wilfully drives over the man, he is in his master's business. They hold it a departure, and a going into the servant's own independent business. It is true, he is still driving his master's wagon, and so he would be though he should use it to run away from service. It will hardly be contended, that after he has completed his escape, the master would be liable for his running over a man; and wh}'? Because he has taken up a new and distinct object of his own, and is engaged in executing that ; and has he not, to every material purpose, done the same whenever he commits a wilful injury to another ? In M'Manus v. Crickett, the servant, while driving a chariot on the road as authorized by his master, wilfully drove against the plaintiff's chaise. Lord Kenton said that the act being wilful, the chariot might be considered for that purpose in the possession of the servant as his special proi)erty, and not the master's. He said : " When a servant quits sight of the object for which he is employed, and without having in view his master's orders, pursues that wliich his own malice suggests, he no longer acts in pursuance of the authority given him." He puts the master's liability on the ground of negligence or unskilfiilness, with no purpose but the execution of his orders. Judge Reeve says it is difficult to reconcile such a doctrine with the cases which hold a sheriif liable for the wilful misfeasance of his deputy. But such cases are clearl}', as stated b}' Mr. Hammond, exceptions to the general rule for reasons of policy. Hamm. on Part, to Actions, 83, 84. The master is liable in case onl}- ; but the action against the sheriff is trespass, and lies against him for every act of his officer done colore officii, even the execution of process after the return day, and the seizing of the goods of a third person. Id. Ackworth v. Kempe, I Doug. 40 ; Parrot v. Mumford, 2 Esp. N. P. Cas. 585. So for arresting undei' color of process without having an}- in his hands. Smart v. Hutton, 2 Nev. and Mann. 426. The line where the master's liability shall terminate must be placed somewhere ; and the acquiescence of Westminster Hall for many j-ears in the rule we have cited as laid down b}' Lord Kenyon, is an evidence of the common law not to be resisted, especialh' as it will not be found, I imagine, to conflict with any general principle of that law. The statute 1 R. S. 693, § 6, has altered the rule in respect to car- riages for the conveyance of passengers. The owners are here liable, whether the injur}' done to another b\' the driver be wilful or neg- ligent. It is not contended, however, that this statute applies to the case at bar. The objection to the judge's charge goes to the very foundation of the action against Joseph Wilcox, the father. It should have been put to the jur\' that, if they were satisfied from the evidence of Stephen's design to throw the plaintiff's son from the wagon, they should have acquitted his father. It is true that by the 2 R. S. 456, § IG, 2d ed., this act of Stephen, though wilful, and formerly, therefore, the subject of an action of trespass only, is, by the statute, made the 122 SLEATH V. WILSON. [CHAP. IL subject of an action on the case. The only consequence is that he might have been convicted and liis father acquitted. But the statute, though it mitigates the consequence of misjoinder, never intended to alter the effect of the relation between master and servant. It neither adds to the right of the plaintiff nor the liability of the defendant. It goes only to the form of the remedy, b}^ giving case in almost all instances of personal injuries redressible formerly by trespass only. A new trial must be granted, the costs to abide the event.^ SLEATH V. WILSON. Nisi Prius. 1839. [9 C. cj- P. 607.] Case to recover damages for an injury occasioned to the plaintiff by the negligent driving of a servant of the defendant. Pleas — 1st, that the horse and carriage were not the defendant's ; 2nd, that the person driving was not the defendant's servant ; 3rd, that, at the time when the injury was sustained, the horse and carriage were not in the employ of the defendant, but were improperly used b}' the person driving then^ for purposes of his own. Wilde, Serjt. , in stating tlie plaintiff's case, referred to the case of Joel y. Morison. The witnesses on the part of the plaintiff" stated that the defendant's servant was driving a four-wheeled phaeton, drawn by one horse, along the Old Street Road, at a quick pace ; some described it as very fast, others as not so fast ; but they all agreed in the fact that the plaintiff, who was an old woman nearly sevent\' years of age, and was crossing the road, was knocked down b}' one of the shafts of the carriage, and much bruised, and had some of her teeth knocked out. Slade, for the defendant. The plaintiff's counsel must make out two things to entitle him to a verdict : 1st, that the servant was acting within the due scope of his authorit}' ; and, 2ndly, that he was driving carelessl}'. The case cited for the plaintiff is not all fours with the present. I rel\' on the case of M'Manus v. Crickett, 1 East, 106. I shall show that the servant, on the present occasion, was acting contrary to the directions of his master. He had no business in Old Street Road at all ; it was four miles out of his wa}-. My learned friend admits that, if a servant take his master's carriage without his knowl- edge, the master will not be liable for his acts. I do not see any difference between that state of facts and this, so far as the conduct of the servant is concerned. I see no difference between the servant in 1 Ace: De Camp r. Mississippi & Missouri Railroad Co., 12 Iowa, 348 (1861); Wood r. Detroit City Street Ry. Co., 52 Mich. 402 (1884); Galbrielson o. Waydell 135 N. Y. 1 (1892). "Compare Dwinelle v. N. Y. C. & H. R. Raihroad Co., 120 N. Y 117, 125-126 (1890). — Ed. SECT. II.] SLEATH V. WILSON. 123 the present case driving out of his way, and the servant in the case admitted taking the carriage out of the coach-house, and using it for his own purposes. As to the question of negligence, driving on the wrong side of the road is not proof of negligence ; there is no obli- gation to keep on any particular side of the road, if there is room enough on the road, and no other carriages are in the way. The servant who was driving the carriage was called as a witness, and said: "I drove my master to Great Stamford Street; my orders were, to put up at the Red Lion in Castle Street, Leicester Square, and meet my master at the Olympic Theatre; I went into Old Street Road on business for myself ; I took a parcel for m}' wife to her father and mother; I was driving at a slow pace in Old Street Road, — at a pace not exceeding four miles an hour ; I called to the woman three times distinctly, as loud as I could ; she took no notice ; I pulled up imme- diately when I found she took no notice ; the horse was walking then ; her back was turned, and I suppose the shaft of the vehicle struck her on the shoulder ; somebody seized the horse by the bit, and he reared on his hind legs, and backed ; I was sitting low at the time ; I went to the old woman, and offered her a recompense of £5 ; she said she could do nothing with it, I must speak to the gentleman ; I went to him, and he said he would speak to the part}', and I heard nothing more of it>; a friend gave me the monej'." On his cross-examination he said : " I do not know that that money came from my master ; it was a friend at Turnham Green ; I did not go to the old woman by my master's desire ; the only conversation I had with my master before I went was being scolded for going out of my wa}-; the name of the per- son I got the money from was Barnett; he is a gentleman, a lawyer; as far as I know, he is my master's lawyer. When I came back, I gave the money back to Mr. Barnett ; it was dusk when I was in the Old Street Road ; I saw an object as I was driving ; it had a cloak on ; I was quite pretty nearly at a stand-still, when she ran herself against the shaft; she came in contact with the shaft ; I was pulling up at the time ; her back was towards the horse ; she w^as looking a contrary wa}', and then she fell down ; I suppose she fell down from fright ; I got to the Red Lion about half-past seven ; I went there the direct road from Old Street Road ; I had lived with the defendant about a year and a half at the time, and lived with him about nine months after." In answer to questions from the judge, he said : " My master did not know anything about my having the parcel to deliver ; I left the car- riage in a yard at the corner of Old Street Road, by Shoreditch, while I went to Bateman's Row with the parcel ; this was about 200 yards from the place where the accident happened." The gentleman at whose house in Stamford Street the defendant was set down, was also called as a witness for the defence, and stated that the carriage arrived at his house about four in the afternoon, that he heard the defendant direct the servant to drive to some stables, the name of which he did not remember, and to meet him afterwards with 124 SLEATH V. WILSON. [CHAP. IL the carriage at the Olympic Theatre, and that the sei'vant turned round and drove the carriage in a direction wliich would lead towards Leices- ter Square. Wilde, Serjt., in reply. First, as to the law: The rule of law I take to be tliis, — if you give your servant the care and control of your carriage and horses, and tell him to take the carriage to a given place, you place the carriage under his control as to the mode in which he is to arrive at that place, and for his conduct in the course of the execu- tion of that order ^-ou will be responsible. "VVe shall have next the case of a stage coach, and it will be said that if the coach does not go by the usual and direct road, the proprietors will not be liable. The case cited of M'Manus v. Crickett is quite a different case, — there the servant had a spite against the officer, and drove against him. Erskine, J. It is quite a different case. Wilde, Serjt. It is an improper mode ; but is a mode of conducting the emplo3'ment — the man was out of his road — his object was the Red Lion Stables, and he went out of his way for purposes of his own, but still it was an improper act while under his master's orders. It may be said next, that if the servant turns out of his road to get some- thing to drink, the master will not be liable for any injury done by him. It is enough that it is in the course of his emplo}-, though he acts im- properlj' in carrying his master's orders into execution. The question is, was he when the act occurred in the course of the master's employ? If he was, the master will be liable. After some observations bj' the learned Serjeant on the question of negligence, Erskine, J., in summing up, said : This is an action brought by the plaintiff to recover damages for an injury which she alleges she has sustained by the negligent conduct of the defendant's servant. The law has said that whencA'er an injur}' has been occasioned by the negligent conduct of a person in the service of another, the master is answerable for it ; and this is for the purpose of inducing those who employ others to take care that they emplo}' proper persons. The defendant pleads, first, that the horse and carriage were not his, and, secondly', that the servant was not his servant ; but it has been clearly proved by the witnesses on the part of the defendant, that the carriage was the defendant's, and that the person driving it was his servant. But in addition to these he has pleaded, thirdl}', that the horse and carriage at the time of the injury were not in the emplo}' of the defend- ant, but were improperl}' used b}' the servant for purposes of his own ; and evidence has been given that the master directed the servant to drive to the Red Lion, in Castle Street, Leicester Square, but that the servant improperly drove to the Old Street Road, to deliver a parcel of his own ; and the point has been put to the court, that inasmuch as it is clear that the servant was not at that time engaged in his master's business, this action cannot be maintained. But I am of opinion that this action may be maintained. I think the law has been most properly laid down by Mr. Baron Parke, in the case which has been cited. It is SECT. II.] QUARMAN V. BURNETT. 125 quite clear that, if a servant without his master's knowledge takes his master's carriage out of the coach-house, and with it commits an injury, the master is not answerable ; and on this ground, that the master has not entrusted tlie servant with the carriage. But whenever the master has entrusted the servant with the control of the carriage, it is no answer that the servant acted improperh' in the management of it. If it were, it might be contended that if a master directs his servant to drive slowly, and tlie servant disobeys his orders, and drives fast, and through his negligence occasions an injury, the master will not be liable. But that is not the law : the master in such a case will be liable, and the ground is, that he has put it in the servant's power to mismanage the carriage, by entrusting him with it. And in this case, I am of opinion that the servant was acting in the course of his emplo}-- ment, and till he had deposited the carriage in the Red Lion Stables, in Castle Street, in Leicester Square, the defendant was lial)le for any injury which might be committed through his negligence. After read- ing the evidence and observing on the question of negligence, His Lordship left the case to the jury, who found a Verdict for the plaintiff — damages, £25. TFi7(7e, Serjt., and Ghannell^ for the plaintiflf. Slade, for the defendant. QUARMAN V. BURNETT. Exchequer. 1840. [6 M. cj- W. 499 ] Case. The declaration stated, that the plaintiff, on the 21st December, 1838, was possessed of a carriage, to wit, a chaise of great value, &c., and of a horse then drawing the same, in which said carriage the plaintiff was then riding : and that the defendants were also possessed of a carriage, to wit, a chariot, to which said car- riage of the defendants were harnessed two horses, and which said carriage and horses loere then under the care of the defendants. Nevertheless the defendants so carelessh' &c. conducted themselves in the premises, that by and through the mere carelessness, negligence, want of proper caution, and improper conduct of the defendants in that behalf, the said horses so harnessed to the carriage of the defendants started off with the said carriage, without a driver or other person to manage, govern, or direct the same, whereby the said carriage of the defendants then ran and struck with great force against the said carriage of the plaintiff, and thereby' greatly crushed and injured the same, and the plaintiff was thrown with great force and violence out of his carriage upon the ground, c&c, &c. Pleas, first, not guilt}' ; secondly, that the said carriage and horses in 126 QUARMAN V. BURNETT. [CHAP. IL the declaration mentioned, or either of them, were not under the care of the defendants, or either of them, in manner and form, &c. ; upon which issues were joined. At the trial before Maule, B., at the Middlesex Sittings in last Michaelmas Term, the following appeared to be the matei-ial facts of the case : — The defendants are elderly ladies resident in Moore Place, Lambeth, keeping a carriage of their own, but hiring horses and a coachman from a job-mistress of the name of Mortlock. They generally had the same horses, and always the same coachman, a man of the name of Kemp (the only regular coachman in Miss Mortlock's employ), to whom the}' paid 2s. for each drive, having told him when they first set up their own carriage, three years ago, that the}' would pay him that sum. He received regular weekl}' wages from Miss Mortlock. The defendants sometimes took the coachman and horses into the country for several weeks, when the}' paid him a certain sura per week. They had a plain coachman's coat and a liver}' hat, for which Kemp was measured, and which he wore when driving the defendants, and took off on his return to their house, where the coat and hat were hung up in the passage. On the 21st December, 1838, he went into the defend- ants' bouse to pull off the hat (he did not wear the coat that day, having his own box coat on), and left no one in the charge of the horses : they started off, ran against the plaintiff's chaise, which was drawn up on the side of the footpath, threw him out, and seriously injured him, and damaged the chaise. This being the state of facts, it was contended for the defendants that Kemp was, under the circumstances, the servant not of the de- fendants, but of the job-mistress, and that the defendants were not responsible. The following cases were referred to : Laugher v. Pointer, 5 B. & C. 547 ; Smith v. Lawrence, 2 Man. & R. I. ; Brady v. Giles, 1 M. & Rob. 494; Fenton i-. Dublin Steam Packet Co., 8 Ad. & i:. 835; 1 P. «fe D. 103; Randleson v. Murray, 8 Ad. & E. 109 ; 3 N. & P. 239. The learned Judge thought there was evidence to go to the jury, but gave the defendants' counsel leave to move to enter a nonsuit: it appearing to him that there was some evidence that the carriage was under the defendants' care, both in respect of their choosing this particular coachman, and also in respect of his having gone to put back their hat, and left the carriage unattended to. And he told the jury that if the coachman was, at the time the horses ran away, acting as the servant of the defendants, they were liable : and that he thought he was acting as such servant, if the job-mistress appointed him specially at the defendants' desire, or if in putting back his hat he acted for the defendants. The jury found a verdict for the plaintiff, damages 198Z. 9.s. Kelly having obtained a rule nisi for entering a nonsuit, pursuant to the leave reserved, Thomas (Sir F. Pollock with him) showed cause. Channell, Serjt. (Kelly with him), in support of the rule. SECT. II.] QUARMAN V. BURNETT. 127 Parke, B.^ On tlie argument, in the course of which the principal authorities were referred to, we intimated our opinion that we should be called upon to decide the point which arose in the case of Laugher V. Pointer, and upon which not only the Court of King's Bench, but the twelve Judges differed ; as the special circumstances above mentioned did not seem to us to make any difference ; and we are still of opinion that they did not. It is undoubtedly true that there may be special circumstances wiiich may render the hirer of job-horses and servants responsible for the neglect of a servant, though not liable by virtue of the general relation of master and servant. He may become so by his own conduct, as by taking the actual management of the horses, or ordering the servant to drive in a particular manner, which o(?casions the damage complained of, or to absent himself at one particular mo- ment, and the like. As to the supposed choice of a particular servant, ray Brother Maule thought there was some evidence to go to the jury, of the horses being under the defendants' care, in respect of their choos- ing this particular coachman. We feel a difliculty in saying that there was any evidence of choice, for the servant was the only regular coach- man of the job-mistress's yard ; when he was not at home, the defend- ants had occasionall}' been driven hy another man, and it did not appear that at any time since the3' had their own carriage, the regular coachman was engaged, and they had refused to be driven by another ; and the circumstance of their having a liver}', for which he was meas- ured, is at once explained b}' the fact, that he was the only servant of Miss Mortlock ever likel}- to drive them. Without, however, pro- nouncing any opinion upon a point of so much nicety, and so little defined, as the question whether there is some evidence to go to a jury, of an}' fact, it seems to us that if the defendants had asked for this particular servant, amongst many, and refused to be driven by anj- other, the}' would not have been responsible for his acts and neglects. If the driver be the servant of a job-master, we do not think he ceases to be so by reason of the owner of the carriage preferring to be driven by that par- ticular servant, where there is a choice amongst more, any more than a hack post-boy ceases to be the servant of an innkeeper, where a travel- ler has a particular preference of one over the rest, on account of his sobriety and carefulness. If, indeed, the defendants had insisted upon the horses being driven, not by one of the regular servants, but by a stranger to the job-master, appointed by themselves, it would have made all the difference. Nor do we think that there is any distinction in this case, occasioned by the fact that the coachman went into the house to leave his hat, and might therefore be considered as acting by their directions, and in their service. There is no evidence of any special order in this case, or of any general order to do so, at all times, without leaving any one at the horses' heads. If there had been any evidence of that kind, the defendants might have been well consid- * After stating the case. — Ed. 128 QUAEMAN V. BURNETT. [CHAP. n. ered as having taken the care of the horses upon themselves in the meanlinie. Besides tliese two circumstances, the fact of the coachman wearing the defendants' livery, witli their consent, whereby they were the means of inducing third persons to believe that he was their servant, was mentioned in the course of the argument as a ground of liability, but cannot affect our decision. If the defendants had told the plaintiff that lie might sell goods to their livery servant, and had induced liim to contract with the coachman, on the footing of his realh' being such servant, the}' w'onld have been liable on such contract: but this repre- sentation can only conclude the defendants with respect to those who have altered tlieir condition on the faith of its being true. In the present case, it is matter of evidence only of the man being their servant, which the fact at once answers. We are therefore compelled to decide upon tlie question left unsettled b}' the case of Laugher v. Pointer, in which the able judgments on both sides have, as is observed by Mr. Justice Story in his Booiv on Agenc}', page 406, "exhausted the whole learning of the subject, and should on that account attentiveh' be studied." We have considered them full}', and we think the weight of authority, and legal principle, is in favour of the view taken by Lord Tenterden and Mr. Justice Llttledale. The immediate cause of the injury is the personal neglect of the coachman, in leaving the horses, which were at the time in his imme- diate care. Tlie question of law is, whether any one but the coachman is liable to the party injured ; for the coachman certainly is. Upon the principle that qui facit per alium facit per se, the master is responsible for the acts of his servant; and that person is undoubtedly liable who stood in tiie relation of master to the wrong-doer — he who had selected hira as his servant, from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey ; and whether such servant has been ap[)ointed by the master directly, or intermediately through the intervention of an agent authorized by him to appoint servants for him, can make no difference. But the liability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist: and no other person than the master of such servant can be liable, on the simple ground that the servant is the servant of another, and his act the act of another ; consequently, a third person entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable ; and to make such person liable, recourse must be had to a different and more extended principle, namely that a person is liable not only for the acts of liis own servant, but for any in- jury which arises by the act of another person, in carrying into execution that which that other person has contracted to do for his benefit. That, however, is too large a position, as Lord Chief Justice Eyre says in the SECT. II.] MARTIN V. TEMPERLEY. 129 case of Bush v. Steinman, 1 Bos. & P. 404, and cannot be maintained to its full extent without overturning some decisions, and producing conse- quences which would, as Lord Tenterden observes, " shock the common sense of all men ; " not merely would the hirer of a post-chaise, hackney- coach, or wherry on the Thames, be liable for the acts of the owners of those vehicles, if the^" had the management of them, or their servants, if the}' were managed b}- servants, but the purchaser of an article at a shop, which he had ordered the shopman to bring home for him, might be made responsilde for an injur}' committed by the shopman's carelessness, whilst passing along the street. It is true that there are cases — for instance, that of Bush v. Steinman, Slj' v. Edgley, 6 Esp. 6, and others, and per- haps amongst them may be classed the recent case of Randleson v. Murray — in which the occupiers of land or buildings have been held responsible for acts of others than their servants, done upon, or near, or in respect of their property. But these cases are well distinguished by my Brother Littledale in his \evy able judgment in Laugher v. Pointer. . . . It is unnecessary to repeat at length the reasons given b}- m}' Brother Littledale for this distinction, which a[)pear to us to be quite satisfac- tory ; and the general proposition referred to, upon which only can the defendants be liable for the acts of persons who are not their servants, seems to us to be untenable. We are therefore of opinion that the de- fendants were not liable in this case, and the rule must be made abso- lute to enter a verdict for the defendants on the second issue. Hule absolute. MARTIN V. TEMPERLEY. Queen's Bench. 1843. [4 Q. B. 298.] The declaration stated that, whereas plaintiff, on etc., before and at the time of the grievance hereinafter mentioned, was lawfully pos- sessed of a certain boat of great value, to wit, etc., then lawfully being in the River ThaiTies ; and defendant was also then possessed of two barges in the same river, and then had the care, direction and manage- ment of the same ; yet defendant, not regarding his duty in that behalf, whilst the said boat of plaintiff so was in the River Thames aforesaid, to wit on etc., took so little and such bad care of, and so carelessly, negligently and improperly managed, governed and directed his said barges, that one of them, by and through the carelessness, misdirection and mismanagement, negligence and improper conduct of defendant and his servants in that behalf, then with great force and violence ran foul of and struck against the said boat or vessel of plaintiff, and thereby then greatly broke, damaged and injured the same ; and by 9 130 MARTIN V. TEMPEKLEY. [CHAP. II. means of the premises the said boat of phiiiitiff then became and was filled with water, and sunk in the said river ; and thereby- divers goods and chattels, to wit etc. (special damage from tlie loss of goods on board, expense of repairs and deprivation of the use of the vessel, and other expenses in respect of goods on board, and of the vessel). Pleas. 1. Not guilty. 2. That defendant had not, at the time of the committing, etc., the care, direction, or management of the two vessels or barges, or either of them ; conclusion to the country. Issue thereon. On the trial, before Lord Denman, C. J., at the London sittings after Hilar}' term, 1842, it appeared that the defendant had hired by the year two barges mentioned in the declaration from one Covington, who was the owner of the barges and a freeman of the Company of Watermen and Lightermen, incorporated by Stat. 7 & 8 G. 4, c. 75, § 4, that it was usual to hire barges in this manner ; and that the barges so hired were entirely under the control of the persons hiring them. The accident occurred within the limits named in the title of the act, and was occasioned by the two barges, which at the time were lashed to- gether, coming into collision with the plaintiff's boat. The barges were at that time under the management of two men named Wickings and Martin. Martin was a freeman of the Company' of Watermen and Lightermen, and AVickings was an apprentice to his own brother, Joseph Richard Wickings. J. R. Wickings was a freeman of the com- pan\', and foreman to the defendant ; he was paid b}' the defendant weekly ; and he had let out himself and his apprentice by the week. He hired Martin for the particular job, and was also paid bj' the de- fendant for what Wickings the apprentice did, by the job. The de- fendant's counsel contended that the defendant was not liable for the damage, inasmuch as he was bound to emplo}' onh' persons authorized to navigate, under Stat. 7 & 8 G. 4. c. 75, § 37. A copy of the by-laws, made under § 57 of the statute, was put in ; by the 25th of which it was ordained that, during all the time that an}' barge, &c., should be navi- gating or passing along the river within the limits, one able and skilful man, authorized by law, should be constantly on board the same, for the navigation and management thereof; and, if the owner or owners of an}' such barge, «Scc., should permit or suffer the same to pass along any part of the limits aforesaid without having at least one such able or skilful man or other person, authorized as aforesaid, to navigate the same, he or they, or any of them, should forfeit for every such offence 40s. ; and, if the person or persons on board should quit or leave the barge, &c., at any time during the navigation or passage through the limits, he or they should forfeit and pay for every such offence 40s. ; and it should be lawful for any harbor-master and his assistants to remove the said barge, &c. ; and the charges and expenses thereof respec- tively should be paid by the owner or owners or master thereof. It appeared that there were about six thousand freemen and apprentices. The jury being of opinion that negligence was proved, the Lord Chief SECT. II.] MARTIN V. TEMPERLEY. 131 Justice directed a verdict for the plaintiff, giving leave to move for a nonsuit, or a verdict for the defendant on the second plea. In Easter term, 1842, Richards obtained a rule nisi for a nonsuit or verdict for defendant, or for a new trial. Thesiger and Bovill now showed cause. R. V. Michards and Peacock, contra. Lord Denman, C. J. It is quite clear that the defendant is the party liable. In the first place, every man is liable for the misconduct of his servants ; and, in the second, the men here undoubtedly were the ser» vants of the defendant ; and men so employed are even called servants in Stat. 7 & 8 G. 4. c. 75, § 102. But a question is made, whether the limitation of the defendant's power of choice deprived the party injured of the remedy against him. I cannot think it can be reasonably con- tended that it does : the inconvenience would be enormous. Mr. Bo- vill's argument on the statute respecting apprentices bears very strongly on the point. Before the repeal on that statute, persons could not be cmplo3ed in trades without having been apprenticed ; the selection therefore was limited just as much as here. Sect. 89, of Stat. 7 & 8 G. 4. c. 75 makes an unskilful navigator liable, to the amount of £5, for the mischief he ma}' do ; but he is not touched in this respect by any other provision of the act. The decision of Dr. Lushington in The Maria, 1 W. Rob. Adm. R. 95, cannot be applied to this case. Dr. Lushington must be understood as assuming that the master was there bound to take the first licensed pilot who offered himself He clearly considers that, under § 6 of the Newcastle Pilot Act, 41 G. 3. (U. K.) c. 86, the master of the ship, being foreign, was bound to take the pilot on board, without any power of selection ; and indeed in the case of a foreign vessel in a strange port there could seldom be anj' ground for preferring one pilot to another, and therefore little practical power of selection, even if two or three offered themselves at the same time. The rule of respondeat superior is not impeached : the onl}- question is who is the superior. Under Stat. C G. 4. c. 125, the authority of the master is absolutely superseded by that of the pilot. Milligan v. "Wedge, 12 A. & E. 737, has been fairly pressed upon us; but the distinction between that case and the present is clear. The drover there was pur- suing a separate trade : to dri-'e the bullocks was no part of the butch- er's business : he had only to select the licensed drover, who was the person that set in motion the servant whose negligent driving did the mischief ; and the owner of the bullock had no longer any control over it. In the present case it was otherwise ; and therefore our decision here is not inconsistent with that in Milligan v. Wedgo. Patteson, J. I am of the same opinion. The first question is, whether the relation of master and servant existed between the defend- ant and those managing his barges ; and next, if it did, whether there be anything in Stat. 7 «& 8 G. 4, c. 75 that prevents the legal conse- quences following from such a relation. On the part of the defend- ant it is argued, without reference to the statute, that this is the case 132 MAKTIN V. TEMPEKLEY. [CHAF. IL not of master and servant, but of an independent contract to perform the work, as in Milligan v. Wedge and Quarman v. Burnett, 6 M. & W. 499. But tliat is clearly erroneous. Independently of the act, the men navigating the barges would clearly be the defendant's servants. If the defendant, being at libert}' to employ whom he pleased, engaged persons to manage his barges on the Thames, I cannot see how it is possible to contend that thej' were not his servants as much as a man whom he might employ to drive his carriage. Where, indeed, a man hires another man's servant from him, though such servant be em- plo3'ed to drive w'here the person hiring pleases, it has been held in Quarman r. Burnett, that the servant so hired is not the servant of the person so hiring. That case certainly carried the exception a great way ; but there the servant hired was ordinarily in the employment of the person from whom he was hired, and who let horses along with the driver. That case is not like the present. The second question, then, is as to the effect of Stat. 7 & 8 G. 4. c. 75. That indeed confined the defendant to employing as his servants onl}" individuals of a particular class. It narrowed the number of persons from whom he could select. But that is very different from the state of things created b}' the Pilot Act, where a party must take the first pilot who offers himself. Here the defendant had the power of selection, though from a limited num- ber, and no case has gone so far as to decide that the person hired ceases to be the servant of the person hiring if he is necessarily se- lected from a number, though limited. I was much struck with the argument deduced from the old Statute of Apprenticeship. According to the doctrine contended for on the part of the defendant, it would hardly have been possible, while that act was in force, to employ a man as a servant. I do not» put the case on the largeness of the number from which the selection may here be made ; the principle seems to me the same whether the number be five hundred or five thousand. If there be a power of selection, and not, as in the Pilot Act, a provision preventing an}' choice, the person hired is the servant of the person hiring. At first I felt the diflncult}- raised I)v Lucey v. Ingram, 6 M. & W. 302. That case, however, was decided on the words of the Pilot Act, 6 G. 4. c. 125. It is true that the defendant there came within the exemption of § 63 of the Act, and was not obliged to take a pilot. But the pilot, under § 72, was compelled to act when called upon ; and the court rested their decision on the precise words of § 55, which "exempts the owner from responsibility in respect of accidents hap- pening by reason of the default of any pilot, acting under or in pursu- ance of the provisions of the Act" (6 M. & W. 316) ; and they held that the pilot was so acting, whether the owner was compelled to em- plo}' him or not. And thev conclude as follows. " The case before us is clearly within the words of the exempting clause ; and we must therefore hold it to be within its spirit and meaning, unless (which is not the case) some manifest inconvenience or inconsistency should result from our so doing." The decision, so explained, is inapplicable to the present question. SECT. II.] MARTIN V. TEMPERLEY, 133 Coleridge, J. Though this case has been argued at some leugth and with much ingenuity, the point is not difficult. Tlie question is, were the defendant and the persons emplo3ed by him master and servants? If they were, the general i)rinci[jle applies. And the tests leave no doubt that they were. First, the men were selected bj' the de- fendant ; secondly, they were paid by him ; thirdly, they were doing his work ; fourthly, they were under his control, that is, in doing the work in the ordinary wa}-. It is said that a difference arises where the workman is paid so much for doing the whole job. But the defendant might pay either for a given time or a given work ; and the men here were as much under the defendant's control as a gentleman's coachman is under that of his master. The master cannot order the coachman to do an illegal act, as to drive furioush', or on the wrong side. But, sub- ject to that, the master has the control over the coachman. So here the defendant had the control over tiie persons navigating the barge, subject to the rules of the river. The}- are, principally, selected by him. Suppose the owner of a barge, seeing a number of watermen on the side of the river, chose to hire one who was incompetent, would not he have made the selection? Then, if the men here were the defend- ant's servants, on what grounds is the defence put? On two only. First, that the defendant was bound to select from a particular class ; secondly, that he was not allowed to do the work for himself. But neither of these grounds is sufficient. As to the first, it is true that the defendant w^as bound to select from a class ; and so we all practicalh' are limited by the necessit}' of choosing persons of skill and fitness ; but, if we can choose from a class, whether large or small, our contract places us in the situation of a party responsible for the acts of those whom he does choose. And, as to the defendant not being able to do the work for himself, the law, for the public safet}', imposes a qualification, and makes the apprenticeship a test of fitness. Though the defendant was obliged to employ one qualified person, he still made those whom he did employ his servants by the contract. Both grounds of defence therefore fail. Mule dUcharged. 134 KEEDIE V. LONDON AND NORTH WESTERN RY. CO. [CHAP. IL REEDIE V. LONDON AND NORTH WESTERN RAILWAY COMPANY. HOBBIT V. LONDON AND NORTH WESTERN RAILWAY COMPANY. Exchequer. 1849. [4 Exch. 244.] This was an action by the widow and administratrix of a person who was killed while passing under a viaduct in course of construction, as part of a railway from Leeds to Dewsbury. The action was brought to recover compensation, for the benefit of herself and her children under the provisions of the 9 «& 10 Vict. c. 93. The declaration stated that the defendants were possessed of a viaduct over the Gomersall and Dewsbury turnpike-road, such viaduct being part of a railway then in course of construction between Dewsbury' and Leeds ; yet the defendants conducted themselves in making the said archway over the said turnpike road so negligently that, by reason thereof, a large stone, parcel of the materials used in the construction of the said arch- way, fell on the plaintiffs husband as he was passing along the road, whereby he was killed. The pleas were first, not guilty ; secondly, that the defendants were not making the said archwaj' in manner and form, &c. Upon which pleas issues were joined. At the trial, before Cresswell, J., at the last York Summer Assizes, the material facts proved were as follows : On the 30th of June, 1845, an Act of Parliament, intituled "The Leeds, Dewsbury, and Manchester Railway- Act, 1845," received the Royal assent. B}' the provisions of that Act, a compan}' was incorpor- ated in the usual wa}", for the purpose, among other objects, of forming the railway in question. By an indenture, dated the 29th of Septem- ber, 1846, made between the company of the one part, and Joseph Crawshaw and Richard Crawshaw of the other part, the Messrs. Craw- shaw covenanted with the company that the}' would, in consideration of a sum of £55,000, to be paid as therein mentioned, make and com- plete a portion of the railway described in the indenture, of the length of 3830 yards, or thereabouts, with all excavations, embankments, bridges, tunnels, viaducts, roads, fences, and other works connected therewith, according to the specification referred to. Amongst other stipulations in the deed, it was provided that the works were to be done b}' the contractors ; but the company had a general right of watch- ing the progress, and, if the contractors employed incompetent work- men, the compan}' had the power of dismissing them. Under this contract, Messrs. Crawshaw proceeded to execute tlie works, and, while they were in progress, viz. on the 9th July, 1847, another Act Sf:CT. II.] REEDIE V. LONDON AND NORTH WESTERN RY. CO. 135 received the Royal assent, wherein' it was enacted, that the said Leeds, DewshiiiT, and Manciiesler Railway*, with all and singular tlie under- takings thereof, as well those which had been commenced as those which had not, and all the real and personal estate of the said com- pany, should (subject to the existing debts, liabilities, and contracts of the same company) be vested in the London and Nortli Western Rail- way Company, and might be lawfull}- executed, completed, held, and enjoyed by them, in the same way as they might have been ex- ecuted, completed, held, and enjoyed b^- the said Leeds, Dewsbur}', and Manchester Company if that Act had not passed. After the pass- ing of tliis second Act, Messrs. Crawshaw continued to proceed with their work, and in the course of it, by the negligence of some of the contractor's workmen, a heav}' stone fell from a travelling truck upon the plaintiffs husband, who was passing along the road underneath, and occasioned his death. Upon these facts, a verdict was found for the plaintiff, leave being reserved for the defendants to move to enter a nonsuit, if the court should be of opinion that the action would not lie. A rule nisi having been obtained accordingh', against this rule, in Hilary Vacation last (February 13 and 14), cause was shown by 3Ia)'tin, Pickering, and //. Hill. Knowles, and Hall, in support of the rule. Cur adv. vult. The judgment of the court in the preceding cases was now given by RoLFE, B. (His Lordship after stating the pleadings and facts in Reedie v. The North Western Railway Company, as above set forth, proceeded): — It appears to us quite clear, that after the passing of the second act, the contract with Messrs. Crawshaw was transferred to the present defendants, so as to make them liable to the same extent precisely, as the original Leeds, Dewsbur}-, and Manchester Company would have been liable, if the second act had not passed. But, after full consideration of the subject, we are of opinion that neither the defendants nor the original company are liable. In the case of Quarman v. Burnett, this court decided (adopting the opinion of Lord Tenterden and Mr. Justice Littledale, in Laugher v. Pointer), that the liability to make compensation for an injury arising from the neglect of a person driving a carriage, attaches onlj- on the driver, or on the person employing him. The liability of any one, other than the party actually guilty of any wrongful act, proceeds on the maxim, " Qui facit per alium facit per se." The party employing has the selection of the party employed, and it is reasonable that he who has made choice of an unskilful or careless person to execute his orders, should be responsible for any injury resulting from the want of skill or want of care of the person employed ; but neither the principle of the rule, nor the rule itself, can apply to a case where the party sought to be charged does not stand in the character of employer to the party by whose negligent act the injury has been occa«ione4- 136 REEDIE V. LONDON AND NORTH WESTERN RY. CO. [CHAP. IL The doctrine of Quarman v. Burnett has since been acted on in this court, in the ease of Rapson v. Cubitt, and in the court of Queen's Bench, in Milligan y. Wedge, and again in Allen v. Hayward. By these authorities we must consider the law to have been settled ; and the only question is, whether the law, so settled, is applicable to the facts of this case. To show it was not, it was argued b}- the counsel for the plaintiff, that there is a recognized distinction on this subject between injuries arising from the careless or unskilful management of an animal, or other personal chattel, and an injury resulting from the negligent management of fixed real property. In the latter case, it was con- tended, the owner is responsible for all injuries to passers-b}' or others, howsoever they ma}' have been occasioned ; and here it was said the defendants were, at the time of the accident, the owners of the railway, and so are the parties responsible. This distinction as to fixed real property is adverted to by Mr. Jus- tice Littledale, in his very able judgment in Laugher v. Pointer, 5 B. & C, at pages 559 and 560 ; and it is also noticed in the judgment of this court, in Quarman v. Burnett. But in neither of these cases was it necessar}' to decide whether such a distinction did or did not exist. The case of Bush v. Steinman, where the owner of a house wa.s held liable for the act of a servant of a sub-contractor, acting under a builder employed by the owner, was a case of fixed real property. That case was strongl}- pressed in argument in support of the liabilit}- of the defendants, both in Laugher v. Pointer and Quarman v. Burnett; and as the circumstances of those two cases were such as not to make it necessary' to overrule Bush xk Steinman, if any distinction in point of law did exist, in cases like the present, between fixed property and ordinary movable chattels, it was right to notice the point. But, on full consideration, we have come to the conclusion, that there is no such distinction, unless, perhaps, in cases where the act complained of is such as to amount to a nuisance ; and in fact, that, according to the modern decision, Bush v. Steinman must be taken not to be law, or, at all events, that it cannot be supported on the ground on which the judgment of the court proceeded. It is not necessary to decide whether, in any case, the owner of real property, such as land or houses, ma}' be responsible for nuisances occasioned b}' the mode in which his property is used by others not standing in the relation of servants to him, or part of his family. It may be that in some cases he is so responsible. But then his liability must be founded on the principle that he has not taken due care to prevent the doing of acts which it was his dut}' to prevent, whether done by his servants or others. If, for instance, a person occupyijig a house or a field should permit another to carry on there a noxious trade, so as to be a nuisance to his neighbors, it may be that he would be responsible, though the acts complained of were neither his acts nor the acts of his servants. He would have violated the rule of law, " Sic SECT. II.] REEDIE V. LONDON AND NORTH WESTERN RY. CO. 137 utere tuo ut alienum iion licdas." This is referred to by Mr. Justice Cresswell, in delivering the judgment of the Court of Common Bench, in Rich V. Basterfield, 4 C. 1>. iJep. 802, as the principle on which parties possessed of fixed property' are responsible for acts of nuisance occasioned by the mode in which the property is enjoyed. And, possibly, on some such principle as this, the case of Bush v. Steinman may be supported. But certainly that doctrine cannot be applied to the case now before us. The wrongful act here could not in any possible sense be treated as a nuisance. It was one single act of negligence ; and, in such a case, there is no principle for taking any distinction b}' reason of the negligence having arisen in reference to real and not to personal property. If the defendants had employed a contractor, carrying on an inde- pendent business, to repair their engines or carriages, and the con- tractor's workmen had negligently caused a heavy piece of iron to fall on a b3"stander, it would appear a strange doctrine to hold that the defendants were responsible. Mr. Justii/les, Serjt., now showed cause. Shee^ Serjt., Peter sdoi-ff, and Garth (In support of the rule). Jervis, C. J. I am of opinion that the rule should be discharged.* , . . The declaration alleges that, on a certain da}', the defendants were possessed of a certain cart and horse, which was being driven (not stating it to be so being driven at the time of the accident) by and under the care and direction of the defendants' servant. If this alle- gation were traversed, it would be established by proof of any driving bv their servant at any time : it is therefore an immaterial allegation. Then, because they have not alread}- fixed the time, the plaintiffs do in some sort ascertain it in the charging part, — '' and that, whilst the plaintiff Dorothy was crossing a certain street in London, called Grafton Street, the defendants, by their said servant, so negligently and im- properly drove and directed the said cart and horse along the said street, that the said cart and horse ran against and struck the plaintiff Dorothy," etc. I think ^ not guilty" puts in issue whether at the time of the accident the driver of the cart was the servant of the defend- ants. That brings us to the principal point, whether, under the cir- cumstances disclosed by the evidence, the defendants are responsible for the injury which the plaintiffs have sustained. Each case must depend upon its own particular circumstances. No doubt a master may be liable for injury* done by his servant's negligence, where the servant, being about his master's business, makes a small deviation, or even where he so exceeds his duty as to justify his master in at once discharging him. But here it cannot be denied that, though it was the dutv of the carman, on his arrival with the horse and cart at Wel- beck Street, immediatel}- to take them to the stable, he, in violation of that dut}', and without the sanction or knowledge of his employers, in- stead of going to the stable, started on a new journe}^ whoU}' uncon- nected with his masters' business, — as my Brother Parke expresses it in Joel V. Morrison, " on a frolic of his own." I think, at all events, if the master is liable where the servant has deviated, it must be where the deviation occurs in a journey on which the servant has originally started on his master's business ; in other words, he must be in the employ of his master at the time of committing the grievance. I think that was not the case here, and therefore I think the defendants are not liable to this action. Maule, J. I am of the same opinion. . . . The facts were these : The defendants' carman, havmg finished his business, had nothing 1 The passages omitted from the opinions deal with pleading and procedure. — £flk SECT. II.] MITCHELL V. CRASSWELLEK. 147 further to do but to drive the horse to the stable. At the time ol the accident, he was not going a roundabout wa}- to the stable, or, as one of the cases express it, making a detour. He was not engaged in the business of his employers. But, in violation of his dut}, so far from doing what he was employed to do, he did something totally incon- sistent with his duty, a thing having no connexion whatever with his employers' service. The servant only is liable, and not the employers. All the cases are reconcilable with that. The master is liable even though the servant, in the performance of his duty, is guilty of a devia- tion or a failure to perform it in the strictest and most convenient manner. But, where the servant, instead of doing that which he is em- ployed to do, does something which he is not emploj'ed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of the servant in doing it. Ckessavell, J. I am of the same opinion. For the reasons given by my Lord and my Brother Maule, I think the defence was admissible under not guilt}'. ... As to the main point of the case, I agree, that, under the circumstances, the carman cannot be said to have been acting in the employ of the defendants at the time the injury complained of was done, so as to make them responsible in damages for his negligence. No doubt, if a servant, in executing the orders, express or implied, of his master, does it in a negligent, improper, and roundabout manner, the master ma}' be liable. But, here, the man was doing something which he knew to be contrar}- to his duty, and a violation of the trust reposed in him. The expression used by him at the time he started upon the unauthorized journey showed that he was aware that he was doing that which was inconsistent with his duty. I think it would be a great hardship upon the employers to hold them to be responsible under such circumstances. Williams, J. I am entii'ely of the same opinion : and I must say I should have been extremely sorry if any authorit}- could have been found which would compel us to hold that this man was, at the time of the accident which occurred through his breach of dut}' and his negli- gence, acting in the emplov of the defendants. If the allegation that the defendants were possessed of the cart and horse which was being driven by their servant, had pointed to the particular time of the com- mitting of the injury, the defendants might have traversed the induce- ment. But, here, the introductorv averment is so framed as not to involve the question whether at the time of the accident the cart and horse were under the care and management of the defendants bj- theit servant. . . . Hule discharged.^ 1 Ace: Stone v. Hills, 45 Conn. 44 (1877). Compare Quinn v. Power, 87 N Y 535(1882). — Ed. 148 ELLIS V. SHEFFIELD GAS CONSUMERS CO. [CHAP. IL ELLIS V. SHEFFIELD GAS CONSUMERS CO. Queen's Bench. 1853- [2 E. St' B. 767.] - Count for unlawfully digging a trench in a public street and high- way, and heaping up stones and earth, excavated from the said trench, upon the said street and liighway, so as to obstruct it, and to be a com- mon public nuisance ; whereby plaintiff, lawfully passing along the said public street and highway, fell over the ;^aid stones and earth, so heaped up as aforesaid, and broke her arm. Plea: Not guilty*. Issue thereon. On the trial, before Wigiitman, J., at the last York Assizes, it ap- peared that the defendants had made a contract with persons trading under the firm of Watson, Brothers, of Sheffield, by which Watson, Brothers, contracted to open trenches along the streets of Sheffield in order that the defendants might lay gas pipes there, and afterwards to fill up the trenches and make good the surface and flagging. Watson, Brothers, did accordingly, b}' their servants, open the trenches along one of the streets in question, and, after the pipes were laid, proceeded to fill up the trench and restore the flagging. In doing so, the servants of Watson, Brothers, carelessly left a heap of stones and earth upon the footway ; and the plaintiff, passing along the street, fell over them and broke her arm. Neither the defendants nor Watson, Brothers, had any legal excuse for breaking open the street in the manner described, which was a public nuisance. It was objected, for the defendants, that the cause of the accident was the negligence of the servants of the con- tractors, Watson, Brothers, for which the defendants were not respon- sible. It was answered that the contract was to do an illegal act, viz. to commit a nuisance ; and, that being so, that the defendants were responsible. The learned Judge directed a verdict for the plaintiff, with leave to move to enter a verdict for the defendants. T. Jones now moved accordingly-. Lord Campbell, C. J. I am of opinion that there should be no rule in this case. Mr. Jones argues for a proposition absoluteh' untenable, namely, that in no case can a man be responsible for the act of a per- son with whom he has made a contract. I am clearly of opinion that, if the contractor does the thing which he is emplo3'ed to do, the em- ployer is responsible for that thing as if he did it himself. I perfectly approve of the cases which have been cited. In those cases the con- tractor was employed to do a thing perfectly lawful : the relation of master and servant did not subsist between the employer and those actually doing the work : and therefore the employer was not liable for their negligence. He was not answerable for anything beyond what he employed the contractor to do, and, that being lawful, he was not liable at all. But in the present case the defendants had no right to break 8ECT. II.] HILL V. MOKEY. 149 up the streets at all ; they employed Watson, Brothers, to break up the streets, and in so doing to heap up earth and stones so as to be a public nuisance : and it was in consequence of this being done by their orders that the phiinlirt' sustained damage. It would be monstrous if the party causing another to do a thing were exempted from liability for that act, merely because there was a contract between him and the person imme- diately causing the act to be done. CoLKKiixn:, J., concurred. WiGHTMAN, J. It seems to me, as it did at the trial, that the fact of the defendants having employed the contractors to do a tlung illegal in itself made a distinction between this and the cases which have been cited. But for the direction to break up the streets, the accident could not have happened: and, though it may be that if the woikmen em- ployed had been careful in the way in which they heaped up the earth and stones the plaintitl" would have avoided them, still I think the nui- sance which the defendants employed the contractors to commit was the primary" cause of the accident. EiiLE, J. I agree that there should be no rule, on this specific ground that, as I understand the facts, the cause of the accident was the very thing done in pursuance of the specific directions of the defendants contained in their contract ; and that in ra^' opinion makes the distinc- tion between the present case, and those cited, in which the cause of the accident was the negligence of those doing the thing, not the thing itself. Jiule refused. HILL V. MOREY. Supreme Court of Vermont. 1854. [26 T7. 178.] This was an action of trespass founded on the statute entitled, "An act more effectually to prevent trespass in certain cases," passed in 1849. Plea not guilty-, and trial by jury. After the jury were em- panelled, the defendant made a motion, in writing, that the cause be dismissed, on the ground, " that the plaintiff, when he prayed out his writ, did not cause a true minute of the day, month, and year when said writ was signed, or any minute whatever to be made on said writ." The court decided, that if such certificate was necessary, the defendant was too late in making his motion ; and overruled the same. It appeared on trial, that the plaintiff and defendant were adjoining landowners, the plaintiff owning upon the east, and the defendant upon the west ; and that originally, the line between them was marked upon the land, and corners made at the north and south ends of the line ; but the marked trees towards the north part of the line had been mostly cut down, and the fence (a brush fence) was not on the line, some parts 150 HILL V. MOREY. [CHAP. II. being on the one side and some on the other. That tile parties went upon the ground for the purpose of ascertaining where the line was, and of dividing and repairing the fence between them ; and that one Sturdevant was also there at the time. They went to the north part of the line where the marked trees were gone, and where the trespass was said to have been committed, and the plaintiff went to a certain point in tlie woods, either at or near the north end of the line, and told the defendant, who was some fifteen rods distant, that it was the corner. AVhether the plaintiff went to the true corner or not, did not distinctW appear ; the testimony of the plaintiff tending to show that he did go to the true corner ; and tlie testimony of defendant tending to show that he did not, but that plaintiff was a short distance east of it. The parties made, at this time, a division of their fence, the defendant taking the said north part for his share of the fence ; and he then began to repair the brush fence. The defendant also offered testimon}- tending to show, that the said Sturdevant, who was a neighbor, and happened to be present, without any request from the defendant, began to assist the defendant in repairing the said brush fench. That in so doing, said Sturdevant cut a few small trees and poles east of the division fence and east of the line between plaintiff and defendant ; and this cutting bj' said Sturdevant, was the trespass complained of. It also appeared from defendant's testimon}', that at the time said Sturdevant began to cut, the defendant told him, that he must be careful and not cut over the line. The line, a portion of the way, was in dispute on the trial. It appeared that the defendant in repairing the fence, went on the west side, and said Sturdevant on the east side, and in this wa}' passed over the whole of that part of the division, which defendant was to repair, each cutting on his side of the fence small trees and poles, and putting the same on the fence, and thus repairing it. The defendant claimed, and so said Sturdevant testified, that Sturdevant in what he did, in cutting and repairing the fence, was a mere volunteer, and that he did not act at the request of the defendant, and that he was not in the emplo}' of the defendant. The defendant therefore claimed that he was not liable for Sturdevant's act ; and that as he requested Sturdevant not to cut over the line on plaintiff's land, Sturdevant in so doing, acted against the wishes and without the authorit}' of defendant, and that no assent could be inferred or implied from the defendant's presence and knowledge of the acts being done. Defendant also claimed, that if the jury found that the plaintiff, when he pointed out the north corner, pointed it out as further east than the true corner, it amounted to a license ; and that if defendant or Sturdevant did not cut further east than the line would have been, assuming the corner thus pointed out by plaintiff to be the true corner, it amounted to a license, and that defendant would not be liable. Plaintiff's testimony tended to prove, that he, the plaintiff, told them before they began to mend said fence, not to cut on his side of the fence. It also appeared, that, where said fence run it was wood land, but that the land east of the fence was enclosed with the plaintiff's cleared land, and occupied SECT. II.] HILL V. MOREY. 151 by plaintiff; and that the land west of said fence was enclosed with defendant's cleared land, and occupied by and in defendant's posses- sion. On the points above stated, and made by defendant, the court, — Peck, J., presiding, — charged the jury as follows : — That in order to entitle the plaintiff to recover, the jurj' must Gnd, that some cutting was done or trespass committed east of the division fence and east of the division line between the plaintiff's and defend- ant's land ; that for any cutting or trespass west of the true line, although east of the division fence, the plaintiff could not recover for want of title to the premises where such trespass was committed ; and that for any cutting done or trespass committed east of the true line, if west of the division fence, the plaintiff could not recover, for want of possession, and b}- reason of the defendant being in possession of the land west of and up to the division fence ; but for any cutting done, or trespass committed by defendant, which was both east of the divi- sion fence, and east of the division line between plaintiff and defend- ant, if done on plaintiff's land, or land in plaintiff's possession, the defendant would be liable. On the point made in relation to defend- ant's liability for the acts done by Sturdevant, the court charged the jury, that if Sturdevant was cutting for defendant's benefit and in his presence, and with his knowledge and consent, the act of Sturdevant wonld be the act of defendant, for which defendant would be liable, even if Sturdevant had not been employed by defendant, and defendant did not advise or direct such act to be done ; or if defendant knew at the time when Sturdevant was cutting and did not object, but assented to it, and it was an act beneficial to defendant, and done for defendant's benefit, the defendant would be liable for such act of Sturdevant ; and that the question, whether what was done b}- Sturdevant was done by the consent of defendant or not, was a question of fact for the jury to find ; and that they might or might not find such consent of the defendant, as they might think the evidence warranted ; that if they did not find such assent, or that the cutting or trespass by Sturde- vant, was not done b}^ defendant's assent, the defendant would not be liable for the acts of Sturdevant ; but if Sturdevant was cutting for defendant's benefit, and his acts were beneficial to defendant, and he was cutting by defendant's assent, even if defendant told him not to cut over the line on plaintiff's land, yet, if Sturdevant, b}' mistake, not knowing and not having the means of knowing where the line was, cut over the line on plaintiff's land and possession, such act of Sturdevant would be the act of defendant ; but if Sturdevant was cutting even with defendant's consent or direction, and knowingly' or wilfully with- out defendant's consent or direction cut over on plaintiff's land or possession, the defendant would not be liable for such act. In refer- ence to what was claimed, as to a license, the court told the jury, that even if they should find that plaintiff pointed out the corner further east than the true corner, and that defendant and Sturdevant did not either of them cut further east than the line would be, assum- ing the corner thus pointed out to be the true corner, if such evidence 152 SADLEE V. HENLOCK. [CHAP. IL had a tendency to prove a license, it would not be a defence under the general issue, that in order for defendant to avail himself of that evidence, as a license, it should have been pleaded ; but that such evidence was proper for the jury to consider and weigh, in reference to the question of fact, where the true line was, and in that point of view, it had a tendency to show that the true line was further east, than the line claimed by the plainlift" on trial. To the decision of the court overruling the motion to dismiss, and to the omission of the court to charge as requested, and to the charge as given, the defendant ex- cepted. The jury i-eturned a verdict for plaintiff. A. Burt and A. 0. Aldis for defendant. H. R. Brardsley for plaintift'. The opinion of the court was delivered by Redfield, C. J.^ The other objection depends a good deal upon the construction of the testimon}-. It is a small cause and seems to have been pretty thoroughly tried in the county court, and we have not been able to see very clearl}' any error in the trial. Sturdevant, although a volunteer, seems to have undertaken the office of a servant to the defendant pro hac vice, and to have been suffered to proceed in his service, without objection, or any other restriction, except to be careful not to cut trees standing upon the plaintiff's land ; but he did cut trees on the plaintiff's land, negligentl}', and for want of proper information, and upon every principle of the relation of master and servant, the defendant must be regarded as liable for the act. If one could always excuse himself from liability for the acts of his servant, by giving such instructions, the liability would be reduced to cases of express assent. And in the present case, the act being done, in the presence of the defendant and for his benefit, and he not dissenting, in any manner, must be regarded, as assenting. As the evidence stood, there could be no reasonable doubt of defendant's liability' for the acts of Sturde- vant, upon either of these grounds, and we think, the case was correclly submitted to the jury, upon both grounds. Judgment affirmed. SADLER y. HENLOCK. Queen's Bench. 1855. [4 E. .j- B. 570.] TgfK declaration alleged that, before and at the time &c., there was, and thence hitherto &c., a common and public highwa}', in «&;c., for all the liege &c. to go, return, " pass and repass, on foot and by and with horses and carriages, at all times of the year, at their free will and * Paragraphs as to procedure and license are omitted. — En. 8ECT. II.] SADLER V. HENLOCK. 153 pleasure : yet the defendant, well knowing the premises, heretofore, to wit on the 28th day of November in the year 1853, wrongfully and unjustly cut, dug and excavated a deep ditch or trench across the said highway, and partially filled and covered in the same with mud, dirt and other soft and loose materials, and thereby- rendered that portion of the said highway, across, over and along the said ditch or trench so cut, dug and excavated as aforesaid, soft, mirv, dangerous and unsafe to persons using and frequenting the said highway on hoiscback and otherwise. ]>}• means of which said several premises, afterwards, and while the said road remained and was in the said state and condition last aforesaid, and before the commencement of this suit, to wit on " &c., a horse of plaintiff, of great value &c., "which the plaintiff was then lawfully riding on and along the said highway, was thrown down by stepping in and upon the said portion of the road which was so rendered soft, miry, dangerous and unsafe as aforesaid : and thereby the knees of the said horse were broken, and the said horse was and is otherwise greatly injured and rendered of little or no use or value to the plaintiff, who was tliereby also then subjected to and incurred great expense," &c. Plea: Not guilty. Issue thereon. There were two other issues of fact not now material. On the trial, before Platt, B., at the last Yorkshire Assizes, it appeared that the defendant was the occupier of some land adjacent to the highway mentioned in the declaration. The land was drained by a drain which passed from the laud down under the highwaj-. The drain having become obstructed, and the water having accumulated on defendant's land, he (in consequence, as it appeared, of having been told by the parish surveyor that the Board of Health would require all drains to be cleansed out) directed a man named Pearson to cleanse out the drain. Pearson was not otherwise in the emplo3-ment of the defendant ; he was a common laborer who had originallj- made the drain. Pearson executed the work with his own hands, and charged the defendant five shillings for the job, which the defendant paid. The defendant was not shown to have interfered with the work, or to have seen th§ way in which it was executed, or to have given any specific directions. Pearson, in clearing out the drain, took up the part of the highway under which the drain passed. After completing the work, he replaced the soil of the highwa}', but iraperfecth", and with insufficient materials : and, in consequence, it gave way, as a horse belonging to the plaintiff, and on which plaintiff was riding at the time, was passing over it : and the horse, by falling into the hole thus made, was injured. The action was brought for this injur}'. The counsel for the defendant contended that, under these circum- stances, Pearson alone was answerable, and that the rule of respondeat superior did not appl}'. The learned Baron overruled the objection, reserving leave to move for a nonsuit or for entering a verdict for the defendant. The plaintiff had a verdict on all the issues. 154 SADLER V. HENLOCK. [CHAP. IL In last term Hugh Hill obtained a rule calling on the plaintiff to show cause why a verdict should not be entered for defendant, or a nonsuit, on the plea of not guilty, or why a new trial should not be had, " on the ground of misdirection in this : that the Judge who tried the cause directed the jury to the effect that Pearson, who did the work, was the servant of the defendant, and that the defendant was respon- sible for the negligence of Pearson, although Pearson might have done the work which he was employed to do without being guilty of any negligence ; and also that, if it was material to determine whether Pearson was a contractor or servant, that should have been left as a question to the jur}'." T. Jones now showed cause. Hugh Hill, contra. Lord Campbell, C. J. I am of opinion that this rule ought to be discharged. The real question is, what relation subsisted between the defendant and Pearson. Ellis v. Sheffield Gas Consumers Company, 2 E. «fe B, 767, is inapplicable : the act there could not be done at all without committing a public nuisance. Here the drain might have been cleansed without injury to the public or to an}' individual. The question therefore depends on this : whether Pearson was the defend- ant's servant. Had Pearson been the domestic servant of the defendant, and the defendant had said to him, "go and clean out the drain," no doubt Pearson, by doing the work negligently, would have made the defendant liable. Then what difference can it make that Pearson was an independent laborer, to be paid by the job? The defendant might have said, '• fill up the hole in the road, but not as you are now doing it, lest, when a horse goes over the place, he may be injured." Pear- son was therefore the defendant's servant; and, if so, cadit qucestio. Our decision is not inconsistent with that in Peache}' i". Rowland, 13 Com. B. 182, and the other cases which have been cited, in which the relation of master and servant did not exist. Coleridge, J. I am of the same opinion. The defendant was not called on by public authorit}' to do the work ; nor was there an v reason wh\', if it could not be done properlv, it should be done at all. If the work had been done b}' his own hand he would have been responsible. So he would if it had been done by his servant or b}' a common laborer whom he had emplo3ed. On what ground? Because the party doing the act would have been employed by him. Instead of this, he employs a person who seems to have been usually emplo3-ed in such works. Such person is just as much his servant, for' this purpose, as a domes- tic servant. The rule must be discharged. "WiGHTMAN, J. Really the question is whether Pearson is to be considered as the defendant's servant or as a contractor exercising an independent employment. The whole evidence shows that the former is the correct view. Pearson was not a person exercising an indepen- dent business, but an ordinar}' laborer, chosen bv the defendant in preference to an}^ other, but not exercising an independent employ- ment. Our decision is in conformity with all the cases cited. SECT. II.] MOIK V. HOPKINS. 155 CuoMPTON, J. I am of tlie same oi)inion. The real question is, whetlier the (lefeiidant and IVarson stood to each other in the rehition of master and servant. I decide, not on the ground that Pearson did not employ the hands of another ; for, if he was the defendant's ser- vant, the defendant would be liable for the wrong doing of the person whom the servant employed : though it is true that such employment may sometimes be a test as to whether the employer was a servant or an independent contractor. The test here is, whether the defendant retained the power of controlling the work. No distinction can be drawn from the circumstance of the man being employed at so much a day or by the job. I think that here the relation was that of master and servant, not of contractor and contractee. It is only on the ground of a contractor not being a servant that I can understand the authorities. Rule discharged. MOm V. HOPKINS. Supreme Court of Illinois. 1855. [16 ///. 313.] This cause was heard before Wead, J., and a jnry, at April term, 1855, of Henderson Circuit Court. The opinion of the court gives a statement of the case. Sievxirt and Goudy, for plaintiff in error. C. M. Harris, for defendant in error. Skinner, J. Trespass by Manassah Hopkins against William, James and Robert Moir, for killing Hopkins' horse. The defendants pleaded not guilty. Upon the trial, the plaintiff proved b}- William Hopkins, his brother, that plaintiff had worked for defendants with his team ; that while he was at work he was taken sick, and went home, leaving his team with witness ; that at night, witness took the team home where plaintiff boarded, and kept his team ; that he put the team np and fed it, as directed by plaintiff; that the next da}', plaintiff being still sick, witness worked for defendants ; that on said day, defendants wanted a team to haul lumber in their mill-yard ; that early in the morning, defendant, Robert Moir, directed witness to go and see if he could not hire a team to do the hauling ; that witness accordingly endeavored to hire a team among the neighbors, but could not obtain one ; that when defendant, Robert Moir, found that witness had been unsuccessful in hiring a team, he directed witness to go and get plain- tiff's team ; that witness then went and got plaintiff's team out of the stable, without plaintiff's knowledge or consent, and took it to the yard and used it for defendants, hauling lumber during that forenoon ; that In the afternoon, defendants wanted some bricks hauled from the coun- try, a distance of eight miles, and that defendant, James Moir, directed 156 MOIR V. HOPKINS. [CHAP. II. witness to go and haul the bricks ; that witness started with plaintiff's team, got the bricks, and in returning, drove partly down a steep hill on the road ; that as he got part wa3' down, one of the horses was forced over the bank, fell and was killed ; that the horse was of the value of $115 ; that witness was a married man ; that the plaintiff was his brother, was an unmarried man, lived with witness, and kept his team at the stable of witness ; that for some time previous to the time plaintiff was taken sick, plaintiff had been in the employ of defendants, with his team, hauling lumber for defendants ; that plaintiff, on being taken sick, went to witness' house, and was there the next day, when witness took the team ; that plaintiff was sick and confined for some time after the horse was killed. The jury found the defendant, Robert Moir, guilty^ assessed the plaintiff's damages at Si 15, and found the other defendants not guilty. Motion for new trial overruled, and judgment on the verdict. The plaintiff in error, Robert Moir, assigns for error, the giving of the first and second instructions asked for by the plaintiff below, and the refusal of a new trial. These instructions are as follows : — First. If the defendants, or either of them, directed the witness to go and get the plaintiff's horses, and he did go and get tliem, in pursu- ance of such directions, without the assent, express or implied, of the plaintiff, the person giving such instruction is a trespasser. Second. If a person injures personal property belonging to another, of which he has obtained possession bj' a trespass, he is liable to pay for such injury. The first instruction construed with reference to the facts before the jury, and in the sense evidently intended by the court, and understood b}- the jur}', is clearh' good law. The plaintiff below, Hopkins, had, with his team, been in the employ of the Moirs ; had left on account of being sick ; was then confined, and his team was idle. The Moirs had sent their agent among their neighbors to hire a team, and he had re- turned unsuccessful. Robert Moir then directed the same agent to '•go and get" Hopkins's team. He did so. The instruction is based on the hypothesis of a command b}' the Moirs to their agent, to go and take Hopkins's team, and the evidence warranted the hypothesis. If, then, Robert Moir directed his agent to go and take Hopkins's team, and the agent did so, there can be no question of his liability for any injury done to Hopkins's property thereb}-. The rule of law is, that all who aid, command, advise or counte- nance the commission of a tort b}' another, or who approve of it after it is done, if done for their benefit, are liable in the same manner as they would be if the}' had done the same tort with their own hands. Judson V. Cook, 11 Barbour's R. 642; 1 Chitty's PL 208; Story on Agency, Sec. 455. The general rule is, that the principal is liable for the torts of his agent, done in the course of his emploj'ment, although the principal did not authorize, or justify, or participate in, or even if he disap- SECT. II.] PATTEN V. REA. 157 proved of tliem. If the tort is committed by the agent in the course of his employment, while pursuing the business of his principal, and is not a wilful departure from such employment and business, the princi- pal is liable, although done without his knowledge. Story on Agency, sec. 452 ; Fuller v. Voght, 13 111. 285 ; Johnson v. Barber, 5 Gil. 425, and cases there cited ; May v. Bliss, et al., '2'2 Vt. K. 477. And it would seem, that although Moir intended that his agent should get the owner's consent before taking his team, and the agent misunderstanding the instructions given, took it without the owner's consent, he would still be liable. 22 Vt. R. 478. The second instruction is certainly the law, and the evidence suffi- cient to sustain the verdict. Judgment affirmed.^ PATTEN V. REA. Common Pleas. 1857. [2 C. B. N. s. 606.] This was an action against the defendant for negligence in drivmg a horse and gig. The declaration stated that, by the wrongful act, neglect, and default of one William Taylor, then being and acting therein as the servant of the defendant, a certain horse and carriage of the defendant were driven upon and against a horse of the plaintiff, which last-mentioned horse was thereby- killed. The defendant pleaded, — first, not guilty, — secondly-, that the horse and carriage in the declaration mentioned were not the property of the defendant as alleged, — thirdly, that the horse and carriage in the dec- laration mentioned were not under the care, management, and direction of the defendant as alleged. Issue thereon. The cause was tried before Crowder, J., at the first sitting at Westminster in Hilary Term last. The facts which appeared in evi- dence were as follows: — The defendant was the proprietor of a re- pository for the sale of horses, at Newington, in the county of Surrey. Taylor was his manager there, acting as auctioneer in the sale of horses, collection of moneys, and otherwise in the general conduct of the business. He had a horse and gig, his own property, which were kept for him on the premises of the defendant free of charge, and which he was in the habit of using when going out upon the defendant's busi- ness. One Smith had bought a horse at the defendant's repository, which he ought to have paid for at the office upon the premises, but had not done so. On the 10th of November, 1856, Taylor was going in the gig to see his medical attendant at Finsburj' Place, and also purposed to call upon Smith for paj-ment of the debt he owed the defendant for the horse ; and, whilst on his way to the former place, and before he 1 See Wilson v. Noonan, 27 Wis. 598 (1871); Maier v. Randolph, 33 Kan. 340 a 88.5). —El). 158 PATTEN V. REA. [CHAP. IL got to Smith's, he negligently ran against and killed a horse belonging to the plaintiff. It appeared, that, whilst Taylor was getting ready the horse and gig for the purpose of going on the journey in question, the defendant asked him where he was going, when Taylor told him he was going to get Smith's money. On the part of the plaintiff it was insisted, that, although the horse and gig were the property of Taylor, yet, as at the time of the accident he was using it in the defendant's business, and with his knowledge, the defendant was liable. The contrary was contended on the part of the defendant. In answer to questions put to them by the learned judge, the jur}' found, that, on the occasion in question, there was no verbal request by the defendant to Taylor to go with the horse and gig upon the defendant's business ; but that Taylor went on the journey upon the business of the defendant, and that the defendant knew it and assented to it. Upon this finding, the defendant's counsel claimed to have the verdict entered for him upon the second and third issues. The learned judge, however, ruled that the plaintiff was entitled to the verdict upon all the issues, and the jur^^ assessed the damages at £31. Atherton, in Hilary Term last, obtained a rule nisi for a new trial, on the ground of misdirection on the part of the learned judge, — first, in not leaving to the jury the question whether the horse and gig driven by William Taj-lor were used b}' him on his master's busi- ness, at the instance and express I'equest of the defendant, — secondly, in not directing the verdict to be entered for the defendant, on the fact being found, and not disputed, that the horse and gig were the property of William Taylor, not b}' him made over or bailed to the defendant ; or on the ground that the verdict was against the weight of evidence, if it was to be taken that the jury in fact found that the horse and gig driven by Taylor were used by him on his master's business at the instance and express request of the defendant. 3Iontagu Chambers, Q. C, and Joyce^ now showed cause. — The evidence shows beyond dispute that Ta3lor was at the time the col- lision took place acting in the service and about the business of the defendant ; and the fact of the horse and gig belonging to Ta3-lor can make no difference ; the defendant would have been equally lia- ble if they had been the property of a stranger. Taylor had the general management of the defendant's business. A horse had been sold to one Smith, and Taylor was going to him for the purpose of obtaining payment for it. He was also, it is true, going elsewhere, for a purpose of his own : but he met with the accident before he reached Smith's. [Willliams, J. — Was it essential to the master's business that the journey should be made with the horse and gig?] Probably not ; but Taylor was in the habit of going about his mas- ter's business with the horse and gig. [Cockbukn. C. J. — Suppose SECT. II.] PATTEN V. KEA. 159 the master had said to him, " Go to such a place," without more, would he be liable?] That would depend upou the surrounding cir- cumstances. Here, the evidence was, that Taylor's horse and gig were kept for him free of cost upon the defendant's premises, that he was in the habit of using them when going upon the defendant's business, and that, on tlie occasion in question, the defendant knew where he was going, and the manner of going. He therefore tacitl}' assented to his going in that manner. The case of Goodman v. Keunell, 1 M. & P. 241, is ver}- much in point. There, a person occasionally employed by the defendant as his servant, being sent out b}- him on his business, took the horse of another person, in whose service he also worked, and, in going, rode over the plaintiff. At the trial, it was left to the jur}' to say whether or not the horse was taken by the servant with the implied consent or authoiit}' of the defendant; and, they having found a verdict for the plaintiff, the court refused to interfere. Best, C. J., said : " It has been trulj' said that a serv'ant's riding the horse of another, without the assent or authority of his master, cannot render the latter answerable for his acts. But here the question was, whether there was not sufli- cient evidence to show that Cocking was riding the horse with the defendant's assent, and ou his business. It was proved that Cocking was the servant of the defendant ; that the horse was in his stable ; and that on the da}- the accident happened. Cocking was going on the defendant's business or employment. The proof of these three facts was sufficient to raise a strong presumption that Cocking was using the horse with the defendant's consent." Here, the proper question was left to the jury, — did Tajlor go in the gig at the re- quest of the defendant, or with his assent? The jurj- found that it was done with the defendant's knowledge and assent. [Crowder, J. — The contention was. that, in order to render the defendant liable, there must be something tantamount to a command by the master. The rule is not quite correct in the use of the word express.'] It might almost be said here that there was an express command. [The court called on Athei'ton, Q. C, and Barnard, to support the rule. — This is an action against the defendant, not for an act or omission imputed to him personalh', but for an act done hy his servant. That Taylor was at the time of the accident acting in the service of the defendant, and about his business, is admitted. That, however, is not enough to im- pose upon him this liability. The rule of law is well exemplified by the language of the declaration itself: to render the defendant liable, Taylor must in the very act of driving have been acting as his servant, and not upon his own account. A man may be the servant of another at the time of doing the act which causes the injury, without that other being responsible for the mode of doing the act. The question is, not whether the servant was engaged on his master's business, but whether he was going in the particular manner, — with the horse and chaise, — as his servant. The mere fact of the master seeing him about tf) start 160 PATTEN V. KEA, [CHAP. II. in the chaise, and making no objection, is not enough. [Cockbdrn, C. J. — Tliat is only one circumstance. The facts seem to be these : — Taylor is employed in the general management of the defendant's busi- ness. He possesses a horse and gig ; and it is mutually agreed, that, in consideration of the use of the horse and gig by Taylor for the pur- pose of the defendant's business, they shall be kept upon the defend- ant's premises without charge. Upon the occasion in question, Taylor was going out upon his master's business ; the master saw him start upon the journey, and thereby assented to that mode of performing the service. The knowledge of the master was only one circumstance, in addition to the other and more material ones. I think it was a question for the jury, and that there was abundant evidence for them.] There was no evidence of any agreement or arrangement to the effect just stated. There was no bargain that the use of the horse and gig for the purpose of the defendant's business should be an equivalent for the horse's keep. [Cockburn, C.J. — It was a tacit arrangement. That seems to have been assumed on all hands.] Suppose a master desires his servant to go to a certain place, and the servant of his own accord borrows a friend's horse for the purpose of riding there, and his master meets him by accident on the wa}-, and says nothing, — could it be con- tended, that, in riding that horse, the man was acting in the service of his master, so as to make him responsible for auy misadventure of the servant on the road? [Crowder, J. — You must not lose sight of the other facts. Taylor was manager at the defendant's establishment ; and his horse and gig were kept there without charge, and were used by him from time to time upon his master's business.] There was no evidence of any contract which made it his dut}' to use the horse and chaise in his mastei"'s service. It clearly was a misdirection not to leave it to the jury to sa}' whether the horse and gig were used by Taylor on his master's business, at the instance and request, express or implied, of the defendant. [Cockburn, C. J. — I think the master would have been liable if Taylor had taken the horse and chaise without his knowledge. I think there was abundant evidence for the jury, inde- pendently of that fact.] To justify- the verdict, it should have been found as a fact that there was some obligation, some binding contract, on the part of Taylor to find a horse and gig for the service of his master. Cockburn, C. J. I am clearl}' of opinion that this rule must be discharged. I concur in the argument urged by the defendant's coun- sel, to this extent, that, to render the master liable, it is not enough to show that the person driving the vehicle which causes the damage is his servant, but that it must be shown that the servant was driving with his master's authorit}' and upon his business. Now, I tliink there was abundant evidence here that Taylor was driving, at the time the accident occurred, with the defendant's authorit}' and in the course of business as his servant. Taylor, it appears, was the general manager of the defendant's establishment; and, being so, he, either by express agreement or by some tacit arrangement, was in the habit of using in SECT. II.] PATTEN V. REA. 161 transacting the defendant's business a horse and gig, his own property-, which, in consideration of that arrangement, were kept for him upon the defendant's premises free of charge. Looking at these circumstances, and considering the nature of the business, I tiiink Taylor must be as- sumed to liuv'e had authority to exercise iiis discretion as to the mode of performing his duty to his master. Adding to this the fact tliat the master knew that his servant was using the horse and gig on the partic- ular occasion, I think the evidence was ample to show that what was done had the sanction and authorit}- of the master. That question was not at all withdrawn from the jury. The contention on the part of the defendant at the trial was, that he was not responsible for the damao^e, because the horse and gig were the propert3' of Taylor, and because there was no evidence of any express command from the defendant to Taylor to use the horse and gig upon the occasion in question. I think the former part of the argument is met by the fact that the horse and gig were kept by the defendant free of charge to Taylor, and were ordi- narily used by him in the performance of journeys about his master's business, and the latter by the fact that the master was cognizant of the course which iiis servant was pursuing at the time, and did not dissent. I think the case was properly presented to the jury, and that there is no ground for saying that the verdict was not well warranted by the evidence. Williams, J. I am entirely of the same opinion. I agree with Mr. Atherton, that, in cases of this sort, the real question is, whetlier the servant while doing the negligent act complained of was acting as the agent of the defendant. That is demonstrated b}' the consideration that the plaintiff in declaring in such an action has the option of alleg- ing the negligent act to be the act of the servant, or of relying upon the legal effect, and alleging it to be the act of the master. Thus, in Brucker v. Fromont, 6 T. R. 659, it was held that a declaration which charges the defendant with having negligently driven his cart against the plaintiffs horse, is supported by evidence that the defendant's ser- vant drove the cart. I think there was ample evidence here that Taylor, at the time of the accident, was acting as the servant and by the author- ity of the defendant. It was incumbent on the plaintiff, no doubt, to show that Taylor acted as the defendant's agent in the employment of the horse and gig upon the particular occasion. I think there was evi- dence enough of that for the jury, and that that question was properly left to them. The rule does not complain that it was not so left : the complaint is. that my Brother Crowder misdirected the jury in not leaving to them the question whether the horse and gig driven bj- Taylor were used by him on his masters business, at the instance and express request of the defendant. Now, it clearly is not necessary- 'm cases of this sort that there should be any express request : the jury may imph' a request or assent from the general nature of the ser- vant's duty and employment. There was ample evidence of such implied request or assent here. The only other complaint made of the direction was not relied on by Mr. Atherto?i in his argument in support of the U 162 WEED V. PANAMA RAILROAD CO. [CHAP. IL rule : nor could it have been with any hope of success. Upon neither ground, therefore, can this rule be sustained. WiLLEs, J. I am clearl}' of the same opinion. The argument urged on tlie part of tlie defendant amounts in substance to a denial of the general rule laid down by Lord Holt in Turberville v. Stampe, 1 Lord Ravm. 26G, that "a master is responsible for all acts done by his ser- vant in the course of his employment, though without particular direc- tions." Was Taylor at tlie time the accident complained of happened acting in the course of his employment? It appears that part of the terms of his employment was that he should have the benefit of the keep of his horse and the standing of his gig upon his master's premises, in consideration of his using tliem when going about his master's business ; and that he was actually engaged on his master's business, viz. going to collect a debt due to him, at the time. And it further appears that his master knew that he was going, and in what manner he was going. The master is clearly reponsible. Crowdeu, J., said nothing. Eule discharged. WEED AND ANOTHER V. THE PANAMA RAILROAD COMPANY. Court of Appeals of New York. 1858. [17 iV. y. 362.] Appeal from the Superior Court of New York City. The action was brought b}' husband and wife to recover damages for breach of duty by the defendant as a carrier of passengers, whereby the wife was injured in her iiealth. On the trial before Mr. Justice Oakley and a jury, it was proved that in August, 1854, the plaintiffs were passengers on a train of cars of the defendant from Obispo to Aspinwall, about thirty miles distant. The train proceeded about seven miles on the route, to a place called the Barbacoas Switch, where it was detained during a night, and did not reach Aspinwall until the afternoon of the day fol- lowing. There were about four hundred passengers on the train, who remained in the cars during the night, from inabilit}' to procure other accommodations. The weather was stormy, and the wife was taken sick in the night and experienced great suffering. Much evidence was given tending to prove that in consequence of the detention her health was greatly and perraanentl}' injured. In summing up, the plaintiffs' counsel insisted that the evidence es- tablished that the conductor designedly left the train at the Barbacoas Switch, having that intention wlien he left Obispo, and that for this reason exemplar}- damages might be given. He claimed damages on the ground of wilful misconduct and negligence. The counsel for the defendant asked the court to charge the jury that if the conductor acted wilfull}' in the detaining of the train the defendant was not liable for that, as there was no evidence that defendant authorized or approved such SECT. II.J WEED V. PANAMA RAILROAD CO. 163 nnsconduct. The justice refused so to charge, and to such refusal the defendant's counsel excepted. The justice then directed the jiUT, among other things, that altliough the}' should find that the conductor acted wilfull}' in the detention of the train, the defendant would not for that reason be entitled to a verdict ; to which the defendant's counsel ex- cepted. The justice, after delivering his charge, directed tlie jury to answer the following questions, which were submitted to tliem in writ- ing : First. Was the detention at the Barbacoas Station, liy the con- ductor of the defendant, a wilful act of the conductor? Second. In detaining the train as lie did there, did the conductor act negligenth' or without reasonable care and judgment? The counsel for the defendant excepted to the submission of the first question to the jur}-. The jury answered each of these questions in the allirmative, and rendered a verdict for the plaintiffs, assessing damages at $2,000. Judgment was sus[)ended and a case made which, in pursuance of a direction at the close of the trial, was argued at a general term, where judgment was rendered for the plaintiffs on the verdict. The defendant appealed to this court. James T. Brady, for the appellant. A. J. IrVillard, for the respondents. Strong, J. The i)rincipal question in this case is, whether the de- fendants are liable for the detention of the train producing damages to the wife, although the detention was the wilful act of the conductor, neither authorized nor approved b}' the defendants. The obligation of the defendants from receiving the wife on their train of cars to be carried to Aspinwall and proceeding with the train part of the distance, to carr3' her to that place with all reasonable diligence, is not disputed by them and admits of no doubt. (Story on Bailment, § 545 ; Wibert v. New York & Erie Railroad Co., 2 Kern. 253.) Nor is it claimed by them that detention and delay on the route, from the mere negligence of the conductor or other servants of the defendants connected with the management of the train, occasioning damage to the wife, would not be a breach of the obligation for which the defendants would be responsible ; but they insist that their obligation is not broken and that they are not liable for the wilful act of the conductor followed by such a result; and they invoke in support of their position the rule, well sustained by principle and authority, that a master is not liable for a wilful trespass of his servant. It is important, therefore, to inquire whether that rule extends to a case like the present, and for that purpose, to consider the basis on which it is founded. The reason of the rule clearly appears by the cases in which it has been declared and applied.^ . . . All the cases on the subject, so far as I have observed, agree in regard to the principle of 1 Here were stated M'Manus v. Crickett, ante, p. 102 ; Wright v. Wilcox, ante, p. 1 1 8 ; Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 480 ; s. c 4 N. Y. 479. Reference waf also made to Hibbard v. New York & Erie Ry. Co., 15 N. Y. 455, 467, 468 ; and Story on Agency, §§ 456-462. — Ed. 164 WEED V. PANAMA RAILROAD CO. [CHAP. IL the rule, and also in limiting the rule to that principle. For acts of an agent within his authorit}-, the principal is liable, but not for wilful acts without his autliority. (Phil. & Read. R. R. Co. v. Derby, 14 How. U. S. R. 4GH.) In the light of this examination of the class of cases which has been considered, it cannot fail to be seen that there is an important differ- ence between tliose cases and the one before the court. Tlie former are cases of wilful, unauthorized, wrongful acts by agents, unapproved by their principals occasioning damage, but which do not involve nor work an}' omission or violation of duty by their principals to the per- sons injured ; wrongs by the agents only, with which the principals are not legally connected. In the present case, b}- means of the wrongful, wilful detention by the conductor, the obligation assumed by the de- fendants to carry the wife with proper speed to her destination, unless this wilful wrong of the conductor was an excuse to them, was broken. The real wrong to the wife in this case, and from which the damage proceeded, was the not carrying her in a reasonable time to Aspinwall, as the defendants had undertaken to do ; and this was a wrong of the defendants, the carriers, unless the law excused them for their delay on account of the misconduct of their agent. It is for this alleged wrong of the defendants in not performing their duty as carriers with reasona- ble diligence, from which injury has been experienced, that this action was brought ; and the only question in relation to the point under con- sideration would seem to be, whether they can defend themselves by showing that the delay on the route was the wilful wrong of one of their servants. The jur}' have found, as necessarily included in their general verdict for the plaintiffs, that the defendants did not use due diligence ; but they have also found, in answer to a special inquiry', that the detention to which it was owing was a wilful act of the conduc- tor. Upon these findings, connected with the exceptions to the refusal of the judge to charge that if the conductor acted wilfully in detaining the train the defendants were not liable and charging the contrarv, the question must be whether the fact that the detention was a wilful wrong of the conductor at all varies the law of the case. Viewing the general question, as it appears to be clear we must, as being whether the defendants have discharged their duty as carriers, and the particular point of inquiry', whether the circumstance that the detention was a wilful act of their servant will excuse what will other- wise be a want of proper diligence, this part of the case is relieved from difficult}'. If the detention had resulted from negligence of the conductor, the liability of the defendants would be unquestionable. A master is answerable for negligence of his servants in the perform- ance of their duties. (2 Kent. Com. 601, 602.) Story, in bis Treatise on Agency (§ 452), sa3'S : " It is a general doctrine that a principal is liable to third persons, in a civil suit, for the frauds, deceits, conceal- ments, misrepresentations, torts, negligence, and other malfeasances or misfeasances and omissions of duty of his agent in the course of hia SKCT. II.] WEKD V. PANAMA RAILROAD CO. 165 employment, although the principal did not authorize or justify or par* ticipate in or indeed know of such misconduct, or even if he forbade the acts or disapproved of them," &c. " In every such case, the prin- cipal holds out his agent as competent and fit to be trusted, and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of his agency." (Story on Bailm., §§ 400-406; Stokes v. Saltonstall, 13 Pet. U. S. R. 181.) No reasons exist for holding a master liable for injuries from negligence of his servants in his employ- ment, which do not equally and with like force preclude him from alleg- ing an intentional default of a serv^ant as an excuse for delay in the performance of a duty the master has undertaken. In the former case, the negligence of the servant is that of the master, and that is the ground of the master's liability ; in the latter, the act of the servant is the act of the master, constituting negligence of the master ; the motive of the servant making no difference in regard to the legal character of the master's default in doing his dut}'. The obligation to be performed was that of the master, and delay in performance, from intentional vio- lation of duty by an agent, is the negligence of the master. In the present case, the defendants, as carriers, were bound to carry the wife tlie entire journe}' with reasonable despatch, but the conductor stopped the train on the route unreasonably, in known disregard of his duty ; the defendants did not send it forward as it was their duty to do, providing another conductor if that was necessary, and that was ncgli- gence of the defendants. It must be assumed, in the absence of any finding or even proof to the contrary, that it was practicable for the defendants to forward the train without injurious dela}'. I am satisfied, for the reasons stated, that the rule of law relied on by the defendants to sustain their position, which has now been con- sidered, is inapplicable to the case. It is made a point b}' the defendants that judgment could not prop- erly be rendered against them, for the reason that the findings of the jur}' that the detention was a wilful act of the conductor, and also that in detaining the train he acted negligenth" or without reasonable care and judgment, are inconsistent with each other ; but in the view I have taken of the case, whether the act was wilful or negligent makes no difference as to the liabilit}' of the defendants ; in either aspect the judgment was right. Harris, J., did not sit in the case : all the other judges concurring. Judgment affirmed}' 1 In Craker i-. Chicago & Northwestern Railway Co., 36 Wis. 657, 668-669 (1875), Ryax, C. J., said : " We cannot help tliinking that there has been some useless subtlety in the books in the application of the rule respondeat superior, and some unnecessary confusion in the liability of principles for wilful and malicious acts of agents. This has proliably arisen from too broad an application of the dictum of Lord Holt, that ' no master is chargeable with the acts of his servant but when he acts in the execu- tion of the authority given to him, and the act of the servant is the act of the master.' Middleton v Fowler, 1 Salk. 282. For this would seem to go to excuse the master foi the negligence as well as for the malice of his servant. One employing another in 166 SEYMOUR V. GREENWOOD. [CHAP. IL SEYMOUR V. GREENWOOD. Exchequer. 1861. [6 H. ^' N. 359.] Declaration. That the plaintiff was a passenger for reward in and upon a certain carriage of tlie defendant, used for the conveyance of passengers in a certain public street in the cit\' of Manchester, to wit, Clicster Road, and being and while he was such passenger, the defendant and his servants so negligently and improperly conducted themselves in and about the driving, managing and conducting of the said carriage, that the plaintiff was thereby cast from the said carriage to the ground with great violence, and his skull was fractured and his legs crushed and bruised, and he suffered great personal injuries, &c. Pleas. First: Not guilty. Secondly, that the plaintiff was not a passenger. At the trial, before Blackburn, J., at the last Liverpool Spring Assizes, it appeared that the action was brought against the defendant, the proprietor of an omnibus, by the plaintiff, who had been forcibly removed from the omnibus by the guard in charge of it, whereby the plaintiff's skull was fractured. The plaintiff's witnesses proved that the plaintiff pulled the wire and the bell rung. The guard then went good faith to do his lawful work, would be as little likely to authorize negligeute as malice ; and either would then be equally dehors the employment. Strictly, the act of the servant would not, in either case, be the act of the master. It is true that so great an authority as Lord Kenyon denies this in the leading case of McManus v. Crickett, 1 East, 106, which has been so extensively followed; and again, in Ellis v. Turner, 8 Term, 5.31, distinguishes between the negligence and the wilfulness of the one act of the agent, holding the principal for the negligence but not for the wilfulness. It is a singular comment on these subtleties, that McManus v. Crickett appears to rest on Middleton v. Fowler, the only adjudged case cited to support it ; and that Middleton V. Fowler was not a case of malice, but of negligence, Lord Holt holtling the master in that case not liable for the negligence of his servant, in such circumstances as no court could now doubt the master's liability. In spite of all the learned subtleties of so manv cases, the true distinction ought to rest, it appears to us, on the condition whether or not the act of the servant be in the course of his employment, as is virtu- ally recognized in Ellis c. Turner. " But we need not pursue the subject. For, however that may be in general, there can be no doubt of it in tliose employments in which the agent performs a duty of the principal to third persons, as between such third persons and the principal. Because the principal is responsible for the duty, and if he deleg;-oe it to an agent, and the agent fail to perform it, it is immaterial whether the failure be accidental or wilful, in the negligence or in the malice of the agent ; the contract of the principal is equally broken in the negligent disregard, or in the malicious violation, of the duty by the agent. It would be cheap and superficial morality to allow one owing a duty to an- other to commit the performance of his duty to a third, without responsibility for the malicious conduct of the substitute in performance of the duty. If one owe bread to another and appoint an agent to furnish it, and the agent of malice furnish a stone instead, the principal is responsible for the stone and its consequences. In such cases, malice is negligence. Courts are generally inclining to this view, and this court long eince affirmed it." — En. SECT. II.] SEYMOUR V. GREENWOOD. 167 into the omnibus and seized the plaintiff b}' the collar. The plaintiff offering no resistance, tlie guard backed himself out of the omnibus, drawing the plaintiff after him, and threw the plaintiff upon the road. Tlie plaintiff fell to the ground, and a cab, coming up, went over him. The guard did not fall. This was in August, 1859. In December the plaintiff's attorney wrote to the defendant as follows : — "Sir, — I have been requested by Mr. Seymour to write to you in reference to the serious injuries he sustained at the hands of your ser- vants on the 22nd of August last. " I may state that he was a passenger on that day in your omnibus, &c. He signalled the guard to stop and let him alight. B}- the neg- ligence and improper conduct of the guard, Mr. Seymour was cast with great violence upon the roadway. One of your Hansom cabs, which was following the omnibus, immediatelv came into contact with Mr. Seymour's head. I shall be glad to receive any communication from you upon the subject, &c. " I am, sir, "Mr. John Greenwood. R. W. Stead." In consequence of that letter a person named Baxter called on the plaintiff's attorne}-. He said that Mr. Seymour was mistaken in sig- nalling the guard to stop ; that he was drunk, and had refused to pay his fare ; that he had created a disturbance in the omnibus lower down the road ; that he had first assaulted the guard, and that there had been a scuffle, and that in the scuffle they had both rolled out into the road. On cross-examination, the plaintiff said his memor}' was much affected by the accident, but he believed he was not drunk at the time, but he admitted that he had been diinking. At the conclusion of the plaintifl"'s case, the defendant's counsel submitted that there was no evidence to charge the defendant with the assault committed b}' his servant, which was not an}' negligence in the performance of his duty, but an unwarrantable assault; and a verdict was entered for the plaintiff with leave to the defendant to move to enter a nonsuit, if the court should be of opinion that there was no evidence on which the jury might reasonabh- find that the act of the servant was one for which the defendant was answerable. T. 'Tojies, having obtained a rule '' to show cause why the verdict found for the plaintiff on the trial of this cause, &c., should not be set aside, and a nonsuit entered on the ground agreed upon, that there was no evidence to go to the jur}-." Monk and Wheeler now showed cause. The question is, whether at the time when the act complained of was committed, the guard was acting as the servant of the defendant. In Eex v. Gutch, M. & M. 433, Lord Tenterden ruled that the proprietor of a newspaper, who intrusts the conduct of the publication to one whom he selects, is crimi- nally answerable for a libel published in such newspaper, though it is not shown that he was individually concerned in the particular publi- 168 SEYMOUR V. GREENWOOD. [CHAP. II. cation. One of the tests whether the maxim "respondeat superior" applies is, wlietlier the party was enabled to do the wrongful act by reason of his employment. Plere there was evidence that the plaintiflE was drunk, and it may well have been tiie duty of the guard to remove him in a careful manner. The removal of the plaintiff from the omnibus was then an act done by the guard with the defendant's authority, and, in the ordinar}' course of the employment intrusted to him ; and it was, therefore, an act for which the defendant is responsible : Patten v. Rea, 2 C. B. N. S. 606. The defendant does not suggest that the act of the guard was malicious. [Pollock, C. B. In removing the plaintiff from the omnibus, the guard seems to have acted so carelessly as to injure the plaintiff. Martin, B. The only question is whether there was evidence for the jury.] T. Jones^ in support of the rule. It may be conceded that the question is wliether there was any evidence for the jury. It is sub- mitted that the guard was a trespasser, and that the defendant is not liable for his act. A master is not liable for the trespass of his ser- vant. [Martin, B. If a servant drives his master's carriage against another, the servant is liable in trespass, the master in case.] Was the act one wliich the relation between the guard and the defendant warranted him in doing? A master is not liable except for acts of omission on the part of the servant — not for acts of commission. Here what is complained of is a trespass — an act committed — not an act of omission, such as negligence in driving or managing the omnibus. By the concurrent testimony of all the witnesses, without provocation the guard dragged the plaintiff out of the omnibus, and threw him on the ground. [Channell, B. Suppose the plaintiff, being a passenger, had grossly misconducted himself, the guard would have been justified in removing him without unnecessary violence. Therefore, if the representation of Baxter is well founded, it may show that the guard had the authority of the defendant to remove the plaintiff, and, in so doing, was engaged in the business of his master : Mitchell v. Crass- weller, 13 C. B. 237.] M'Manus v. Crickett, 1 East, 106, shows that a master is not liable in trespass for the wilful act of his servant, as by driving his master's carriage against another, done without the direc- tion or assent of the master. [Pollock, C. B. Suppose a servant driving along a road in order to avoid supposed danger intentionally drove against the carriage of another, would not the master be respon- sible?] Not if the servant transgressed the line of his dut}'. In M'Manus V. Crickett, Lord Kenyon cites Bro. Ab., tit. "Trespass," pi. 435, where it is said : "If my servant, contrary to my will, chase my beasts into the soil of another, I shall not be punished." And 2 Roll. Ab., 553, " If my servant, without m}' notice, put my beasts inta another's land, my servant is the trespasser, and not I." In Savignao V. Roome, 6 T. R. 125, it was held that an action on the case, stating that the defendant's servant wilfully drove against the plaintiffs car- riage, whereby it was damaged, could not be supported, and the court SECT. II.] SEYMOUR V. GREENWOOD. 169 arrested the judgment on that ground. In Roe v. The Birkenhead, Lancashire and Cheshire Junction Railway Compan}-, 7 Exch. 36, a railway servant, who had charge of a train, on receiving the plaintiff's ticket, told him he had come by the wrong train, and that he must pay 2.S. (5d. more. This the i)hiiutitf refused to pay, and he was thereupon taken into custody h}" a railvva}' servant, under the direction of the superintendent. The court held that the plaintiff was bound to shovr that the person by whom he was arrested was not only the servant of the Compan}', but also that he had their authorit}- to arrest him. [Maiitin, B. That case goes farther than any other on this sultject. CiiANNELL, B. Would it not have been negligence if the guard took the plaintiff out of the omnibus and left him in the middle of a street in a crowded thoroughfare, when he was too drunk to walk?] If a ser- vant is guilty of anything which is not mere want of skill or want of care, the master is not resjjonsible : Sharrod r. The London and North Western Railway Com[)an\-, 4 Exch. 580 ; Gregor}' v. Piper, 9 B. & C. 591 ; Timothy v. Simpson, 6 C. & P. 499. Pollock, C. B. We are all of opinion that the rule to enter a non- suit must be discharged. I agree with my brother Martin that since the case of Roe r. The Birkenhead, Lancashire and Cheshire Railway* Company the courts have been desirous to give full effect to tlie rule by which a master is made responsible for want of care on the part of his servants in executing his commands. As a judge, in determining what is evidence, and as a juryman in giving effect to it, I should have decided that the defendant's servant was ejecting a troublesome pas- senger from the omnibus — not with violence and brutality, for I do not believe that he intended to do more than put the plaintiff safely out of the omnibus, and that his act in so doing produced the mischief which occurred. I think then that there was evidence that the defend- ant's servant was executing his master's command, but with a want of care and consideration. I adopt the definition under which Mr. Jones admits that his client would be liable. The law on this subject hag undergone much discussion of late years. At the time of the decisions of Scott V. Shepherd, 2 W. Black. 892, and M'Manus v. Crickett, the subject had not been so thoroughly considered as it has since been. For these reasons, I think that the rule must be discharged, and my brother Channell, who has left the court, is of the same opinion. Martin, B. The question is, wliether there was evidence from which a jury might find that the act was one for which the defendant was responsible. There was evidence that the plaintiff was drunk, and had refused to pay his fare ; he had assaulted the guard, and a scuffle took place, in which the plaintiff was thrown to the ground and injured. If the guard used unnecessary violence, the defendant, his master, is responsible. There are man}- cases, of which Roe v. The Birkenhead, Lancashire, and Cheshire Railway Company is one, in which the lia- bility of the master is put as resting upon the relation of principal and agent ; but in reality it depends upon the relation of master and sei> 170 LIMPUS V. LONDON GENERAL OMNIBUS CO. [CHAP. IL vant. If the act is one within the scope of the servant's employment, and is done in the master's service, an action lies against the master, and the master is liable, even though he has directed the servant to do nothing wrong. In the present case the act was one which was prop- erly within the scope of the servant's employment. M'Manus v. Crickett is ordinarily cited as showing that the master is not liable for the malicious act of his servant. Of course we do not say that a mas- ter is responsible for everything which a servant does in the course of his employment. A great deal has been said as to the act being one which was purelj' a trespass ; but it was nothing more than the guard of an omnibus putting a person out who had misconducted himself. The case of Roe v. The Birkenhead, Lancashire and Cheshire Railway Compan}' was much considered in this court in the cases of Wilson v. The Lancashire and Yorkshire Railway Company, and Farren v. The Lancashire and Yorkshire Railway Company.^ Hule discharged.^ LIMPUS V. LONDON GENERAL OMNIBUS COMPANY. Exchequer Chamber. 1862. [1 H. i- C. 526.] Error on a bill of exceptions. The declaration stated that before and at the time of the committing of the grievances, &c., the plaintiff was lawfully possessed of an omnibus and harness, and of horses drawing the same, which were in a certain public highway. And the defendants were then possessed of another omnibus, and of horses drawing the same, which were then under the care, government and direction of a servant of the defendants, who was then driving the same in and along the same highwaj'. Nevertheless, the defendants, by their said servant, so carelessly, negligentlj', and improperl}* drove, gov- erned, and directed their said omnibus and horses, that b}' and through the mere carelessness, negligence, and improper conduct of the defend- ant by their said servant in that behalf, the said horses and omnibus of the defendants ran against and came in collision with the horses and omnibus and harness of the plaintiff, and overturned and broke to pieces and damaged the said omnibus and harness of the plaintiff, and bruised, wounded, and injui'ed one of the horses of the plaintiff. 3y means whereof the plaintiff was put to and necessarily incurred expense in and about endeavoring to cure his said horse and repairing the damage done to his said harness and omnibus, &c. 1 Not reported. A short note of these cases may be seen in 27 Law Times, 204. — Rep. 2 Acc: Higgins v. Watervliet Turnpike Co., 46 X. Y. 23 (1871) ; Bayley v. M., S. & L. Ry. Co., L. R. 8 C. P. 148 (Ex. Ch., 187.3) ; Hoffman v. N. Y. C. & H. R. Railroad Co., 87 N. Y. 2.0 (1881). Seymour v. Greenwood was affirmed in the Exchequer Cham- ber, 7 H. & N. 355 {1861 ). — Ed. SECT. II.] LIMPUS V. LONDON GENERAL OMNIBUS CO. 171 Plea. — Not guilty. Issue thereon. The cause was tried before Martin, B., at the Middlesex Sittings after Michaelmas terra, 18G1. The bill of exceptions set out the Judge's note of the evidence, which was (in substance) as follows : — The driver of the phuntiir's omnibus stated that on the 27th August he left the bank for Hounslow. Alter he had passed Sloane Street and was going towards Kensington, he slopped, about the barracks at Knighlsbridge, to take up two passengers. Tlie defendants' omnibus then passed him, and got ahead, eight to a hundred yards. In passing, the driver eased liis pace, and witness went on at his regular pace and overtook him. Tliere was room in the road for five or six omnibuses. AVhen witness got up to the defendants' omnibus, it was on the off side of the road rather than the near ; but there was plent3- of room to pass. As witness was going to pass, the driver of the defendants' onniibus pulled across the road, and one of tlie hind wheels touched the shoulder of witness's near horse. Witness called out and tried to pull up, but could not. There was a bank there, and the defendants' driver forced the witness's off horse on to the bank. The wheels of plaintiff's omnibus went on the bank and threw the omnibus over. On cross examination the witness stated that the defendants' driver pulled his horses towards the witness's horses to prevent him passing. Another witness stated that the defendants' driver drove across the road purposely to prevent the progress of the plaintiff's omnibus, and that he considered it a reckless piece of driving. On behalf of the defendants, the driver of their omnibus stated that he passed the plaintiffs omnibus, when the driver pulled up on his near side to take up the two passengers. Afterwards the plaintiff's driver put his horses into a gallop to overtake the defendants' omnibus. Tlie witness proceeded to sa}' : "I pulled across him to keep him from passing me, to serve him as he had served me. His omnibus ran upon the bank and turned over on its side. I pulled across on purpose." The witness stated that- he was furnished with the following card : " London General Omnibus Company (Limited). "Attention is particularly- directed to the following regulation of the Company, and the drivers are desired to act in accordance therewith. " During the journej- he must drive his horses at a stead}' pace, endeavoring as nearly as possible to work in conformit}' with the time list. He must not on any account race with or obstruct another omnibus, or hinder or annoy the driver or conductor thereof in his business, whether such omnibus be one belonging to the Company or otherwise. " By Order. — A. G-. Church, Secretary, "31 Moorgate St." Another witness, who was a passenger on the defendants' omnibus stated that at Knightsbridge ther^ was a contention between the con- ductors of tlie two omnibuses which should have three ladies, who got into the plaintiff's omnibus. The defendants' driver wished to go on ; the plaintiff 's drove him across the road, so that he could not go on. 172 LLMPUS V. LONDON GENEKAL OMNIBUS CO. [CHAP. II. The defendants' driver said : " I will serve you out when I get on the road." The plaintiff's omnibus went on first, and stopped at the barracks to take up two passengers, when the defendants' omnibus passed it. When near Gore Lane, the defendants' driver maliciously and spitefully drove his horses suddenly to the footpath, not allowing the after omnibus any space at all. Martin, B., directed the jury " that, when the relation of master and servant existed, the master was responsible for the reckless and improper conduct of the servant in the course of the service ; and that if the ]\\vy believed that the real truth of the matter was that the defendants' driver, being dissatisfied and irritated with the plaintiff's driver, whether justly or unjustly, by reason of what had occurred, and in that state of mind acted recklessl3', wautonh', and improperl}', but in the course of his service and employment, and in doing that which he believed to be for the interest of the defendants, then the defendants were responsible for the act of their servant : that if the act of the defendants' driver, in driving as he did across the road to obstruct the plaintiff's omnibus, although a reckless driving on his part, was never- theless an act done by him in the course of his service, and to do that which he thought best to suit the interest of his employers and so to interfere with the trade and business of the other omnibus, the defend- ants were responsible : that the liability of the master depended upon the acts and conduct of the servant in the course of the service and employment ; and the instructions given to the defendants' driver, and read in evidence to the jur}', were immaterial if the defendants' driver did not pursue them ; but that if the true character of the act of the defendants' servant was, that it was an act of his own, and in order to effect a purpose of his own, the defendants were not responsible." The defendants' counsel excepted to the said ruling, for that the said Baron misdirected the jury in telling and directing them as aforesaid ; and, further, that, the learned Baron ought to have told the jury that, if the}' believed that the defendants' driver wilfully drove across the road as aforesaid, even for the purpose of merely obstructing the plain- tiff's omnibus, the defendants were not responsible, and he ought to have told and directed the jurj- that for an act wilfully done by the servant of the defendants against the orders of his employers contained in the said paper or card, even though at the time of doing it he was in the course of driving for his employers, the defendants were not respon- sible : that the learned Baron ought to have told the jury that there was no evidence to justif}' them in finding that the driver of the defend- ants' omnibus, in doing the act complained of, was acting in the course of his employment ; and he ought to have told them that there was no evidence to warrant them in finding for the plaintiff, and ought to have directed them to find their verdict for the defendants. The jury gave a verdict for the plaintiff, with £35 damages. Mellish {Matthews with him) now argued^ for the plaintiffs in 1 Before Wightman, J., Williams, J., Crompton, J., Willes, J., Byles, J, and Blackburn, J. — Rep. SECT. IJ.] LIMPUS V. LONDOxV GENERAL OMNIBUS CO. 173 error (the defendants below). The direetion of tlie learned Judge was erroneous. There was evidence that the defendants' driver wilfully and recklessly drove across the plaintiff's omnil>us for the purpose of impeding its progress. It is not contended that the fact of the servant having committed a wilful trespass necessarily, of itself, absolves the master from responsibilit}', but it is submitted that a master is not liable for a wilful trespass committed by his servant, unless it was done in obedience to the master's orders, or was within the scope of the servant's employment. Here the defendants' servant was employed to drive his omnibus, and if the wrongful act had been done in the course of that employment the defendants would be liable ; but they are not if the act was done by tlie servant for some purpose of his own. The learned Judge made it an essential part of his direction, whether the defendants' driver was doing that which he believed to be for the interest of his employer ; whereas the real question was whether the driver thought the act necessary for carrying out his masters' orders. The true rule is laid down in Croft v. Alison, 4 B. & Aid. 590 : " If a servant driving a carriage, in order to effect some purpose of his own wantonl}' strike the horses of another person and produce the accident, the master will not be lial)le. But if, in order to perform his master's orders, he strikes, but injudiciously and in order to extricate himself from a difficulty, that will be negligent and careless conduct, for wliich the master will be liable, being an act done in pursuance of the servant's employment." [Williams, J. If a driver in a moment of passion vindictively strikes a horse with a whip, that would not be an act done in the course of his employment ; but in this case the servant was pursuing the purpose for which he was employed, viz., to drive the defendants' omnibus. Suppose a master told his coachman not to drive when he was drunk, but he nevertheless did so, would not the master be responsible?] Here the defendants' driver recklessly and pnrposeh' obstructed the plaintiff's omnibus. That was not an act within the scope of his employment, and was contrary to the orders given to him by his master. If the action had been against the servant, it must have been in trespass, not case. [Blackburn, J. If the defendants' driver did the act to effect some purpose of his own, the case would fall within the latter part of the direction.] The doc- trine laid down in Croft v. Alison was recognized and adopted in Seymour v. Greenwood, 7 H. & N. 355. [Ckomptox, J. Was not the driver carrying out his masters' purposes in attempting to get before the other omnibus and pick up passengers?] He states that he drove across the plaintiff's omnibus to prevent it from passing him, and to serve the plaintiff's driver as the plaintiff's driver had served him. [WiGHTMAN, J. Would the master have been responsible if the servant had thought it for his master's interest to drive against the other omnibus and overturn it?] Lyons v. Martin, 8 A. & E. 512, decided that a master is answerable in trespass for damage occasioned by his servant's negligence in doing a lawful act in the course of his 174 LI.MPUS V. LONDON GENERAL OMNIBUS CO. [CHAP. IL service ; but not so if the act is in itself unlawful, and is not proved to have been authorized b}' the master. Here the servant wilfully did an act which he knew he had no right to do, and which he was instructed by his master not to do ; and it can make no difference that he believed it to be for the benefit of his master, since it was not within the scope of his employment. Ziush, for the defendant in error (the plaintiff below). The direc- lion was right. The true test is whether the servant, in doing the particular act, ceased to be the agent of his master, and did it solel}' for his own purposes. If the defendants' driver had wilfully driven against the other omnibus and overturned it, the jury could not have found that he did it in the course of his employment or for the benefit, or supposed benefit, of his master. The object of the defendants was to get as much traffic as the}' could on the road, and their driver, in doing the wrongful act, was attempting to carr}' out that object. [Cromptox, J. It was merely an act of wrongful driving.] Suppose the defendants had told their driver not to drive faster than seven miles an hour, but he did so, would not the defendants be liable for damage resulting from it? The defendants' driver drove across the other omnibus, not for an}' purpose of his own, but believing that it was for the interest of his masters to prevent that omnibus from passing him. [Williams, J. Suppose the driver of an omnibus saw a passenger waiting at a distance, and, in order to reach him before another omnibus, drove at full speed and thereb}' ran over a person, would not the master be liable?] Tlie fair meaning of the direction is that, if the defendants' servant did the wrongful act in order to effect an}' purpose of his own, they are not liable, but, if the act was done in the course of the employment or for the benefit of the defendants, they are responsible. That is directly within the principle laid down in Croft v. Alison, 4 B. & Aid. 590, and Seymour v. Greenwood, 7 H. & N. 355. The argument on the part of the defendants would limit the responsibility of a master to acts which are strictly within the authority of the servant. But a servant has a discretion intrusted to him by his master as to the pace and mode of driving. Lyons v. Martin, 8 A. & E. 512, merely decided that a master is not liable in trespass for a wilfully unlawful act of his ser- vant unauthorized by him. — He also referred to Kyle v. Jeffres, 3 Macq. 611. JfelUsh replied. Cur. adv. vult. The learned Judges having differed in opinion, the following judg- ments were now delivered. WiGiiTMAN, J. It appears by the evidence in this case that the defendants were the proprietors of an omnibus plying between the Bank and Hounslow, which at the time in question was driven by a coachman in their service ; that whilst upon the road, in the course of his employment to drive defendants' omnibus from Piccadilly to Kensington, he wilfully and on purpose, and contrary to the express SECT. II.] LIMPUS V. LONDON GENEKAL OMNIBUS CO. 175 orders of the defendants, wrongfully endeavored to hinder and obstruct the passage along the road of another omnibus belonging to the plain- tilt"; and for that purpose, he, who was ahead of the plaintiff's omnibus 80 or 100 yards, slackened his pace, until the plaintiff's omnibus came up to him and was about to pass, and he then purposely pulled across the road in order to prevent and obstruct his progress, and in so doing ran against one of the plaintiff's horses with his (the defendants') omnibus, thereby causing considerable damage. The reason assigned by the defendants' coachman for this wrongful proceeding was that he pulled across the plaintiff 's coaciiman to keep him from passing, in order to serve him (the plaintilf's coachman) as he had served him (the defendants' coachman). It seems clear upon the evidence that this was wholly a wilful and unjustiiiable act on the part of the defendants' coachman, and not in the lawful prosecution of his masters' business. A master is undoubtedly responsible for an}' damage occasioned b}' the negligence or carelessness of his servant whilst employed upon his master's business. In the present case it was no part of his employ- ment to obstruct or hinder tlie passing of other omnibuses or carriages, — on the contrary he was directed not to do so. The case appears to me to fall within the principle of the decision in the case of Croft v. Alison, 4 B. & Aid. 590, cited upon the argument. In that case the court said that the distinction was this: ''That if a servant driving a carriage, in order to effect some purpose of his own wantonly strikes the horse of another person and thereby jjroduccs an accident, the master is not liable. But if, in order to perform his master's orders, he strikes, but injudicioush' and in order to extricate himself from a difficultv, that will be negligent and careless conduct for which the master will be liable, being an act done in pursuance of the servant's employment." In the case of L3-ous v. Martin, 8 A. &. E. 515, Mr. Justice Patteson, in his judgment, says, " Brucker v. Fromont, 6 T. R. 659, and other cases, where the master has been held liable for the conse- quences of a lawful act done negligently by his servant, do not appl}-. Here the act was utterly unlawful. A master is liable where his servant causes injury by doing a lawful act negligently, but not where he wilfully does an illegal one," There are other cases, some of which were cited upon the argument, to the same effect. In the present case the defend- ants' coachman wilfully did an illegal act contrary to his masters' orders, and quite be3-ond the scope of his employment. In this view of the case, it appears to me that, if the evidence of the defendants' coachman was believed, as well as that of the other witnesses in the case, the verdict ought to have been for the defendants. The question, however, before us is whether the direction of the learned Judge to the jury, as it appears upon the bill of exceptions, was right in point of law upon the case as it appeared in evidence. I entertain the highest and most sincere respect for the opinion of my brother Martin, but it does 176 LIMPUS V. LONDON GENERAL OMNIBUS CO. [CHAP. IL appear to me that the mode in which the questions were put to the jury was such as might mislead them, and induce them to find a verdict which I cannot but think was wrong. He appears to have told them ''that if the act of the defendants' driver in driving as he did across the road to obstruct the plaintiff's omnibus, although a reckless driving on his part, was nevertheless an act (lone by him in the course of his service^ and to do that which he thought best to suit the interests of his employers and to interfere with (he trade and business of the other omnibus, the defendants were responsible ; and that the liability of the master depended upon the acts and conduct of the servant in the course of the service and employment, and that the instructions given to the coachman not to obstruct another omnibus or hinder or annoy the driver in his business were immaterial." It certainly appears to me that the wilfully or wrongfully attempting to obstruct the progress of another omnibus contrary to the express directions of the defendants, though done by their coachman whilst employed in the service of the defendants, cannot be considered an act done b}' him in the course of his service. It was quite beside the course of his service and what he was employed to do ; and I cannot consider the express prohibition to the coachman to do what he did as immaterial in considei-ing what was the course of his service in that respect. This was not a case of reckless or careless driving, but of wilfully and wrongfully attempting to obstruct the passage of another omnibus, and in so doing running against one of the horses. This cannot, I think, under the circumstances, be considered as an act done in the course of his service, even though the coachman might think that it was for his masters' interest bj- such wrongful means to obstruct the business of the other omnibus. The defendants' coachman was not employed to obstruct or hinder the plaintiff's omnibus, nor was it in the course of his service, in the proper sense, to do so. Upon the evidence it was entirelj' his own wrongful and wilful act, for which I think, according to the distinction taken in the cases to which I have referred, the defendants are not responsible. The jur}-, upon the direction to which I have referred, might well have thought that if the act was done during the time that the defendants' coachman's employ- ment was to drive their omnibus, and that he thought it for their benefit to obstruct the other omnibus, the defendants would be liable. This I think was wrong for the reasons I have given ; and I am therefore of opinion that there should be a trial de novo. Williams, J., said. — I am of opinion that the judgment ought to be affirmed. If a master employs a servant to drive and manage a carriage, the master is responsible for an}' misconduct of the servant in driving and managing it which must be considered as having resulted from the performance of the duty intrusted to him, and especially if he was acting for his master's benefit and not for any purpose of his own. I think that the summing up of my brother Martin was substantially in SECT. II.] LIMPUS V. LONDON GENERAL OMNIBUS CO. 177 accordance with that doctrine, and therefore there is no foundation for the bill of exceptions. Crompton, J., said. — I must confess that ray mind has altered in the course of the discussion. At first I was inclined to the opinion which m}' brother Wightman has expressed, but my present impression is in favour of the view of my brother Williams^ that the injury resulted from an act done in the course of the driving and management of the omnibus. I do not follow ray brother Wightman in one respect (for which however he has the authority of Patteson, J., in Lyons v. Martin, 8 A. & E. 515, as to its being necessary that the act done by the ser- vant should be a lawful act, for later cases sliow that the act need not be lawful in order to fix the master with responsibility ; but my doubt has been whether this was an act done within the scope of the driver's authorit}-, in other words, whether he was acting in the course of the driving or management of the omnibus. It appears by the evidence of the driver that he was driving the defendants' omnibus in an improi)er way, for, without intending to touch the horses of the plaintiff's omnibus, he drove so near to it, for the purpose of keeping it from passing him, that he caused the accident. It is not necessary to say what vvould have been the case if the driver had used the omni- bus so as to block up the road ; as it is, I cannot see that the direction of my brother 3Iartin was necessaril3' wrong. If the matter had come before us on a motion for a new trial, it ma}' be that I should have agreed with nn- brother Wightman, for the question might have been presented in such a wa}' as to bring it more clearlv before the jury, and it is possible that some expressions of the learned Judge may have led them to a wrong conclusion. But the question now is, whether any of the exceptions show that the learned Judge was wrong in point of law. Throughout his summing up he left it to the jur^' to sa^- whether the injurv resulted from an act done bv the driver in the course of the service and for his masters' purposes. That is the true criterion ; and I cannot see anything necessarilv wrong in the ruling of my brother Martin. Therefore, though with considerable doubt, I do not think that we ought to reverse the judgment of the Court below. WiLLEs, J., said: I am of opinion that the judgment of the Court below ought to be affirmed. The direction of va\ brother JIartin was in accordance with principle and sanctioned bj' authority. It is well known that there is virtually no remed}' against the driver of an omni- bus, and therefore it is necessary that, for injur}- resulting from an act done by him in the course of his master's service, the master should be responsible ; for there ought to be a remed}- against some person capable of paying damages to those injured by improper driving. This was treated b}- ni}- brother Martin as a case of improper driving, not a case where the servant did anything inconsistent with the discharge of his duty to his master, and out of the course of his employment. The defendants' omnibus was driven before the omnibus of the plaintiff, in order to obstruct it. It may be said that it was no part of the duty of 12 178 LIMPUS V. LONDON GENERAL OMNIBUS CO. [CHAP. IL the defendants' servant to obstruct the plaintiff's omnibus, and more- over the servant had distinct instructions not to obstruct an}' omnibus whatever. In my opinion those instructions are immaterial. If dis- obeyed, the law casts upon the master a liabilit}' for the act of his servant in the course of his employment ; and the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liabilitj'. Therefore, I consider it immaterial that the defendants directed tlieir servant not to do the act. Suppose a master told his servant not to break the law, would that exempt the master from responsibility for an unlawful act done by his servant in the course of his employment? But there is another construction to be put upon the act of the servant in driving across the other omnibus ; he wanted to get -l^efore it. Tliat was an act done in the course of his employment. He was employed not onl}' to drive the omnibus, which alone would not support this summing up, but also to get as much money as he could for his master, and to do it in rivahy with other omnibuses on the road. The act of driving as he did is not" inconsistent with his employment, when ex- plained by his desire to get before the other omnibus. I do not speak without authority when I treat that as the proper test. Take the ordi- nar}' case of a master of a vessel, who it must be assumed is instructed not to do what is unlawful but what is lawful, if he has distinct instruc- tions not to sell a cargo under any circumstances, but he does so under circumstances consistent with his duty to his master, the master is liable in damages to the person whose goods are sold. It appears to me that the summing up is in accordance with the principle that a master is liable for acts done by his servant in the course of his employment. It is also consistent with authority. I need onlj' refer to the authority of Lord Holt in Tuberville v. Stampes, 1 Ld. Rayra. 264, and of Lord Wensleydale in Huzzey v. Field, 2 C. M. & R. 432. It is part of the history of the law that the judgment in Huzzey V. Field, although delivered b}' Lord Abinger, was prepared b}' Lord Wensleydale. That learned person there laid down that the proper question is whether the servant was acting at the time in the course of his master's service, and for his master's benefit ; if so, his act was that of his master, although no express command or privity of his master was proved. It seems to me that in so laying down the law he was strictly accurate ; and I feel bound to say that it is for the interest of every person (for all are liable to be injured by servants), that he should not be without remedy b}- the law being loosely administered. I entertain no doubt that the direction was correct, and that the judg- ment ought to be affirmed. Byles, J., said. — I am also of opinion that the direction of my brother JIartin was correct. He used the words " in the course of his sen'ice and employment," which, as my brother WiUes has pointed out, are justified by the decisions. The direction amounts to this, that if a servant acts in the prosecution of his master's business for the benefit SECT. II.] LIMPUS V. LONDON GENERAL OMNIBUS CO. 179 of his master, and not for the benefit of himself, the master is liable, although the act may in one sense be wilful on the part of the servant. It is said that what was done was contrary to the master's instruc- tions ; but that might be said in ninety-nine out of a hundred cases in which actions are brought for reckless driving. It is also said that the act was illegal. So, in almost every action for negligent driving, an illegal act is iujputed to the servant. If we were to hold this direction wrong, in almost every case a driver would come forward and exaggerate his own misconduct, so that the master would be absolved. Looking at what is a reasonal)le direction, as well as at what has been already decided, I think this summing up perfectly correct. Blackburn, J., said. — I am also of opinion that the direction of the learned Judge was sufficiently correct to afford the jury a guide in the particular case, which is all that is required. It is admitted that a master is responsible for the illegal act of his servant, even if wilful, provided it was within the scope of the servant's employment, and in the execution of the service for which he was engaged. That the learned Judge told the jury, and perfectly accurately, but that alone would not be enough to guide them in coming to a correct conclusion. It was necessary that the jury should understand the principles which they must apply in order to ascertain whether the act was done in the course of the servant's employment. It is upon that part of the sum- ming up that INIr. 3Iellish has mainly pointed his argument, saying that it gave the jury a wrong guide. Now, we nnist look at what the particular employment was, in order to see what was understood by the jury. The defendants' servant was the driver of an omnibus, and as such it was his duty, not only to con- duct it from one terminus to another, but to use it for the purpose of picking up traffic during the course of the journe}'. He drove across another omnibus under circumstances from which the ]\\vy might have thought that it was done for the purpose of wreaking his spite against the driver of that omnibus. The learned Judge, having to tell the jury what was the test by which the}' were to determine whether the act was done in the course of the service or not, used language in which he tells them, perfectly rightly, that if the act was done in the course of the service the defendants were responsible ; and he goes on to sa}', " that if the jurv believed that the real truth of the matter was that the defendants' driver, being dissatisfied and irritated with the plaintifl^'s driver, whether justly or unjustly, by reason of what had occurred, and in that state of mind acted recklessh', wantonly, and impro^Derly, but in the course of his service and employment, and in doing that which he believed to be for the interest of the defendants, then the defendants were responsible for the act of their servant." No doubt what Mr. 3IelUsh said is correct : it is not universally true that ever}' act done for the interest of the master is done in the course of the employment. A footman might think it for the interest of his master to drive the coach, but no one could say that it was within the scope of the foot 180 MURPHEY V. CARALLI. [CHAP, II. man's employment, and that the master would be liable for damage resulting from the wilful act of the footman in taking charge of the horses. But, in this case, I think the direction given to the jury was a sufficient guide to enable them to say whether the particular act was done in the course of the emplo3'ment. The learned Judge goes on to say that the instructions given to the defendants' servant were imma- terial if he did not pursue them (upon which all are agreed) ; and at the end of his direction he points out that, if the jury were of opinion " that the true character of the act of the defendants' servant was that it was an act of his own and in order to effect a purpose of his own, the defendants were not responsible." That meets the case which I have alread}' alluded to. If the jury should come to the conclusion that he did the act, not to further his masters' interest or in the course of his employment, but from private spite, and with the object of in- juring his enem}', the defendants were not responsible. That removes all objection, and meets the suggestion that the jurj' may have been misled by the previous part of the summing up. Under these circumstances, I think that the direction given by the learned Judge was sufficiently accurate to guide the jury in coming to a right conclusion, and that there ought not to be a trial de novo. Judgment affirmed. MURPHEY y. CARALLI. Exchequer. 1864. [3 //. ^ C. 462.] 1 The first count of the declaration (which was the count relied on) stated that the defendant so carelessly, negligently, wrongfuU}', and improperly placed a pile of cotton bales in a certain cotton shed or warehouse, that by and through the mere carelessness, negligence, wrongful and improper conduct of the defendant in that behalf the same fell upon the plaintiff, who was then lawfulh' engaged and work- ing in the said cotton shed or warehouse, and inflicted on him bodily injuries, and the plaintiff thereby became ill, «S:c. Plea, — Not guilt}'. Issue thereon. At the trial, before the Assessor of the Court of Passage for the bor- ough of Liverpool, the following facts were proved on behalf of the plaintiff: The defendant was a Liverpool cotton merchant, and he and another firm of cotton merchants (Messrs. Dixon & Co.) had re- spectively caused some bales of cotton to be stored in the same ware- house. The plaintiff having been employed by Messrs. Dixon & Co. to recanvass their bales, went to the warehouse, and while engaged in re- canvassing Messrs. Dixon & Co.'s bales received the injuries for which 1 The arguments of counsel are taken from the report in 34 L. J. n. s. Ex. 14. — Ed SECT. II.] MUliPHEY V. CARA.LLI. 181 this action was brought IVom the fall of one of the defendant's bales. The defendant's bales liad been stored some days before the accident by cotton porters in the defendant's employ, under the superintendence of one Jones, the warehouse keeper employed by the owner of the ware- house. From the evidence of Jones it appeared that it was his duty to see the bales piled properly, and that those who piled the bales were bound to obe^' his directions. He further stated that when the pile was not made properly at first, he was in the habit of pulling it down and ordering it to be replied. Evidence was also given that, at the time when the defendant's bales were piled, they were not properly secured so as to prevent them from falling. It was not disputed that the cotton porters were workmen who understood the mode in which bales ought to be piled. The charges for warehouse room were at a given price per bale, no exclusive space in the warehouse being allotted to the different merchants. The learned Assessor, being of opinion that on this evidence it appeared that the act which caused the mischief was the act of the warehouse keeper, directed a nonsuit to be entered. Littler, on a former day in this Term, obtained a rule nisi for a new trial, on the ground that there was evidence for the jury of negligence in the defendant's servants, and that the employment of a warehouse- man under such circumstances did not protect the defendant ; against which, C. -Russell appeared to show cause, contending that, as the damage was done by a person not under the defendant's control, and the defend- ant was not the owner of the warehouse or any part of it, but only of some bales which were stowed there, the nonsuit was right. Littler, being called on by the Court to support his rule, cited the case of The Mobile, Swa. Adm. Rep. 127, where it was held tliat the owners of a vessel in charge of a licensed pilot are not exempted by the Merchant Shipping Act from liability for damage caused by the vessel, unless the pilot was exclusively to blame, and there was no blame attributable to the master and crew ; and contended that the porters who packed the cotton were the defendant's servants, and that there was negligence on their part as well as on that of the warehouse keeper. [Bramwell, B. Is the master responsible for the negligence of his servants when they act under another person who is not his servant, but whom they are bound to obey?] Yes. The plaintiff here never touched the bales that fell, and there was no contributory negligence on his part. Had they fallen while being piled, the defendant would clearly have been liable. The warehouse keeper was for this particular service the servant of the owner of the cotton ; and if the bales had fallen on one of the defendant's men while engaged in piling, it would have been said that he and the warehouse keeper were fellow-servants. It was no part of the warehouse keeper's duty to direct where the passers-by were to go. He had only to direct where the bales were to be stowed. He cited Martin v. Temperley, 4 Q. B. 298, and 182 MURPHEY V. CARALLI, [CHAP. II. Raiulleson v. Murray, 8 Ad. & E. 109, in which lattei case a ware- hoiiscuum who had engaged a master-porter to move a barrel was held liable for injury arising from the negligence of the men employed and the falling of the tackle used by the master-porter. Pollock, C. B. I am of opinion that the nonsuit in this case was correct, and that this rule should be discharged. Jones was eniployed as warehouse keeper by the owner of the warehouse, and as such had control over the warehouse itself and also over the entrance to it. "When bales were stowed the3' were stowed under Jones's directions, and by his orders restowed if not stowed properly at first. The bales which caused the mischief having been stowed under Jones's directions, I think that he and his master are alone responsible. The case of Ran- dleson v. Murray, 8 A. & E. 109, seems at variance with the current of authority, but it certainly establishes no principle for constraining us to hold this defendant liable. Bramwell, B. I also think the nonsuit right. I assent, indeed, to Mr. Littler s argument, that the men employed by the defendant, while engaged in piling the bales, were his servants so as to render him re- sponsible for their acts. And if, while they were so engaged, there had been an}* negligence on their part with reference to an}' person lawfully passing by, I think the defendant would be liable. The question may, therefore, be treated as if the defendant had piled the bales himself. But suppose he had piled the bales, would he be liable? I think not. For in that alone there would have been nothing dangerous without the subsequent act of the warehouse keeper in permitting persons to approach the bales. Suppose the defendant had been present, and had pointed out to the warehouse keeper that tlie mode in which the bales were piled was dangerous. The warehouse keeper might surely have replied that that was his business, and that he would take the necessary steps to prevent any one coming near the bales. If from his subsequent omis- sion to do so any mischief had occurred, the defendant would not be responsible for that mischief. Take this case. A. delivers at B.'s house goods which, from their nature, cannot at once be taken in. B. says: " Put them down in the highway, I will remove them directly, and will see that in the mean time no one runs against them." A. com- plies. The goods remain out all night, there is no light, and some one is injured. Who is responsible? B., the owner of the house, and not A., for though A.'s act be wilful it would not be dangerous without B.'s subsequent negligence. So here the defendant is not responsible for an act which would have produced no mischief without the warehouse keeper's subsequent negligence. If, indeed, the negligence were of a covert kind, so as to be less obvious to the warehouse keeper than to the men engaged in piling the bales, that might be a different case. For the warehouse keeper might then have no notice of the danger, and so the mischief might occur without an}* subsequent wrongful act on his part. But here the danger was at least as patent to the warehouse keeper as to the men ; and the men were acting under his control, and SECT. II.] CHAPMAN V. NEW YORK CENTRAL RAILROAD CO 183 the act in itself would not have caused the mischief. The warehouse keeper is liable, if any one. Channell, B. I agree that this rule should be discharged ; and the ground of my opinion is that the act, of which the plaintiff complains, must be taken to have been done under the direction of the warehouse keeper. No personal negligence is imputed to the defendant ; and, if he be liable at all, it must be on the ground that the act complained of was done by his servants. Now, I agree with my Lord as to the extent of the wareh'ouse keeper's duties ; and, indeed, that he had a right to control the mode in which the bales were packed is not dis- puted. We mu.st presume he was attentive to his duties, and that what was done was with his approval. Consequently it must be taken to have been done under his direction. I think, therefore, that although, for certain purposes, the cotton porters were the defendant's servants, and although their duties did not terminate on depositing the bales in the warehouse but continued in the packing, yet in that proceeding, and in the negligence which then took place, they were not acting as ser- vants of the defendant, but as the servants of the warehouse keeper and the owner of the warehouse. PiGOTT, B. I agree, upon the grounds stated by m}' brother Chminell. If the warehouse keeper, instead of controlling the mode in which the bales were packed, had let a certain space in the ware- house to the defendant, that would be a different case. There would then be a duty in the person sent to deposit the goods to deposit them carefully, and if he fiiiled in that duty, the defendant who had appointed him might reasonably be held responsible. But where the person sent with the goods stows them under the control of a warehouse keeper, and is allowed to exercise no discretion as to the mode of stowage, the sender is not responsible, for he is guilty of no neglect of duty. Hide discharged. CHAPMAN, Respondent, v. NEW YORK CENTRAL RAIL- ROAD COMPANY, Appellant. Court of Appeals of New York. 1865. [33 N. Y. 369.] Campbell, J. The plaintiff brought this action to recover damages caused b}- the alleged negligence of the defendant in leaving down bars in the fence on the side of their railroad track, wherebj- the horses of the plaintiff in the night time escaped from his adjoining field on such track, and were struck and killed b}' a passing engine of the defendant. One Andrew Ryan, who was then and had been for some time in the employment of the defendant as a da}' laborer, receiving his pay monthly-, but at a fixed rate for each day's labor, on the night of the 184 HOWE V. NEWMARCH. [CHAP. H. accident took down the bars for the purpose of passing with a team, being engaged at the time in a business which concerned himself, and in which the defendant had no interest vvliatever. The bars were left down by K\an, and through the opening the horses passed on to the track and were killed. The referee, before whom the cause was tried, found that while Ryan was thus in the emplo}- of the defendant as a day laborer, it was understood in virtue of that employment, that he might be called upon in case of accident to perform extra labor, receiv- ing compensation therefor, and if, at any time after his day's labor was over he saw anything amiss, he was required to give necessary- atten- tion to it without being specially directed so to do. In the language of Ryan, who was examined as a witness, " If I seen anything amiss after that, I had to do it." The referee found that under that employment it was the duty of Ryan as the servant of the company to replace the bars, and that his negligence was that of the company, and he reported in favor of the plaintiff, and the judgment was affirmed in the seventh district. Jf the bars had been taken down by others, and Ryan, occupying the relation he did to the compan}', had seen them, or had been notified, there can be no doubt but it would have been his duty at once to have put them up. That he took them down himself can make no difference. The neglect of duty was in leaving them down. For that negligence, and which caused the loss of the plaintiff's horses, I think the company must answer in damages. That Ryan was intoxicated at the time was the misfortune of the compan}-. That he had been retained in his place when known to be intemperate, was the fault of his immediate superior officers. But I am unable to see how this question of intoxi- cation in any way affects the legal rights of the plaintiff, who seeks simply to recover for the loss of his property', caused by the neglect of the defendant's servant. The judgment should be affirmed. Judgment affirmed. HOWE V. NEWMARCH. Supreme Judicial Court op Massachusetts. 1866. [12 Allen, 49-1 Tort to recover damages sustained b}' reason of the negligence of the defendant's servant, in driving against the plaintiff in Cambridge. At the trial in the Superior Court, before Vose, J,, it appeared that the defendant was a baker and employed William S. Brown to drive his wagon and deliver bread to his customers. There was a city ordi- nance prohibiting riding or driving upon any sidewalk in Cambridge. The plaintiff introduced evidence tending to show that on the morning of July 9th, 1857, he came upon a sidewalk in Cambridge, in front of a SECT. II.] HOWE V. NEWMARCH. 185 house owned bj' him, and turning to walk upon it he saw the defend- ant's horse and wagon upon the same sidewalk, in front of another house near by, and facing towards him ; that he proceeded on the side- walk till he got witiiiu some twelve feet of the horse, when Brown came out from tliat house prett}' fast, threw his basket upon the wagon, and jumped to get on the seat, and the horse started, and the plaintiff turned round to escape, when the horse struck him and he was thrown down and injured. The defendant introduced evidence tending to show that, on the day before the one referred to above, the plaintiff had told lirown not to drive on the sidewalk in front of his premises, and they then had some dispute together, and, on the morning of Juh' 9, when Brown came out from the house, the plaintiff stood leaning against the fence, and, as soon as the horse started, the plaintiff walked across the sidewalk and caught him by the bridle and pulled him in towards the fence, and Brown jumped off and told the plaintiff to let go of the horse, which he did, and Brown got in and started again, and as he began to turn the horse into the street the plaintiff took hold of him again, and Brown again told him to let go, and the plaintiff did not let go, and Brown, after again telling the plaintiff to let go, started the horse, and the plaintifT, who still held on to the bridle, was thrown down. There was no evidence that the defendant knew of Brown's habit of driving on the sidewalk, or had ever given directions where he should drive. The plaintiff requested the court to instruct the jury as follows : " 1. If the jur}' are satisfied that the defendant's servant, with his team, met the plaintiff on the sidewalk adjoining the plaintiffs prem- ises, and neither of them would give the road, and the defendant's servant insisted on proceeding on the sidewalk, and a contest ensued in which the servant urged on his team, by means of which the plaintiff sustained an injurv, a verdict should be rendered for the plaintiff, unless the injur}' resulted from want of due care on the part of the plaintiff. 2. If at the time of the injury the defendant's servant was engaged in the business of the defendant, and within the scope of his duty as such servant, and he drove the horse over the plaintiff and did him an injury, the defendant is responsible, whether the act was done wilfulh' or neg- ligentl}', the plaintiff being in the exercise of due care himself." The judge declined to give the instructions prayed for, but did instruct the jury that, " if they were satisfied that the defendant's ser- vant, with his team, met the plaintiff on the sidewalk adjoining the plaintiffs premises, and neither of them would give the road, and the defendant's servant insisted on proceeding on the sidewalk, and a con- test ensued in which the defendant's servant carelessh" or negligently, but without the purpose or intention of driving against the plaintiff or doing him an injury, urged on his horse, by means of which the plain- tiff sustained an injury, a A-erdict should be returned for the plaintiff, unless the want of due care on the part of the plaintiff contributed to the injur}'. And if Brown, while acting as the sen-ant of the defendant 186 HOWE V. NEWMARCII. [CHAP. II. in driving from house to house and deUvering bread, wilfully and intentionally drove the horse upon the plaintiff for the purpose of car- rying out liis wish to drive unlawfully upon the sidewalk opposite the plaintiffs house, notwithstanding the remonstrance of the plaintiff, and thereby caused the injury complained of, and he did this without any previous direction or authority from the defendant, then the defendant is not responsible for such wrongful act of his servant." The jury returned a verdict for the defendant, and the plaintiff alleged exceptions. C. II. Hudson {A. Cottrell with him), for the plaintiff. S. J. Thomas^ for the defendant. Hoar, J. The second instruction requested by the plaintiff at the trial, that "if at the time of the injury the defendant's servant was engaged in the business of the defendant, and within the scope of his duty as such servant, and he drove the horse over the plaintiff and did him an injury, the defendant is responsible, whether the act was done wilfully or negligently, the plaintiff being in the exercise of due care himself," seems to have been stated with substantial accuracy. It makes the test of the defendant's liability, not the intention of the ser- vant, but the fact that the injurious act was done while engaged in his master's business, and within the scope of his duty as a servant. If the act of driving over the plaintiff was done wilfully, still it may also have been done negligently in the view of the law ; that is, in disregard of the plaintiff's rights, and neglect and omission of the precautions necessary- to his safety-. It is obvious that the test of the master's lia- bility cannot be whether the servant is a trespasser ; for he who uses force upon the person or property of another is a trespasser, whether his violence be accidental or intentional, if it is without lawful justifi- cation. But if the servant is strictly within the scope of his employ- ment, doing his master's work, and, for the purpose of doing what he is employed to do, does it in a manner which violates the rights of another, it is difficult to see wh^- the master should be exempted from responsi- bilit}', because the servant knows th.at his act will be injurious, and intends to do it. If the consent of the master is made the ground of his liabilit}', the master is no more consenting to the thoughtless negli- gence of his servant than to his wilful negligence. The authorities all agree that, where an action is brought against the master for an injury occasioned by the servant's negligence in his service, it is no defence to show that the master directed the servant to be careful ; or even that he cautioned him against the particular act of negligence which produced the injur}-. Southwick v. Estes, 7 Cush. 385. The act which causes the injury ma}' be precisely the same, whether merely careless or intentional, and the authority of the master wanting as much in one case as in the other. Thus, if a servant driving his master's carriage becomes entangled in a crowd of other carriages, and is impatient to drive on, and there is not room to pass with safety, and reasonable care and prudence would require him to wait ; but he per- SECT. II.] HOWE V. NEWMAKCH. 187 sists in driving on, and in so doing strikes another carriage ; this is negligence for which the master is responsible. Is the master's respon- sibility at an end if it is shown that the servant saw that he should strike the other carriage, and intended to extricate himself by so doing? He is in his master's employment in the one case as in the other. If his master has directed him to drive carefully, he is in each case alike acting without his master's authority or approval. His purpose in each case ma}' be to do his master's work which he is employed to do. In the former, be does not think of or care for the rights of the other party, and so is neghgent. In the latter, he perceives and understands the riglits of the otiier party, but determines to disregard tliem. It is not easy to reconcile the numerous cases on this subject. The leading case on which the defendant relies is M'Manus v. Crickett, 1 East, lOG. That case merely decided that trespass vi et arrtiis would not lie against a master for the wilful trespass of his sei'vant, which was not autliorized or consented to by the master, either dlrecth- or by implication from the nature or subject matter of his employment. The decision rests entirely upon the distinction between trespass and tres- pass on the case. Lord Kenyon says that " when a servant quits sight of the object for which he is employed, and, without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authoritv given him, and, accord- ing to the doctrine of Lord Holt, his master will not be answerable for such act." But he adds that " this doctrine does not at all militate with the cases in which a master has been holden liable for the mis- chief arising from the negligence or unskilfulness of his servant wlio had no purpose but the execution of his master's orders ; " but that the form of such action must be case and not trespass. There is nothing in the opinion which bears upon the intermediate case of a servant who does not "quit sight of the object for wliich lie is employed," but for the purpose of executing his master's orders, and in the course of his emplo3'ment does an act injurious to another, or in disregard of his rights. The case of Savignac r. Roome, 6 T. R. 125, and Ogle v. Barnes, 8 T. R. 188, turned upon the same distinction between tres- pass and case. M'Manus v. Crickett has been recognized as an authority in this Commonwealth in Foster v. Essex Bank, 17 Mass. .510; which was an action against the bank for the amount of a special deposit in gold which had been stolen from the vault by the cashier or chief clerk. The bank was held not liable for the loss. The court state the general rule to be, " that to make the master liable for any act of fraud or negligence done bv his servant, the act must be done in the course of his employment ; and that if he steps out of it to do a wrong, either fraudulenth' or felonious!}', towards another, the master is no more answerable than any stranger." In Lyons v. Martin, 8 Ad. & El. 512, the master had employed his servant to distrain horses damage feasant in his close ; and it was held that he was not answerable in trespass 188 HOWE V. NEWMARCH. [CHAP. IL for the act of his servant in driving the plaintiffs horse from the high- way into tlie close in order to distrain him, as not being an act done by the master's authority, or in the course of the servant's employment. In Richmond Turnpike Co. r. Vanderbilt, 1 Hill, 480, it was held that the owner of a steamboat is not responsible in an action on the case, for the wilful misconduct of the master in running her against and injuring another boat. And in Wright v. Wilcox, 19 Wend. 843, it was decided that if the act of the servant was wilful, although in the performance of his master's business, the master is not responsible in an action on the case, because " the law holds such wilful act a depart- ure from the master's business." This distinction has not been approved by several of the text writers. It is questioned b}' Judge Ileeve in his treatise on the Domestic Rela- tions, 357, 358; in Redfield on Railway's, 384, note; and is stated with some qualifications in Smith on Master & Servant, 1 72 et seq. In Croft V. Alison, 4 B. & Aid. 590, the Court of King's Bench say that "the distinction is this: if a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person, and produce the accident, the master will not be liable. But if, in order to perform his master's orders, he strikes, but injudiciously, and in order to extricate himself from a difficult}', that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant's employment." The case showed that the defendant's servant had wilfully struck the plaintiff's horses, when driving his master's carriage, in order to extricate himself from an entanglement of the carriages occasioned bj* his own fault, and thereby had caused an injur}' to the plaintiff's carriage ; and a verdict for tlie plaintiff was supported. The action was case for negligence. In Seymour v. Greenwood, 6 Hurlst. & Norm. 359, Chief Baron Pollock asks the question, " Suppose a servant driving along a road, in order to avoid a danger intentional!}' drove against the carriage of another, would not the master be responsible?" And in Limpus v. London General Omnibus Co., 1 Hurlst. «fe Colt. 526, it was decided in the Exchequer Chamber that the master is responsible if the servant is in the course of doing the master's work, and does the act to accom- plish it. Wherever there is a contract between the master and another person, the master is responsible for the acts of his servant in executing the contract, although the act is fraudulent, and done without his consent. So far the authorities are uniform. And this court has held the master answerable as a trespasser, where the servant committed a trespass in the course of his employment, and the business in which he was em- ployed implied the use of force or violence to the persons or property of others, although the trespass consisted only in the use of force excessive in degree. Moore v. Fitchburg Railroad, 4 Gray, 465 ; Hewett V. Swift, 3 Allen, 420. The instructions asked b3^ the plaintiff at the trial were refused ; and SECT. II.] HOWE V. NEWMARCH. 189 the court instructed the jury that if the defendant's servant carelessly or negligently, but without the purpose or intention of driving against the plaintiff, urged on his horse, and so injured him, the defendant would be answerable; but that if the servant, "while acting as the servant of the defendant in driving from house to house and delivering bread, wilfully and intentionally drove the horse ujjon the plaintiff for the purpose of carrying out his wish to drive unlawfully upon the side- walk opposite the plaintiff's house, notwithstanding the remonstrance of the plaintiff, and thereby caused the injury- complained of, and he did this without any previous direction or authority from the defendant, then the defendant was not responsible." The objection to the latter branch of the instruction is, that it gives the jury no guide for their action in case they should find that the ser- vant was within the scope of his employment, and was intending to do his master's work ; and that his intention to drive against the plaintiff was only as a means of doing it. We think that, upon the facts reported, the jury might have been satisfied that the servant's driving on, though intentional, was not merelj' for the purpose of injuring the plaintiff. lie was already upon the sidewalk, and may have wished to go on for the purpose of continuing his journey, and delivering bread to his master's customers, although he saw that in so doing he should drive against the plaintiff, who was resisting his progress. lie would not then have been acting for a purpose of his own, losing sight of the object for which he was employed. With the views we have taken of the law, we think the instructions given were defective, and that they did not fully supplv the rule which the case required. The rule may be stated thus : The master is not responsible as a trespasser, unless by direct or implied authority to the servant he consents to the wrongful act. But if the master give an order to a servant which implies the use of force and violence to others, leaving to the discretion of the servant to decide when the occasion arises to which the order applies, and the extent and kind of force to be used, he is liable, if the servant in executing* the order makes use of force in a manner or to a degree which is unjustifiable. And in an action of tort in the nature of an action on the case, the master is not responsible if the wa'ong done b}' the servant is done without his author- ity, and not for the purpose of executing his orders or doing his work. So that if the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending b}- his act to execute it, does an injury to another not within the scope of his employment, the master is not liable. But if the act be done in the execution of the authorit}' given him b}' his master, and for the pur- pose of performing what the master has directed, the master will be responsible, whether the wrong done be occasioned bj' negligence, or b}' a wanton or reckless purpose to accomplish the master's business in an unlawful manner. Tt is not certain that the point to which the exceptions apply was 190 WOOD V. COBB. [chap. II. essential to the decision of the case. If the plaintiff's evidence were believed, it would seem to be a case of negligence for which the jury were instructed that the master would be responsible. If the defend- ant's evidence were entitled to credit, the plaintiff could hardl}^ have recovered, by reason of the want of ordinary care on his own part. But we cannot judicially know what view the jur}- ma}' have taken of the evidence ; and the ruling of the court appearing to be defective, there must be a new trial. Exceptions sustained.^ WOOD V. COBB. Supreme Judicial Court of Massachusetts. 1866. [13 Allen, 58.] Tort to recover damages for a personal injury, received in conse- quence of the neglect of the defendants' servant, in driving against the plaintiff. At the trial in the Superior Court, before Morton, J., there was evi- dence tending to show that while the plaintiff was walking in a highway in Worcester a wagon was driven against him by a boy named Wheeler ; that Wheeler was employed by the defendants, Cobb & Atwood, who were dealers in fish, and the wagon had just left their place of business loaded with their fish. Thomas R. Foster, a truckman, testified that the defendants em- ployed him to deliver all their parcels of fish every Friday to their customers, for the sum of one dollar ; that he received the parcels in baskets, labelled where to go ; that he took whatever route he chose, and suited his own accommodation ; that at the time of the accident he had been sick several weeks and confined to his house; that he thought he told Pierce, his boj-, to get some help if necessary' ; and that on the day of the accident he told Pierce to take the team up and tell the defendants they could have it if they wanted it. Pierce testified that Foster had two teams ; that on the day of the accident " Foster told me to ask Mr. Cobb if his boy could drive for me. I saw Wheeler, and asked him if he could drive for me. He said he did not know, must ask Mr. Atwood. Went in and asked Mr. Atwood if he could drive for me that morning. He said he might. He took the light team. At other times while Foster was sick, I had help elsewhere." Pierce and Atwood testified to substantially the same facts. The judge instructed the jury that, if they believed the evidence of 1 Ace. : Wallace v. Navigation Co., 134 Mass. 95 (1883) ; Texas & P. Ry. Co v Scoville, 62 Fed. R. 730 (C. C. A., Fifth Circuit, 1894). —Ed. SECT. II.] I'OULTON V. LONDON' AND SOUTH-WESTERN RY. CO. 191 these witnesses as to what took place at the defendants' shop, the plaintiff could not recover ; and tlie jury returned a verdict for the defendants. The [)lainti(r alleged exceptions. /-*. J^. Aldrich ' may be said to be agents of the owner ; but the}- are not in an\- sense his servants. The}- are not put in his place to do an act which he intended to do for himself. I apprehend it to be a clear rule, in ascertaining who is liable for the act of a wrong-doer, that 3'ou must look to the wrong-doer himself or to the first person in the ascending line who is SECT. II.] MURRAY V. CUKRIE. 209 the employer and has control over the work. You cannot go further back, and make tlie employer of that person liable. Tlie question here is, whether Davis, who caused the accident, was employed at the time in doing Kennedy's work or the ship-owner's. It is possible that he might have been the servant of both ; but the facts here seem to me to negative that. The rule, out of which this case forms an exception, that a servant or workman has no remedy against his employer for an Injury sustained in his emplo}" through tlie negligence of a fellow- servant or workman, is subordinate to another rule, and does not come into operation until a preliminary condition is fulfilled ; it must be shown that, if the injur}- had been done to a stranger, he would have had a remed}' against the person who employed the wrong-doer. Here, I apprehend, the defendant would not have been liable to the charterer if the wrongful act of Davis had caused damage to any part of the cargo ; and for this simple reason, that the person doing the work in the performance of which the damage was done was not doing it as his servant. He was acting altogether independent of his control. The defendant could not have taken him away from the work. It was Kennedy's work that he was eraplo^'ed upon, and under Kenned^-'s control. The liability of a master for the acts of his servant extends only to such acts of tlie servant as are done by him in the course of the master's service. The master is not liable for acts done by the servant out of the scope of his duty, even though the master ma}' have entered into a bargain that his servant should be emplo^'ed b}- another, and is paid for such service, as was done here. It seems to me to be quite plain that the defendant incurred no liabilitv for the act of Davis. Montague Smith, J. I am of the same opinion. Applying all the usual tests, the defendant was not the master of Davis in doing the work in the course of which the injuiT w'as received b^* the plaintiff. He was not the immediate principal of Davis, but Kenned}', who was an independent contractor as stevedore to unload the vessel, was. In order to perform his contract, it was necessary for Kennedy to emplo}' a number of laborers. He selected them. Some of them were persons unconnected with the ship. Others were part of the crew of the vessel, emploj-ed at the request or upon the recommendation of the defendant or the master. But, though he employed them upon that recommendation, it was competent to Kenned}' to reject their services. It follows, therefore, not only that Kenned}' was the immediate prin- cipal for whom the work was done, but also that he was the employer of Davis, and the entire controller of the labor of those whom he em- ployed. An ambiguity was sought to be raised from the circumstance of Davis being one of the crew ; but he was employed under an arrange- ment by which his wages for the time were to be ultimately paid by Kennedy. I entirely agree with the rest of the court that Davis was the servant of Kennedy and not of the defendant, and was subject only to Kennedy's orders, and consequently that the defendant is not liable. U 210 LAWRENCE V. SHIPMAN. [CHAP. II. Brett, J. The ordinary contract and liability of a stevedore is well established ; and the only question here is whether there was any- thing in the evidence to take the case out of the ordinary rule. The only circumstance relied on for that purpose is that the defendant placed the services of Davis at the disposal of the stevedore. But I apprehend it to be a true principle of law that, if I lend ray servant to a contractor, who is to have the sole control and superintendence of the work contracted for, the independent contractor is alone liable for any wrongful act done by the servant while so employed. The servant is doing, not my work, but the work of the independent contractor. Mule absolute. LAWRENCE v. SHIPMAN. LUX V. SHIPMAN. Superior Court op Hartford County, Connecticut. 1873. [39 Conn. 586.] The following opinion was given by Hon. O, S. Seymour, Judge of the Supreme Court, in two cases in the Superior Court in Hartford County, submitted to him as an arbitrator, under a rule of court, by William T. Lawrence, plaintiff in the one, and Peter Lux, plaintiff in the other, and Nathaniel Shipraan and George M. Bartholomew, defend- ants in both cases, the defendants being trustees. The questions of law considered and decided make the opinion one of interest to the profession and the public. The facts are sufficiently stated b}' the judge. H. S. Barbour and Merrill^ for the plaintiffs. Robinson for the defendants. JUDGE Seymour's opinion. These two cases have been submitted to me as arbitrator under a rule of court. The two are substantially alike. The plaintiffs were respectively tenants of the defendants, occupying a brick building called the Russ Place, which the defendants owned as trustees in fee, situate on the west side of Main street, in the cit}' of Hartford. The plaintiffs aver that while thej- were thus occupying the tenement on the 13th day of July, 1869, and for several days next previous thereto, the defendants carelessly and negligently' excavated and removed, and caused to be excavated and removed, the earth and foundation from under the south wall of said tenement, and did thereb}' remove the necessary support of said wall, and on said daj' had negligentl}' and carelessl}' made and caused to be made the excavation and removal aforesaid, without providing other necessar}' support of said wall, and had negligently omitted to shore up said wall as aforesaid, although SECT. II.] LAWRENCE V. SIIIl'MAN. 211 wanietl b}- the plaintiffs of the danger, whereby the wall sank aiul fell and the whole building was demolished, and the plaintiffs' goods of great value were destroyed, There is no serious eonlliet of testiraon}*. Indeed most of the facts are agreed to. The relation of the parties to each other is as stated in the writ. One Duffy owned the premises south of and adjoining those of the defendants, and he had pulled down a tenement on his lot in order to rebuild. Neither building had a cellar. Duffy had n)ade con- siderable progress in digging a cellar on bis lot, when he had a comnuinication with the defendants proposing that they should join him in building a party wall of stone under the south wall of the defendants' tenement. Duffy's proposition was favorably entertained, and resulted in a verbal contract with a builder and mason by trade, to remove the earth from under the south wall of the defendants' tenement and underpin it with stone. He was to furnish everything needed for the job. The stone structure was to be laid eight feet below the side- walk, and was to extend the depth of the defendants' building, and was to be two and a half feet in thickness, nine inches being on Duffy's land and one foot nine inches on the defendants' land. The price agreed on was $500, one half to be paid by Mr. Duff}' and one half b}- the defendants. The defendants and Duffy were the contracting parties on one side and the mason on the other. The defendants did not have, nor were they by the terms of the contract to have, anj' oversight or direction of the job. The}' relied on the skill and experience of the mason to do the work properly, carefully, and according to his contract. The contractor commenced his work about the 12th of July, under- mining at first about nine feet of the defendants' wall and immediately began tilling up the gap with stone. On the 13th he continued his stone work, but unfortunately and unadvisedly he undermined the wall at another place before the first gap was filled and thus weakened the foundation, so that at about half-past three o'clock in the afternoon of the 13th of July, the whole building tumbled into a mass of shapeless ruins. The occupants bare!}' escaped with their lives, saving none of their property. The principal question of law raised in the case arises out of the fore- going facts. Some other facts, however, appeared in evidence which will be hereafter noticed, as bearing upon the question of the defend- ants' liability. The first question suggested is, whether this negligence of the mason can in law be imputed to the defendants. If he was their servant his carelessness is in law theirs. If, on the other hand, he was mereh' a contractor, acting as such in an independent business, the}- are not under the general rule of law liable, though the}- ma}' even then under certain circumstances be held responsible. Whatever obscurity may heretofore have rested upon the distinction between servant and contractor, it is now established law that such a distinction exists, and the elements which distinguish the one from the other by the modern decisions have been determined with considerable approach to exact- 212 LAWRENCE V. SHIPMAN. [CHAP. II. ness and accurac\", though it must be admitted that in some uistances the distinction is nice and difficult. In this case it is to be noticed : 1. That the mason was employed in a single transaction at a specified price for the job. 2. By the terms of the contract he was to accomplish a certain specified result, the choice of means and methods and details being left wholly to him. 3. The employment was of a mechanic in his regular business, recog- nized as a distinct trade, requiring skill and experience, and to which apprenticeslups are served. 4. The contractor's duty was to conform himself to the terms of the contract, and he was not subject to the immediate direction and control of his employers. These circumstances bj' all the authorities indicate a contractor in contradistinction from a mere servant, and the defendants cannot in mj' judgment be subjected for the negligence of the contractor, upon the basis of the relation of master and servant. But it was suggested in the argument that as the contractor was at work on the defendants' propert}^, by their procurement and for their benefit, and being selected by them, natural justice requires that they should bear the consequences of his negligence rather than the plaintiffs, who are innocent sufferers, having had no agency whatever in the transaction which caused the loss. These suggestions are not without a show of reason, and their force is fully admitted in the law as applicable to a certain class of cases. 1. If a contractor faithfully performs his contract, and a third person is injured by the contractor, in the course of its due performance, or by its result, the employer is liable, for he causes the precise act to be done which occasions the injury ; but for negligences of the contractor, not done under the contract but in violation of it, the employer is in general not liable. It is not claimed here that the injury to the plaintiffs arose from the due performance of the contract. On the contraiy, it resulted from the breach of the contract, by the contractor not doing his work with suitable care. 2. If I emplo}' a contractor to do a job of work for me which in the progress of its execution obviously exposes others to unusual peril, I ought, I think, to be responsible upon the same principle as in the last case, for I cause acts to be done which naturally expose others to injury. The case now before me could not, however, I think, come under this head. The peril, whatever it was, was mainly to the defendants' own tenement, and cannot be treated, notwithstanding the unfortunate event, as one at all imminent to the plaintiffs. 3. If I employ as a contractor a person incompetent and untrust- worthy, I may be liable for injuries done to third persons by his care- lessness in the execution of his contract. This, too, has no application to the case before me. But the plaintiffs claim that the same principle is ap[)licable to the employment of a person pecuniarily irresponsible, SECT. II.] LAWKENCE V. SHIPMAN. 213 and evidence was received, subject to objection, that the contractor was destitute of propert}' ; and I am called upon to decide the efTect of this fact. I am not prepared to say that this fact may not be of some weight where the work to be done is hazardous to others. If a person having an interest in a job which naturally exposes others to peril, should attempt to shield himself from responsibility by contracting with a bankrupt mechanic, I think the employers might be subjected for dam- ages done b}' the contractor, but, as before stated, the work to be done by the contractor involved no peril in its usual performance, and I cannot hold the defendants liable under this claim. 4. The employers may be guilty of personal neglect, connecting itself with the negligence of the contractor in such manner as to render both liable. I find no precedents to guide me under this head, but the prin- ciples of the law lead inevitably to this conclusion. [Here follows an examination of the evidence on this point, which is omitted by the reporter; the conclusion of the judge being that the defendants had not been guilt}' of any personal negligence.] I therefore award that the defendants are not guilt}' in manner and form as alleged. There are other cases than those mentioned in which the employer is liable for the negligence of his contractor, but they have no special application to the matter before me. I will barely allude to them. It has always been understood that if the negligence creates a nuisance the employer is liable, though in a late English case this seems to be somewhat doubted. Overton r. Freeman, 11 C. B. 867. So if the contract is to do an unlawful thing, the employer as well as the con- tractor is liable for the damage done in the execution of the contract. There was formerly a doubt whether the owner of real propert}' could be protected from liabilit}' caused b}- work upon it by a contractor, but it is now settled that real and personal property- stand upon the same footing in this respect. These cases are submitted to me as an arbitrator, with full power, as I understand, upon questions of law and fact. The plaintiffs are inno- cent sufferers to a large amount b}' the fall of this building. The suits have been very fairh' conducted with a view to a full investigation of the facts and the law applicable to the facts. There are circumstances connected with the case which I think justifj' me in making the matter so far a mere matter of arbitration as to award that no costs be taxed against the plaintiffs, and that the arbitrator's fees be paid half b}' the plaintiffs and half by the defendants. O. S. Setmour. * * On the distinction between servants and independent contractors, and on the responsibility for the acts and omissions of the latter, see further : Blake v. Ferris, 5 N. Y. 48 (1851) Hilliard v. Richardson, 3 Gray, 349 (1855) ; Boswell v. Ladd, 8 Cal. 469 (1857); Storrs i-. City of Utica, 17 N. Y 104 (1858); Hole v. Sittingbourue & Sheerness Ry. Co., 6 H. & N. 488 (1861); Pickard v. Smith, 10 C. B. n. s. 470 (1861); McCafferty v. Spuyten Duyvil & Port Morris Railroad Co., 61 N. Y. 178 214 BURNS V. POULSOM. [CHAP. IL BURNS V. POULSOM. Common Pleas. 1873. [L. R. 8 C. P. 563.] Action against the defendant for an injuiy to the plaintiff tlirougli the negligence of the defendant's servant.^ Gully showed cause. Malone, in throwing the iron out of the cart, was not acting within the scope of his employment. His duly com- menced only when the iron rails had been placed on the ground ; and, in anything done by him beyond taking them from the ground to the ship, and there stowing them, he was a mere volunteer. A master is not responsible for acts done by his servant which do not fall within the ordinary scope of his authority. It is only for the negligent exer- cise by the servant of his dut}' to his master that the latter is liable. [Grove, J. Where the act is closely connected with the employ- ment, must it not be a question for the jury? Can we say that this act of Malone was so wholly unconnected with the scope of his employ- ment that it could not have been his duty to help the carter to unload the iron?] Tlie only question of fact for the jury was whether or not Malone had been guilty of culpable negligence. [Denman, J., referred to AVhatman v. Pearson, Law Rep. 3 C. P. 422, and Storey v. Ashton, Law Rep. 4 Q. B. 476.] [The following cases were cited, — Limpus v. London General Omni- bus Co., 1 H. & C. 526 ; 32 L. J. (Ex.) 34 ; Seymour u Greenwood, 7 H. & N. 355 ; 30 L. J. (Ex.) 189 ; and Page v. Defries, 7 B. «& S. 137.] Crompton, in support of the rule. The plaintiff is entitled to a ver- dict, if there was any evidence which could properly have been sub- mitted to the jury that Malone was acting within the scope of his employment ; and that question ought to have been left to them. [The following cases were cited, — Poulton v. London and South Wes- tern Railway Co., Law Rep. 2 Q. B. 534; Barwick v. English Joint Stock Bank,"^ Law Rep. 3 Ex. 259 ; The Thetis, Law Rep. 2 A. & E. 365 ; Bay ley v. Manchester, Sheffield, and Lincolnshire Railway Co., Law Rep^ 7 C. P. 415 ; in error. Law Rep. 8 C. P. 148.] [Denman, J. Is it not a question of fact whether this was anything more than a slight deviation from the strict line of Malone's duty? I think it was held by the Court of Queen's Bench in a recent case of Woolley V. Curling, not reported, that the question whether or not an act was within the scope of the servant's authoritj' ought to be sub- mitted to the juiy.] Cur. adv. vidt. (1874) ; Tarry v. Ashton, 1 Q. B. D. 314 (1876) ; Hughes v. Percival, 8 App. Cas. 443 (1883); Circleville v. Neuding, 41 Ohio St. 465 (1885); Hexanier v. Wehb, 101 N. Y. 377 (1886) ; Norwalk Gaslight Co. v. Borough of Norwalk, 63 Coun. 495, 528- 529 (1893). — Ed. 1 The reporter's statement is omitted. — Ed. SECT. II.] BUKNS V. I'OULSOM. 215 Tlie judges differing iu opinion, the following judgments were delivered : — Denman, J. In tliis case which was tried before the judge of the Passage Court at Liverpool, who nonsuited the plaintiff, a rule was obtained to set aside that nonsuit, and to enter a verdict for the plain- tiff for £30 damages, if this court sliould tliinlc fit. It was assumed, upon the argument of the rule, b}' the counsel on both sides, and I tliink we are also bound to assume, that this reserva- tion means tliat the plaintiff is to be entitled to the verdict for £30 if this court should be of opinion that there was evidence upon which the jury might not unreasonably have found for the plaintiif. I am of opinion that lliere was such evidence. Tlie material facts proved at the trial were as follows : The de- fendant was a stevedore who was employed to ship some iron rails which were to go by a ship h ing in the Iluskisson Dock at Liverpool. He had a foreman named ISLiloiio, who on the day in question was act- ing for him at the dock. Tlie iron rails were being unloaded from a cart which belonged to one Wood, and was standing at a small distance from the ship on board of which the rails were in course of being loaded. The carter, in unloading the rails, was putting them down on one side of the cart, when Malone, — for what purpose is not stated, but, 1 think it may be inferred, in order to assist his own operations in some way, — told him to put them on the other side, and, upon his refusal, got Into the cart and threw out some rails, one of which injured the plaintiif, a passer-by. The only evidence in relation to Poulsom's or Malone's duty in respect of the iron rails in question was as follows : Tlie second wit- ness, a warehouseman in the service of the plaintiff's emplo3"ers, on his cross-examination, said: ''Poulsom is a stevedore. lie receives the iron rails after they are thrown out of the cart on to the ground, and takes them to the ship." The carter on his cross-examination said: *' It is our dutj' to put the rails down out of the cart on the ground ; and then the stevedore takes them to the ship." It was contended for the defendant that, upon these facts, there was no evidence upon which a jury could have found a verdict for the plain- tiff ; and upon this ground the learned judge nonsuited the plaintiff. The contention before us on the part of the defendant was, that, inasmuch as the duty of the stevedore did not commence, in relation to any particular portion of the rails in question, until they were on the ground, it was impossible to hold the defendant liable for the act of Malone in throwing the rail in question from the cart ; that that act could not be within the scope of his employment or duty, being an act done at a period antecedent to that at which his duty in relation to the iron commenced, and at a place where he had no business to be med- dling with it at all. In m}' opinion, this contention of the defendant proceeds upon too narrow a view of the duty or employment of Malone ; and I think that 216 BUENS V. POULSOM. [CHAP. II. tlie cases applicable to the subject establish tliat, even though in the ordinary course of his employment, it would not be a part of Malone's duty to assist in moving the rails from the cart, it was still a question for the jur}', and not for the judge, whether in this particular case he was acting within the scope of his employment. It cannot, 1 think, be contended in this case that the judge or jury were bound to hold that Malone was acting for any purpose of his own, as distinguished from his master's service, as was the case in Storey v. Ashton, Law Rep. 4 Q. B. 47G, where the carman through whose neg- ligence the plaintiff was injured had been induced by a clerk of the defendant's to drive him in a wrong direction, after business hours, on business of the clerk's ; nor, as it appears to me, if it was a question for the jur}', would it be unreasonable for them to have found that he was acting witlun the scope of his employment, inasmuch as they might not unreasonably have thought that the act was one done for his mas- ter's benefit, and with a zealous desire to expedite the work, and, for aught I know, in a manner proper and even usual under the circum- stances for a person emploj-ed as Malone was at the time. In Joel V. Morison, 6 C. & P. 501, which, though a nisi prius case, is cited with approval in many other cases decided by the courts, — Parke, B., says: "The master is onl}' liable where the servant is act- ing in tlie course of his employment : " but he immediately adds : " If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable." And earlier in the same summing-up the learned Baron says : " If the servant, being on his master's business, took a detour to call upon a friend, the master will be responsible." And this view of the law is entirely in accordance with the judgments in Whatman v. Pearson, Law Kep. 3 C. P. 422, cited for the plaintiff, which indeed is a stronger case, inasmuch as there the servant acted in violation of his instructions. No doubt, cases ma^' be put in which a servant may so conduct himself, about goods of his master with which he is dealing as servant, as to make it clear that the master is not responsible for his negligence in the course of such conduct. Storey v. Ashton, Law Rep. 4 Q. B. 476, mentioned above, and Mitchell v. Crassweller, 13 C. B. 237 ; 22 L. J. (C. P.) 100, were such cases. But can it be said that, in the present case, it would have been unreasonable for a jury to find that the act of the foreman in getting into the cart and throwing the iron down was an act bona fide and not unreasonably done in the zealous dis- charge of his duty to his master, in the course of the business he was employed upon ? And, if they were of that opinion, might they not also properh' find that he was acting within the scope of his employ- ment? I think the}' might, and therefore that this nonsuit was wrong, and that, by vii'tue of the understanding at the trial, the rule should be made absolute to enter the verdict for £30. My Brother Grove agrees with me that in this case there was evi' dence for the jury, and that the nonsuit was therefore wrong. SECT. II. J BURNS V. POULSOM. 217 Bkett, J.* The question was stated in argument on both sides to be, whether there was evidence that Malone was acting within the scope of his authority. If there was, it was admitted bj- the defend- ant's counsel that the judgment should be for the plaintiff. If there was not, it was admitted by the plaintiff's counsel tliat the judgment should be for the defendant. The arguments raise the question, what is the proper application in point of law in this case of the phrase or doctrine "that the servant must be acting within the scope of his authoritj." Some cases have raised the question whether the servant in what he did was intending to act for his master or for purposes of his own. That does not seem to me to be the point in this case. Malone ma}- be considered to have been intending to act in performance of the dut\- delegated to him. In this case the question is whether the time had arrived or the circum- stances had arisen for doing anything which the servant was employed to do. Had his employment commenced? ''The question," says Lush, J,, in Storey v. Ashton, Law Rep. 4 Q. B. at p. 480, " in all such cases is, whether the servant was doing that which the master emplo^-ed him to do." " Where the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant : " per Maule, J., in Mitchell v. Crassweller, 13 C. B. 237, 247 ; 12 L. J. (C. P.) 100. " It is not sufficient that the act should be done with intent to benefit or intent to serve the master. It must be something done in doing what the master has employed the servant to do : " per Blackburn, J., in Limpus v. London General Omnibus Co., 1 H. & C. 526 ; 32 L. J. (Ex.) 34. In Whatman v. Pearson, Law Rep. 3 C. P. 422, the servant was held to be acting in the course of his employ- ment, because he was emploved to manage the horse and cart during the day : per Byles, J.. Law Rep. 3 C. P. at p. 425. Now, in the present case, Brocksop, who was the warehouseman of Davis & Co., the shippers of the iron rails, stated that the defendant's employment was to receive the rails after they were thrown out of the cart on to the ground, and take them to the ship. It was, therefore, obviousl}' the business of Davis & Co., by their own servants or some other agent of theirs, to carrj' the rails to the quay and place them on it, i. e., on to the ground there, for the defendant to carry them thence into the ship and there stow them. And it is obvious that Davis & Co. employed Wood, a master carter, to carr}' the rails to the quay and deliver them there. Strongfellow, who was Wood's carter, stated, "It is our dut}' to put the rails down out of the cart on the ground, and then the stevedore takes them to the ship." The joint employers of Wood and the defendant, therefore, limit the commencement of the defendant's employment to a time after the rails were on the ground. And the person employed on the previous and antecedent operation, 1 After statintr the case. — Ed. 218 ROUNDS V. DELAWARE, ETC. RAILROAD CO. [CHAP. IL viz., that of cnrning the rails fi-om tlie wareliouse and tlelivoring them out of tlie cart on to tlie quay, equally limits the conimencenient of the defendant's employment to the time after the rails are on the ground. Now, what the defendant was employed to do, what he might accord- ing to that employment have done himself, he employed Mtilone to do. He employed Malone to carry the iron rails, after they were on the ground at the quay, thence into the ship, and there stow them. For anything done by Malone in canying or stowing the rails, or anything done by Malone with the rails after they were on the ground, with intent to carr}' out his orders to take them into the ship and stow tliem there, the defendant would have been liable. But it seems to me that the defendant had not employed Malone to do anything with regard to the rails before they were on the ground. The defendant himself was not employed to do anything with the rails before they were on the ground. Anything voluntarily done by Malone, therefore, before the rails were on the ground, though done wath intent to serve the defend- ant, was not a thing done which the defendant had employed Malone to do. The evidence which described and limited the employment of the defendant and of Malone was given on behalf of the plaintiff, and there was no evidence to vary or render doubtful the limitation of the commencement of that employment. There was no question which the jury would have been entitled to entertain about it. The judge was, in my opinion, bound to sa}' that what was done b}' Malone was done before his employment by the defendant was called into pla^', that is to sa}-, it was a thing which the defendant had not emploj'ed Malone to do. I am of opinion, therefore, that the learned judge was right in non- suiting the plaintiff, and that this rule ought to be discharged. The majority of the court, however, being of a different opinion, the rule will be made absolute to set aside the nonsuit and enter a verdict for the plaintifT for £30, the damages agreed upon at the trial. Mule absolute. BOUNDS, BY Guardian, Respondent, v. THE DELAWARE, LACKAWANNA, AND WESTERN RAILROAD COMPANY, Appellant. Court of Appeals of New York. 1876 [64 N. Y. 129.] Appeal from judgment of the General Term of the Supreme Court in the third judicial department, in favor of plaintiff, entered upon an order denying a motion for a new trial and directing judgment on a verdict. ^Reported below, 3 Hun, 329 ; 5 T. & C. 475.) This action was brought to recover damages for injuries sustained by SECT. II.] ROUNDS V. DKLAWARE, ETC. RAILROAD CO. 219 plaintiff in consequence of being kicJied off of one of defendant's l)ag- gage cars by the baggagouian. The transaction resulting in the injury occurred at Norwich, May 3, 1872. The defendant operated a broad-gauge railroad from Bing- hamton to Norwich, and a narrow-gauge road from Norwich to Utica. The passenger train from Binghamton on this occasion as usual ran to the depot at Norwich and transferred the passengers and freight to the Utica train and then backed south on a switch, a distance of about sixty rods, to the round-house, to make up the new train which was to run back to Binghamton. The train consisted of the engine, an express car, a baggage and smoking car, one car divided into two com* partments, and one passenger car. The conductor of the train got off with the passengers at the depot and left it in charge of the baggage- man to run back on the switch and make up the new train. While the train was unloading and transferring the passengers at the depot the plaintiff, a bo}' twelve years old, living near the depot, got on the plat- form of the baggage and smoking car, at the rear end, to ride down to the round-house. A quantity of wood was piled at one point along near the west side of the track for a distance of over 100 feet. While the train was backing down the track, and when it arrived at the wood pile, the baggageman in charge of the train discovered the plaintiff on the platform and ordered him off. According to the plaintiff's testi- mony, he replied: '' I can't, the wood is right here; I want you to help me ; " and thereupon the baggageman kicked him off. He fell against the wood and rolled under the car, the wheel of which passed over and crushed his leg. A printed notice was posted up in the bag- gage car and another one near where the plaintiff was standing on the platform, as follows : " No person will be allowed to ride on this bag- gage car except the regular train men employed thereon. Conductor and baggageman must see this order strictly enforced.'' Another printed notice was contained in the posted time cards as follows : " Train baggagemen must not permit an}- person to ride in the bag- gage car, except the conductor and news agent connected with the train. Conductor and baggageman will be held alike accountable for a rigid enforcement of this rule." At the close of the plaintiff's evidence the defendant's counsel moved for a nonsuit on the grounds: 1. The plaintiff was a trespas.ser, or wrongfully on tlie cars of the defendant, and is not entitled to recover. 2. The plaintiff, b}' his own negligence, contributed to the accident. 3. Upon the evidence the defendant was not guilt}' of any negligence or wrongful act in reference to the plaintiff; that the acts of Gow (bag- gageman), which caused the injur}-, were not authorized by the defend- ant, but were a wilful and wanton assault by Gow upon the plaintiff, and for these acts and their consequences the defendant is not respon- sible to the plaintiff. The court denied the motion and ruled that it was a question for the jury whether the baggageman was there acting within the authority of the company in putting the boy off, and whether 220 ROUNDS V. DELAWARE, ETC. KAILROAD CO. [CHAP. II. he acted wilfully and wrongfully ; to which the defendant excepted. After the defendant had given evidence contradicting the plaintiff's testimony, and at the close of the case, the defendant's counsel renewed his motion for a nonsuit on the same grounds, and also on the ground that no right of action is made against the defendant, and that the evL dence does not warrant a submission of any question of fact to the jury which could authorize a recovery. The motion was denied and the de- fendant excepted. The court then submitted the following questions to the jury, to which the defendant also excepted: 1. Did Gow put the boy off the cars ? 2. Was he acting within the authority given him by the defendant? 3. Was lie acting maliciously and in excess of his authority ? The court then charged the jury, among other things, that the plain- tiff was a trespasser on the car, but if the baggageman, nevertheless, in the discliarge of his dut}^ pushed him off the train in an improper man- ner, and at a dangerous place, tlie defendant was liable ; to which the defendant excepted. The coiu't also charged the jur}- that if the bag- gageman pushed the bo}' off the train, and in doing so was acting as the employee of the defendant in good faith in the discharge of a duty he owed the compan}', the defendant would be liable for the careless and negligent discharge of his duty ; but if he was acting wilfully and maliciously toward the plaintiff, outside of and in excess of his dut}', then the baggageman alone would be responsible in law for the conse- quences ; to which the defendant excepted and requested the court to modify the charge or to charge that defendant was not liable if the bag- gageman acted wilfully and wantonl}' without authority from defendant. This the court refused. Fi^ancis Kernan, for the appellant. E. H. Prindle^ for the respondent. Andrews, J. There is, at this time, but little conflict of judicial opinion in respect to the general rule by which the liabilit}' of a master for the misconduct of his servant, resulting in injury to third persons, is to be tested and ascertained. In Higgins v. The Watervliet Turn- pike Company, 46 N. Y. 23, this subject was considered by this court, and the rule was declared to be, that the master was responsible, civiliter, for the wrongful act of the servant causing injur}' to a third person, whether the act was one of negligence or positive misfeasance, provided the servant was at the time acting for the master, and within the scope of the business intrusted to him. The master is liable only for the authorized acts of the servant, and the root of his liability for the servant's acts is his consent, express or implied, thereto. When the master is to be considered as having authorized the wrongful act of the servant, so as to make him liable for his misconduct, is the point of difficulty. Where authority is conferred to act for another, without special limitation, it carries with it, b}' implication, anthorit}' to do all things necessar}' to its execution ; and when it involves the exercise of the discretion of the servant, or the use of force towards or against SECT. II.] ROUNDS V. DELAWARE, ETC. RAILROAD CO. 221 another, the use of such discretion or force is a part of the thing authorized, and when exercised becomes, as to third persons, the dis- cretion and act of tlie master, and this, although the servant departed from the private instructions of the master, provided he was engaged at the time in doing his master's business, and was acting within the general scope of his employment. It is not the test of the master's liabilit}- for the wrongful act of the servant, from which injury to a third person has resulted, that he expi'essly authorized the particular act and conduct which occasioned it. In most cases where the master has been held liable for the negligent or tortious act of the servant, the servant acted not only without express authority to do the wrong, but in violation of his dut}' to the master. It is, in general, sufficient to make the master responsible that he gave to the servant an authority, or made it his dut}- to act in respect to the business in which he was engaged when the wrong was com- mitted, and that the act complained of was done in the course of his employment. The master in that case will be deemed to have consented to and authorized the act of the servant, and he will not be excused from liability, although the servant abused his authority, or was reck- less in the performance of his duty, or inflicted an unnecessary injury in executing his master's orders. The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business or the care of his property, is justly held responsil)le when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the inlluence of passion aroused by the circum- stances and the occasion, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injur}- upon another. But it is said that the master is not responsible for the wilful act of the servant. This is the language of some of the cases, and it becomes necessary to ascertain its meaning when used in defining the master's responsibility. The case of McManus v. Crickett, 1 East, 106, turned upon the form of the action and the distinction between trespass and case, but Lord Kenyon, in pronouncing the judgment of the court, said : " Where a servant quits sight of the object for which he was employed, and, with- out having in view his master's orders, pursues that which his own malice suggests, his master will not be liable for such acts." This language was cited with approval in Wright v. Wilcox, 19 Wend. 343, and the master was held not to be responsible where the servant, in driving his master's wagon along the highway, wilfully whipped up his horses while the plaintiff's son, a 3'oung lad, was standing between the front and back wheels, attempting, with the implied permission of the servant, to get into the wagon, in consequence of which the boy was thrown down, run over, and injured. The servant was cautioned bj- a bystander that if he did not stop he would kill the bo}'. The court, in the opinion delivered, assumed that the evidence showed that the ser- vant w^iipped up the horses with a wilful design to throw the bo)' off. The act of the servant was imminently dangerous, and it might reason- 222 KOUNDS V. DELAWARE, ETC. RAILROAD CO. [CHAP. IL ably be inferred from the evidence tliat he designed the injury which resulted from it. "The law," said Cowen, J., "holds such a wilful act a departure from the master's business." So in Vanderbilt v. The Richmond Turnpike Company, 2 Comst., 479, the master of the de- fendant's boat intentionally ran into the boat of the plaintiff, and the court held that this was a wilful trespass of the master for which the defendant was not liable. In Lyons v. Martin, 8 Ad. & El. 512, it was held that where a servant merely authorized to distrain cattle damage- feasant, drives cattle from the highway into his master's close, and there distrains them, the master is not liable. In Mali v. Lord, 39 N. Y,, 381, the act complained of was an illegal imprisonment of the plaintiff b}' the servant of the defendant, and the court held that the authority to do the act could not be implied from the general employ- ment of the servant. The imprisonment, assuming that the suspicion upon which it was made was well founded, was illegal. The master could not lawfully have detained the plaintiff if he had been present, and the court were of the opinion that the servant could not be said to be engaged in his master's business when he assumed to do what the master could not have done himself. See, also, Bolingbroke v. The Local Board, etc., L. R. 9 C. P. 575. It is quite useless to attempt to reconcile all the cases. The discrepancy between them arises not so much from a difference of opinion as to the rule of law on the subject as from its application to the facts of a given case. It seems to be clear enough from the cases in this State that the act of the servant causing actionable injur}' to a third person does not sub- ject the master to civil responsibility in all cases where it appears that the servant was at the time in the use of his master's property-, or be- cause the act, in some general sense, was done while he was doing his master's business, irrespective of the real nature and motive of the transaction. On the other hand, the master is not exempt from respon- sibility in all cases on showing that the servant, without express authority, designed to do the act or the injury complained of. If he is authorized to use force against another when necessary in executing his master's orders, the master commits it to him to decide what de- gree of force he shall use ; and if, through misjudgment or violence of temper, he goes beyond the necessity of the occasion, and gives a right of action to another, he cannot, as to third persons, be said to have been acting without the line of his duty, or to have departed from his master's business. If, however, the servant, under guise and cover of executing his master's orders, and exercising the authority- conferred upon him, wilfully and designedly, for the purpose of accomplishing his own independent malicious or wicked purposes, does an injur}- to an- other, then the master is not liable. The relation of master and ser- vant, as to that transaction, does not exist between them. It is a wilful and wanton wrong and trespass, for which the master cannot be held responsible. And when it is said that the master is not respon- sible for the wilful wrong of the servant, the language is to be under- SECT. II.] ItOUNDS V. DELAWARE, ETC. KAILHOAL) CO. 223 stood a.s referring to an act of po.sitive and designed injnry, not done with a view to the master's service, or for the purpose of executing his orders. Jn this view, the judge at tlie trial correetl}' refused to qualify his charge, or to charge tliat it was sufficient to exempt the defendant from liability that the act of the brakeman in putting the plaintiff olf the car was wilful. He had ahead}- chaiged that if the brakeman acted " wilfully an'l maliciously towards the plaintiff, outside of and in excess of liis duty," in putting him off tlie car, the defendant was not liable. If tlte counsel intended to claim that the defendant was exempt from resi)on.sibility if the brakeman acted wilfully, although without malice, the i)oint was not well taken. That the brakeman designed to put the plaintiff off the car was not disputed, and this was consistent with the authority and duty intrusted to him. But a wilful act wdiich will exempt a master from liability for the tort of his servant, must be done outside of his duty and his masters business. The chaige was, therefore, strictly correct, and the exception was not well taken. Neither was the defendant entitled to have the court rule, as matter of law, that, upon the circumstances as shown by the evidence on the part of the plaintiff, the defendant was not responsible. It is conceded that the removal of the plaintiff from the car was within the scope of the authority conferred upon the baggageman. The plaintiff had no right to be there. He was not a passenger or servant, and had no express or implied permission to be upon the car. The brakeman, in kicking the boy from the platform, acted violently and unreasonably^, and to do tb^s while the car was in motion, and when the space between it and the wood-pile was so small, was dangerous in the extreme. But the court could not say from the evidence that the brakeman was acting outside of and without regard to his employment, or designed to do the injury which resulted, or that the act was wilful within the rule we have stated. If the master, when sued for an injury resulting from the tortious act of his servant while apparentl}- engaged in executing his orders, claims exemption upon the ground that the servant was, in fact, pursuing his own purposes, without reference to his master's business, and was acting maliciously and wilfulh-, it must, ordinarilv, be left to the jury to determine this issue upon a consideration of all the facts and circumstances proved. See Jackson v. The Second Ave. R. R. Co., 47 N. Y. 274. There may be cases where this rule does not ap- ply, and where the court would be justified in taking the case from the jury ; but where different inferences may be drawn from the facts proved, and when, in one view, they may be consistent with the liability of the master, the case must be left to the jury. The fact that the plaintiff was a trespasser on the cars is not a defence. The lad did not forfeit his life, or subject himself to the loss of his limbs, because he was wrongfully on the car. The defendant owed him no duty of care by reason of any special relation assumed or existing between the com- pany and him, but he was entitled to be protected against unnecessary injury b}' the defendant or its servants in exercising the right of remov- 224 PHELON V. STILES. [CHAP. II. Ing him, and especially from the unnecessary and unjustifiable act of the brakeman by which his life was put in peril, and which resulted in his losing his limb. Sanford v. Eighth Ave. R. R. Co., 23 N. Y. 343 ; Lovett V. Salem, etc., R. R. Co., 9 Allen, 557; Holmes v. Wakefield, 12 id. 580. No error of law was committed on the trial, and the judgment of the General Term should be affirmed, with costs. All concur. Judy meat affirmed. PHELON AND Wife v. STILES. ELLEN PHELON v. STILES. Supreme Court of Connecticut. 1876. [43 Conn. 426.] Actions of trespass on the case, for injuries from the negligent acts of the servant of the defendant ; brought to the Superior Court in Hartford Count}-. The two cases involved the same facts and were tried together. The court made the following finding of facts : — On the first day of November, 1872, Stiles was, and had for a long time been, engaged in selling flour and feed in Suffield. He then had, and for more than a year before had had, in his employ one George H. Babcock, whose principal employment was to deliver the goods so sold by Stiles to his customers. On that da}', in the afternoon, Babcock took a load of twenty bags of flour and six of bran, the former to be delivered at a Mr. King's and the latter at a Mr. Smith's. Smith lived on a side road branching off from the road leading to King's, and when Babcock came to this side road he took off from his load the bags destined for Smith's and piled them up on the side of the road within the limits of the highway, and left them there while he went on to King's with the remainder. While these bags were so remaining there Mrs. Samuel C. Phelon and Mrs. Ellen Phelon were driving along the road, and their horse being frightened at the bags ran away and threw them both out and injured them. • I find that the bags so left were an object calculated to frighten horses of ordinaiy gentleness; that the horse driven b}' the plaintiffs was of ordinal'}' gentleness ; and that the plaintiffs were not guilty of any negligence which contributed to the injury. I find that Babcock placed the bags in the highway without the knowledge or express authority of the defendant, and for the purpose of so shortening the time to be occupied by him in delivering the goods as to enable him to return to Suffield in time to take a train for Hart- ford on the same day on his own private business. If the defendant was liable to pay the damages so happening to the plaintiffs, I assess the damages at the sum of three hundred dollars in SECT. II.] PHELON V. STILES. 225 each case, and I reserve for the advice of the Supreme Court the question wiiether Stiles is liable for the damages so caused by the acts of Babcock. (\ E. PerMna and J. W. Johnson, for the plaintiffs. W. C. Case and S. A. York, for the defendant. Park, C J. The same principles of law appl}- to both of these cases, and therefoi'e they will be considered together. The defendant claims that the court below has not found that Bab- cock was the servant of the defendant. We think there is no founda- tion for this claim. We construe the phrase, " had in his employ one George H. Babcock," is meaning that Babcock was in the emplo}' of the defendant as a hired servant. The principal question in the case is, whether Babcock in deposit- ing the bags of bran intended for INIr. Smith by the side of the highway, and leaving them there until his return from Mr. King's, where he went to deliver the bags of flour, was engaged in the business of the defendant in the the regular course of his employment. The defendant was a flour and feed merchant, and it was his practice to deliver his merchandise at the residence of his customers. Babcock was employed to make delivery, and, on the occasion in question, started with his bags of flour and bran, sold by the defendant to King and Smith, to deliver them to these parties in the regular course of his employment. The question then is, was Babcock engaged in the defendant's business while depositing and leaving the bags by the side of the road ? The defendant claims that those acts were performed by him on his own account ; that he was desirous to take a train for Hartford later in the dav, on his own private business, and that he left the bags by the roadside to enable him to make his deliver}- more rapidh' and return earlier, so that he could accomplish his purpose. But what business of his own was he then doing? He was not then attending to private business in going to Hartford. That was to be undertaken later in the day. He left the bags to expedite the deliver}'. Did it make the business his own because he despatched it more speedily than it would naturally have been done? He was sent by the defendant to deliver the flour and bran. Did he do anything else than deliver them? His whole object in leaving the bran by the side of the road was to gain time. Suppose he had driven the horse with such speed as amounted to carelessness in order to gain time, and had injured a person by so doing, would he be transacting his own business while driving so rapidly, so that the defendant would not be hable? Suppose he had left the bran out of consideration for his horse, and the same result had followed, would the defendant be excused? He was under the necessity of taking the bran to Mr. King's, or of leaving it by the side of the road until his return ; suppose he had taken the latter course without any special object in view, would it make any difference 15 226 CASWELL V. CROSS. [CHAP. IL in the case? We think all that can be said of the matter is, that Babcock performed the defendant's business in delivering the bran in a shorter time than he would have done had he not intended to go to Hartford later in the day ; and certainly the rapidity with which the business was transacted cannot operate to excuse the defendant. Tlie defendant further claims that the bags, left as they were bj- the side of the road, became a public nuisance, and that the leaving of them was therefore a public offence, and that he cannot be liable for such an act of his servant. But Babcock did not intend to create a nuisance. The case does not find that he intended any harm. All that can be said is, that he negligently left them while performing the business of the defendant, and for such negligence the defendant is of course liable. We think there is nothing in this claim. We advise judgment for the plaintiffs. In this opinion the other judges concurred ; except Foster, J., who dissented. CASWELL V. CROSS. Supreme Judicial Court of Massachusetts. 1876. [120 Mass. 545.] Tort for an arrest and false imprisonment. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on an agreed statement of facts, in substance as follows : — The defendant emplo3'ed J. E. Cupples & Co. to collect a bill in his favor against the plaintiff, amounting to twelve dollars and accrued interest. Cupples & Co. advertise and hold themselves out to the public as a " Law and Collection Bureau," and have their place of business on School Street, in Boston. They are not regularly admitted attorneys, but they sue out writs upon claims placed in their hands for collection, sometimes appearing in court as the attorneys of record in their cases, and sometimes using the names of regularly admitted at- torneys. In all courts in the vicinity of Boston, where they are permitted to do so, they enter their own appearance only, and always retain the exclusive control and management of their cases in and out of court, whenever an attorney's name is entered of record. They use the name of a regularly admitted attorney for the mere purpose of complying with the rules of court. In addition to appearing in court in their own cases, they examine poor debtors arrested by them, and do the general busi- ness of regular attorneys, in making writs and declarations, levying and collecting executions, &c. SECT. II.] CASWELL V. CROSS. 227 Upon the claim placed in their hands b}- the defendant they brought an action against the plaintiff in the Municipal Court of Boston, using the name of a regularly admitted attorney, and recovered judgment on September 1, 1874, on default, for the amount of $1.").12 debt and $ 64N. Y. 129.1 . . . It is not contended that this general rule is not settled by reason and authority, but the defendants say that the acts here complained of were not within the scope of their agent's employment. It is obvious that in most cases the question is one of fact. What are the limita- tions of an agent's or a servant's authority depends generally upon the things he is to do, the object he is set to accomplish, the degree of dis- 1 A quotation from Rounds v. D. L. & W. Railroad Co., avte, pp. 218, 220-221, la omitted. — Ed. 244 STAPLES V. SCHMID. [CHAP. IL cretion wbich the position where he is placed and the exigencies of the occasion reasonably call for. These are matters of common knowledge when they pertain to the ordinary occupations of men, matters of fact, as well known to the jur}' as to the court, or inferences of fact from well-known or proven facts, which it is as much the province of the jur}- to draw as it is the province of the court to carry out a principle of law to particular deductions. It is only when the act under consid- eration is elearl}- foreign to the scope of the employment that the court can exclude it as a matter of law. Opinion of Deuman, J., for a majority of the court in Burns v. Poulson, 42 Law J. C. P. 302, L. R. 8 C. P. 563. " What is or is not within the course of the servant's employment or the course of his authorit}' is, within certain limits, a question of fact ; and the decisions of the courts on the subject are not altogether consistent, or easily to be reconciled." Add. Torts (6th ed. by H. G. Wood), * 107. Some of these inconsistencies have evidently arisen from attempts to ascertain sharp legal distinctions where the cases presented legitimately only questions of fact. Bearing in mind these considerations, we may now consider the cases cited by counsel as settling principles by which this case should be decided. Two principles seem to be recognized bj- the English cases cited : First, that, when a servant not speciall}' appointed to protect property arrests a person whom he supposes to have stolen his master's goods, the servant must be presumed to have acted in pursuance of his duty as a good citizen, and not in the scope of his employment as a servant. This was strenuously urged by counsel in Edwards v. Railway Co., L. R. 5 C. P. 445, and was adopted by the court as the rule for that case. We doubt its cogency as a rule of universal application. The arrest of a thief is not an ordinary necessity- of commercial business. An at- tempt to steal is an extraordinar}' event which puts the guardian of the property- to an instantaneous election of means to frustrate it. A clerk or salesman in such a case may ex necessitate be invested with duties and powers which are more germane to the scope of employment of an officer. The opinions of the judges, however, are instructive in this connection as showing assent to the converse of the proposition, which is nearer the case at bar. Keating, J. (page 448), saA-s : '' If there is any evidence to 6x the defendants, it must be upon an implied author- ity resulting from Holmes' position as their servant, and that raises broadly, the question whether a person in the position of Holmes has implied authority to give into custod}' an}' one whom he suspects to have stolen his master's goods. I think there is no such implied authority. It is admitted that the point is new, and that there is no case in which such an authorit}' has been assumed to exist. . . . There seems no grounds for saying that what was done was in the ordinary course of the business of the company, nor that it was for their benefit, except in so far as it is for the benefit of all the queen's subjects that a criminal should be convicted. If Holmes acted from a sense of the duty which rests on every one to give in charge a person whom he SECT. II.] STAPLES V. SCHMID. 245 thinks is committing u felony, his conduct would in no wjjy be con- nected with the defendants." Montague Smith, J., saj-s: " No doubt, if in furtherance of the particular business of the company it is neces- sary to arrest a person, the servants of the company have an implied authorit}' to do it. . . . Here, however, the cause of the arrest was not at all connected with the company's business, and it cannot, I think, be presumed that the company- gave authorit}^ to their servants gen- erally to apprehend any person whom the servants think is committing a felony, even though on the company's property." Brett, J., " It is not enough that the act should be for the benefit of the master, but it must be in the ordinarj- course of business, in order that an authority to do it may be implied. In the case of a person being arrested for breaking the company's by-laws, it may well be said that this is the way in which the company- carr}- on their business ; and similarly if an officer be appointed expressl3' to watch the company's property. I should think, if he took an innocent person into custody- on the charge of stealing, it might well be said that the company were liable." In Allen V. Railway Co., L. R. 6 Q. B. 65, a booking clerk for the railway- company caused the arrest of a person who had apparentl}- attempted to rob the till in his charge. The attempt was unsuccessful, and had ceased at the time of the arrest. It was held that such an arrest was not in the scope of the clerk's emplo3ment, its object being the punish- ment of the offence, not the protection of the property, but, in the course of his opinion, Blackburn, J., says (page 68) : " I am inclined to think that if a man in charge of a till were to find that a person was attempting to rob it, and he could not prevent him from stealing the propert}' otherwise than by taking him into custody, the person in charge of the till might have an implied authority to arrest the offender ; or if the clerk had reason to believe that the money had been actuall}' stolen, and he could get it back b3- taking the thief into custod}-, and he took him into custody with a view of recovering the propertv taken away, it might be that that also might be within the authority' of a per- son in charge of a till. I am not, however, prepared to pronounce a a decided opinion on these supposed cases. The present case is alto- gether different. There is a marked distinction between an act done for the purpose of protecting the property by preventing a felon}-, or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done." Second, that it cannot be inferred as matter of law that a master has authorized his servant to do an act which he could not lawfull}- do himself in tho circum- stances supposed by the servant to exist. In Poulton v. Railwa}- Co., L. R. 2 Q. B. 534, this proposition is thus expressed by Mr. Justice Shee (page 541): "An authority cannot be implied to have been given to a servant to do an act which, if his master were on the spot, the master would not be justified in doing on the assumption of a par- ticular state of facts." The servant in this case caused the arrest of a passenger because he supposed the freight due for transportation of the 246 STAPLES V. scnMiD. [chap. II. passenger's horse had not been paid. If the supposition had been true, the arrest would have been unlawful, and there could be no implied authority, because the limit of the servant's powers was defined by act of parliament. In the same case, Blackburn, J., says (page 538) : " There can be no question that where a railway company, or any other body, have upon the spot a person acting as their agent, that is evidence to go to the jury that that person has authority to do all those things on their behalf which are right and proper in the exi- gencies of their business, — all such things, as somebody must make up his mind, on behalf of the company, whether they should be done or not ; and the fact that the company are absent, and the person is there to manage their affairs, is prima facie evidence that he was clothed with authority to do all that was right and proper ; and if he happens to make a mistake, or commit an excess, while acting within the scope of his authority, his employers are responsible for it." In applying the principle of this case, its limitations must not be forgotten. 1. It is a rule for the court, in the absence of evidence bearing upon the issue. It does not prevent a logical inference of fact from proven facts, even when that inference is that the master has directed a wrong. The court of appeals of New York, in Lynch v. Railroad Co., 90 N. Y. 77, found that the jury were justified in believing from the evidence that the gate-keeper was expected hy the company to detain persons who refused to present tickets or to pay their fares. The scope of the employment being thus ascertained, they say (page 86) : " In any- thing that he did he did not act for any purpose of his own, but to discharge what he believed to be his duty to bis principal. It matters not that he exceeded the powers conferred upon him by his principal, and that he did an act which the principal was not authorized to do, so long as he acted in the line of his duty, or, being engaged in the ser- vice of the defendant, attempted to perform a duty pertaining, or which he believed to pertain, to that service. He detained the plaintiff at the [railroad] station, caused his arrest, went with the police officer to the police station, there made a complaint, and then the next morn- ing appeared before the police magistrate, and renewed his complaint. These were successive steps taken bj* the gate-keeper to enforce the payment of the fare b}' the plaintiff, or to punish him for refusing to pay it, and for all that he did the defendant is responsible." See, also, Smith V. Webster, 23 Mich. 298 ; Barden v. Felch, 109 Mass. 154. 2. Neither does this principle forbid the court to imply the responsi- bility^ of the master for the wrongful or excessive exercise of the ser- vant's discretion in a case where the act done would have been lawful if the supposed circumstances had been real. This limitation, care- fully made by Mr. Justice Shee, seems to have been ignored in the case of Mali v. Lord, 39 N. Y. 381, which is cited by counsel as deci- sive of the case at bar. The opinion delivered by Judge Grover, rests the case upon the reasoning of Poulton v. Railway Co., but makes, as SECT. II.] STAPLES V. SCHMID. 247 we think, an unwarranted extension of it. The court say (page 384) ; "It cannot be presumed that a master, by intrusting his servant with his property, and conferring power upon him to transact his business, thereby authorizes him to do any act for its protection that he could not lawfully do himself if present. The master would not, if present, be justified in arresting, detaining, and searching a person upon suspicion, however strong, of having stolen his goods, and secreted them upon his person. The authority of the superintendent could not, therefore, be implied from his employment." It is quite true that the master would have had no right to arrest and search an innocent person ; but it is equal]}' true that he would have had the right to detain a thief, and to recapture his property from him. The case, therefore, was one where the act, aside from any excessive force, might be law- ful or unlawful according to whether the supposed circumstances were real or unreal. The servant was left in a situation where he was obliged to determine the fact, and where his duty to his master depended upon his decision. The decision was his, as the substitute of the mas- ter, and the act was one intended by him to be for his master's benefit, and which his duty required if the facts were as supposed ; hence, as to third persons, it was the master's act. The criterion of the mas- ter's liabilit.y can never be whether the act would have been lawful for the master to have done in the circumstances as the}- actually existed. It remains to apply these principles to the case at bar. The servant in this case was left with an assistant in charge of his master's store. His ordinar}- duties undoubtedly were to show goods, and to sell them to customers. It was, however, equally his duty to protect his mas- ter's property from pilfering. Tlie acts complained of were evidentlv done with that intention. The arrest was for the purpose of searching for and recovering the master's property, not with the object of pun- ishing crime against the public. The establishment was not a railroad station where the multiplicit}' of employees confines each one to a nar- row round of duties, where special officers are stationed to preserve order and detain criminals ; nor a large diy goods emporium, where detectives and watchmen are employed to guard against thieves. The servant here was salesman and custodian in one. Whatever the mas- ter might do in the protection of liis property he expected his servant to do in his absence. If the servant had seen the plaintiff take up and secrete the package of spoons in question, and had allowed her to walk away with them unmolested, could an}' one say that he had not been derelict in his duty to his master? If, in the performance of this duty, he mistook the occasion for it, or exceeded his powers, or employed an improper degree of compulsion, the mistake and the excess must be answered for by the master. We conclude, therefore, that the direc- tions asked by the defendants were rightly refused, and that the charge correctly stated the law of the case. We are not convinced by an examination of the testimony that the preponderance of evidence is so strongly against the verdict as to warrant us in disturbing it. If the 248 BOWLER V. O'CONNELL. [CHAP. 11. jur}' believed the plaintiff instead of the clerk and the police officer, they were justified in finding the verdict of guilt}'. The damages, how- ever, which were awarded are grossly excessive as compensation for the wrong which the plaintiff suffered. They must have been estimated on the supposition that exemplary or punitive damages were allowable in a case of this kind. The law upon this point was settled at an early da}' by this court in the case of Hagan v. Railroad Co., 3 R. I. 88, where the late Chief Justice Brayton clearly shows that, unless the principal participates in or approves the wrong of his servant, he can be held only for the actual damages occasioned thereby. The opinion of Judge Brayton is quoted with approval by the supreme court of the United States in the recent case of Lake Shore & M. S. Railway Co. V. Prentice, 147 U. S. 101. For this reason we think a new trial should be granted, unless the plain tiif will consent to remit the damages in excess of the sum of $100.^ BOWLER V. O'CONNELL. Supreme Judicial Court of Massachusetts. 1894. [162 Mass. 319]. Tort, for personal injuries occasioned to the plaintiff by being kicked by a colt belonging to the defendants. At the trial in the Superior Court, before Mason, C. J., the jury returned a verdict for the plaintiflT; and the defendants alleged exceptions. The material facts appear in the opinion. O. D. Robinson, ( T. B. O'Bonnell with him) , for the defendants. W. H. Brooks, for the plaintiff. Allen, J. In determining the legal question which is presented, we must assume that the jury adopted the plaintiff's view as to the circumstances attending the accident, and the testimon}' in contradic- tion thereof may be disregarded. With reference to this aspect of the case, the defendants asked an instruction to the jury that they were not responsible for the acts of Frank O'Connell, who was thirteen years of age and the son of one of the defendants, in his invitation to the plaintiff to take a ride upon the colt. The jury, however, were instructed that, if Frank O'Connell was the servant of the defendants in leading the colt from the stable to the defendants' yard, and while so leading the colt the plaintiff, who was between five and six years of age, was invited b}' Frank to ride, and was injured as he was going 1 As to causins: arrest, compare Goff v. Great Northern Railway Co., 3 E. & E. 672 (1861) ; Palmeri v. Manhattan Railway Co., 133 N. Y. 261 (1892) ; Central Rail- way Co. V. Brewer, 78 Md. 394 (1894). See also Ramsden v. B. & A. Railroad Co., 104 Mass. 117 (1870). — Ed. SECT. II.] BOWLER V. O'CONNELL. 249 forward to accept the invitation, it would be competent for the jury to find that such invitation was within the scope of the employment of Frank ; and again, that if, while Frank was leading the colt along or across the sidewalk or in the ^ard of the defencUuils, as the servant of the defendants, and, while so leading the colt in ihe line of his duty, he of his own accord, and witliout the knowledge or authority of or direction from the defendants, invited the plaintiff to ride upon the horse, and while the plaintiff was attempting to go forward to accept the invitation of Frank he was injured, it was competent for the jury to hnd the action of Frank to be negligent, and such negligence to be within the scope of his employment. The correctness of these instructions is to be determined witli reference to the testimou}' in the case. The colt, it would seem, was about two years and nine months old. It was not harnessed into a wagon, but the boy Frank, who must be assumed to have been in the defendants' employment, was leading it from the watering-tub to his stall, or to some other place. The defendants were contractors and excavators, and owned many teams. There was nothing to show that it was any part of their business, or that it was their habit or custom, to furnish horses or colts to ride, or to allow boys to ride upon them, or that they in any way ever authorized or permitted Frank to do this. Under this state of things, we are unable to see how the invitation b}' Frank to the plaintitf to ride upon the colt, although given while Frank was engaged in his employment, can be considered to be an act done in the course of such employment, or for the purpose of doing the business of his masters. The true test of liability on the part of the defendants is this. Was the invitation given in the course of doing their work, or for the purpose of accomplishing it? Was this act done for the purpose, or as a means, of doing what Frank was employed to do? If not, then in respect to that act he was not in the course of the defendants' business. An act done by a servant while engaged in his master's work, but not done as a means or for the purpose of performing that work, is not to be deemed the act of the master. And under this rule, in view of the testimony, the defendants were not responsible for the consequences of Frank's invitation to the plaintiff to ride upon the colt. Howe V. Newmarch, 12 Allen, 49; Hawks v. Charleraont, 107 Mass. 414; Hawes v. Knowles, 114 Mass. 518; Levi v. Brooks, 121 Mass. 501; George v. Gobey, 128 Mass. 289, 290; Wallace v. Merrimack River Navigation & Express Co., 134 Mass. 95 ; Walton v. New York Central Sleeping Car Co., 139 Mass. 556 ; Young v. South Boston Ice Co., 150 Mass. 527 ; Mitchell v. Crassweller, 13 C. B. 237 ; Croft V. Alison, 4 B. »Sc Aid. 590 ; Limpus v. London General Omnibus Co., 1 H. & C. 526 ; Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259, 265 ; Storey v. Ashton, L. R. 4 Q. B. 476 ; British Mutual Bank- ing Co. V. Charnwood Forest Railway, 18 Q. B. D. 714; Snyder v. Hannibal & St. Joseph Railroad, 60 Mo. 413, 419 ; Morier v. St. 250 ILLINOIS CENTRAL RAILROAD CO. V. LATHAM. [CHAP. IL Paul, Minneapolis, & Manitoba Railway, 31 Minn. 351 ; Davis v. Houghtellin, 33 Neb. 582. There ma}' be cases where injuries result from accepting unauthorized invitations to ride which do not fall within the above rule, and are to be distinguished. Such cases may be found in the books, and need not be considered here, the circumstances being different. Under the circumstances disclosed in the present case, it was not competent for the jur}' to find that the invitation given to the plaintiff to ride was within the scope of Frank's employment, and for this reason there must be a new trial. Exceptions sustained. ILLINOIS CENTRAL RAILROAD CO. v. LATHAM. Supreme Court of Mississippi. 1894. [16 So. R. 757.] Appeal from Circuit Court, Panola county : Eugene Johnson, Judge. " To be officially reported.'- Action by Lincoln Latham against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Re- versed. Mayes