in this prosecution previous to the filing of the information, ought leave to have been given to file the information? or ought a nolle prosequi to be directed? 3. Any other question of law arising on the proceedings. PARKER, J. In considering these questions, the court perceives, from the capias against White, referred to, and the return of the deputy sheriff thereon, that this is, in fact, a criminal proceeding against a high sheriff for the negligence or misfeasance of his deputy; and that it is a prosecution in the county of Richmond for an act done in Essex. Thinking that the high sheriff is not thus liable, and that if he was, he could only be proceeded against, in the mode here adopted, in the county of Essex, where the act complained of was committed; and waiving other objections, such as the want of leave to file the information, which the demurrer might raise. "This court is of opinion, upon the whole case, that as the offense was committed in the county of Essex, the Circuit Superior Court for the county of Richmond had no jurisdiction thereof in this mode of proceeding; and that as the misconduct charged in the information was the act of the deputy sheriff, and not of the high sheriff, the latter is not liable to be indicted therefor; and therefore that no information ought to have been filed against the said Lewis, and that a nolle prosequi ought to be directed to be entered by the said superior court." PRINCIPAL AND AGENT-MASTER AND SERVANT-OFFICERS AND SOLDIERS-NEGLIGENCE - ACCIDENT. R. v. HUTCHINSON. [9 Cox, 555.] Before Mr. Justice BYLES, Devon, 1864. 1. The Liabilities of Officers and Soldiers for the consequences of acts done in obedience to their orders considered. 2. Negligence-Accident-Officer and Soldier. - A gun discharged in the ordinary and regular course of ball practice by an artillery man in a garrison town, missed the mark, and killed a man who was lawfully passing near the spot in a boat. The artillery man who fired the gun was acting under the command of a superior officer who was acting in obedience to the general orders of the major-general. Held, that the majorgeneral was not guilty of manslaughter. The defendant Major-General Hutchinson was found by the coroner's inquisition guilty of manslaughter, in having caused the death of a boatman under the following circumstances: The defendant was com mandant of the forces at the garrison in Plymouth. A target was placed in the sound, under the general directions of the Horse Guards, and the artillerymen were accustomed to practice by firing at it with ball. On the 2d of July, 1864, while such practice was proceeding, a ball missed the target, and striking the waves, ricochetted, and hit a boatman who was taking a boat across the sound, in the lawful and proper exercise of his vocation, and in a place where he might lawfully be. Lopez, appeared for the prosecution. E. W. Cox, for the defendant. The grand jury having thrown out the bill, the jury were charged on the coroner's inquisition. Lopez said that having read the remarks made by his lordship to the grand jury, and entirely agreeing with the views of the law applicable to it which had been there so ably laid down, and considering also that the bill of indictment which had been prepared had been thrown out by the grand jury, he should offer no evidence; but he trusted that the authorities would take some means to protect the public against the danger of the ball practice, which had been so often complained of in vain, and of which their worst predictions had been verified. BYLES, J., said that the counsel for the prosecution had adopted a very proper course; indeed, in no case, could he permit a trial to take place on the coroner's inquisition, where the grand jury had thrown out a bill for the same offense, for to do so would be to constitute the petty jury a court of appeal against the grand jury. He would not now repeat the remarks he had made when addressing the grand jury and they would merely say that the prisoner was Not guilty. The following were the comments addressed to the grand jury, and referred to in the remarks to the petty jury, and which contain so excellent and useful a summary of the law bearing upon this case that we place it upon record: BYLES, J. There was one case of an unusual kind, and no doubt it would require their full and attentive consideration. He could only collect the facts from the depositions taken before the coroner, which were extremely long and very vague, so that he hardly knew in what shape the charge would be presented to them. All he could do would be to call their attention to an outline of the facts, and to remind them of the law which governed the imputed offense, and the evidence given in support of it. The defendant was a gentleman of high rank, a general in her Majesty's army; he had the command of the forces in the western district; and it appeared that on the 2nd of July firing practice took place from the battery over Plymouth Sound. One of the balls, whether it turned to the right or left he could not tell, passed through the bottom of a boat, unfortunately striking the deceased breaking both his legs and his spine, and the unhappy man, who was only nineteen years of age, died in a short time afterwards. Some persons, who were happily at hand, saved the other persons who were in the boat. The defendant had the general superintendence and control, and it was alleged that he was responsible for the act. He begged to remind them that manslaughter was when one man was killed by the culpable negligence of another. A slight act of negligence was not sufficient; all men and women were negligent at some time; it would depend upon the degree of negligence. A slight deviation from proper care and skill was not sufficient; it must be culpable negligence. By way of illustration, suppose a man was to fire a gun in a field where he saw no one, and as he fired another man suddenly raised his head from a ditch; he could not say that that man would be guilty of manslaughter; it would be held not to be culpable negligence. But supposing a man were to fire down the High Street of Exeter because he saw no one, and some one was suddenly to appear and he was killed, that would be culpable negligence in the man who fired the gun. There was one observation he must make. It would seem, and he thought the result showed it, that the boat was within the range of fire; but that was no defence. If the unfortunate man had not been killed and had brought an action for damages, or if his wife and family under Lord Campbell's act, had brought an action if he had in any degree contributed to the result he could not maintain an action. But in a criminal case it was different. The Queen was the prosecutor, and could be guilty of no negligence; and if both the parties were negligent, the survivor was guilty, and therefore it was no defence that the boat was within the danger. He could only speculate upon the negligence imputed in the case. First, he did know that it would be said that it was an improper place, whether to fire from, or to fire over. The gun was fired from one of the batteries kept on purpose for practice. It was said that this battery was too low, but that was not the point of defence. Therefore, subject to their better judgment, nothing could be imputed to the defendant as to the place whence the gun was fired. Then as to the place over which it was fired. Had the defendant the selection of it? Then, in using the place, although an improper one, was he obeying military orders? If so, he would not be guilty. But, supposing it was a place in some degree improper, in some degree dangerous, and he had selected it, still it did not follow that he would be guilty. Common danger did not make the place improper. He was a man performing a most important duty. Supposing, therefore, that the defendant had been personally engaged in the firing, if he thought that the place from which the gun was fired was not improper, and that the place to which the firing was directed was not improper, assisted by additional precautions which might be used, he would not be responsible, because he was acting under the direction of superior authority. It seemed that complaints have been made by a great many persons residing in Plymouth and Davenport, and he must beg their attention to the orders the defendant had given. The Major-General would impress upon the officers in command to see with the utmost diligence that the range was free before the firing. Then, there was a second order. The Major-General strictly impresses upon the officers the necessity of seeing that all was free, as he should hold them personally responsible. He had hitherto supposed that the defendant had personally to do with the firing; and if he had, he would not be guitly of manslaughter. But the next question was did he personally superintend the firing, or did he not? They would see whether he did or not. Was he guilty of a breach of duty in not personally superintending the firing? He could not see that he was. Again, it might be said that if he had issued orders it was his duty to see that proper persons were appointed to keep a proper lookout; and if proper persons were nominated by him it did not appear whether they were properly disciplined, and it might be a question whether there was any negligence in them. There were persons with flags, but whether a proper lookout was kept, might possibly be doubtful; whether means were taken for keeping a proper lookout they would have to determine. Under these circumstances it would be for them to say whether negligence was brought home to the defendant. If they considered it was brought home to him, he knew they would find the bill. It would be an insult to them to insinuate that they would not do their duty. They would treat the defendant exactly as they would treat any person in an inferior position. They would not neglect to find the bill if it ought to be found, and no prejudice would weigh upon them to find the bill if it ought to be thrown out. CRIMINAL LIABILITY OF MASTER FOR ACT OF SERVANT-TEST OF LIABILITY. COMMONWEALTH v. NICHOLS. [10 Metc. 259; 43 Am. Dec. 432.] In the Supreme Judicial Court of Massachussetts, October Term, 1845. 1. The Criminal Liability of a Master for the acts of his servant is narrower than his civil liability. There must be a direct participation in the act or such assent and concurrence therein, as would involve him morally in the guilt of the action. 2. A Sale by a Servant in the Shop of His Master is only prima facie evidence of such sale by the master, in a prosecution against him for violating the statute forbid. ding the sale of intoxicating liquors. 3. If a Sale of Liquors is made by a Servant, without the knowledge of his master and in opposition to his will, and the sale is not participated in nor approved by him, the master is not criminally liable. Indictment for selling spirituous liquors without a license. The judge instructed the jury that if they were satisfied beyond a reasonable doubt, that the sales were made by the defendant or any person in his employ and in his shop, they would be warranted in finding him guilty. The other facts appear in the opinion. B. F. Butler, for the defendant. By the Court, DEWEY, J. The question here raised as to the liability of the principal to be punished criminally for the acts of his agent or servant, in which he does not directly participate personally, is certainly not free from difficulty. As to civil liabilities a broader and more general principle of responsibility applies and the master or principal may be held to answer in damages for default and misdoings, with which he had no other connection than that which arises from the fact that the injury was occasioned by one employed in his service. As a general rule something beyond this is necessary to charge the master criminally for acts done by the servant. There must be such a direct participation in the act or such assent and concurrence therein as would involve him morally in the guilt of the action. Hence the cases are comparatively rare and may be considered as exceptions to the general rule when by legal rules a party is charged eriminally for acts of his servants done without his knowledge and assent. The case of a bookseller or publisher of a newspaper is to some extent one creating such liability; to what precise extent is perhaps as yet an unsettled question. Rex v. Almon,1 a leading case on that subject, only carried the doctrine so far as to hold that such relation to the act of sale by a servant was prima facie evidence to establish the liability of the party, but was not conclusive and might be controlled. It was said by Lord Mansfield, that he might avoid the effect of it by showing "that he was not privy nor assenting to it nor encouraging it." So, also, it is said that the defendant in such cases may rebut the presumption by showing that the libel was sold contrary to his orders or under circumstances negativing all privity on his part.2 The general rule, however, has been stated, I think, somewhat more broadly as to the liability of booksellers and publishers respecting all publications issued from their establishments in the regular course of 1 5 Burr. 2686. 22 Stark. on Slander (2d ed.), 34. |