that the master himself had notice of it, or he could have no defence to the action. In an action on a farrier's bill, it appeared, that the defendant, by an agreement with the groom, allowed him five guineas a-year, for which he was to keep the horses properly shod, and furnish them with proper medicines when necessary. Lord Kenyon said, that it was no defence to the action, unless the plaintiff knew of this agreement, and expressly trusted the groom. That if the servant buys things which come to his master's use, the master should take care to see them paid for; for a tradesman has nothing to do with any private agreement between the master and servant. But where an express authority is not given by the master, and from the nature of the case an authority cannot be implied, the master is not liable. Hence, where the chaise of the master had been broken by the negligence of his servant, and the servant desired a coachmaker who had never been employed by the master, to repair it, which was accordingly done, and the master refusing to pay the amount of the bill sent in by the coachmaker, he insisted on retaining the chaise as a lien; Lord Ellenborough, C. J., was of opinion, that the coachmaker was not entitled so to retain it; for whatever claim of that sort he might have, he must derive it from legitimate authority; that unless the master had been in the habit of employing the tradesman in the way of his trade, it should not be in the power of the servant to bind him to contracts of which the master had not any knowledge, and to which he had not given any assent. It was the duty of the tradesman, when he was employed, to have inquired of the principal, whether the order was given by his authority; but having neglected to do so, the master was not liable to the demand, and the detainer of the chaise was unlawful. When the master is in the habit of paying ready money for articles furnished in certain quantities to his family, if the tradesman delivers other goods of the same sort to the servant, upon credit, without informing the master of it, and the latter goods do not come to the master's use, the master is not liable. A master contracted with a tradesman to serve him with articles for ready moneyt, and the master gave his servant money to pay for the articles, which was done accordingly; after some time, the master turned away his servant and took another, to whom he gave money as before;

q Precious v. Abel, 1 Esp. N. P. C. 350.

r Hiscox v. Greenwood, Esp. N. P. C. 174. See Maunder v. Conyers, 2 Stark. N. P. C. 281.

s Pearce v. Rogers, 3 Esp. N. P. C. 214. See also 1 Show. 95.

t Stubbing v. Heintz, Peake's N. P. C. 47.

the second servant did not pay the tradesman, and afterwards ran away: an action having been brought by the tradesman against the master, it was holden, that the master was not liable to pay the money again (2). A journeyman to a baker was holden a good witness to prove the delivery of bread to the defendant, without a release, in a case where there was not any evidence of an usage for the journeyman to receive the money for the bread delivered. A clerk who receives money for his master is a good witness to prove that he has paid it over to his master, ex necessitate rei, without release.

III. Of the Liability of the Master in respect of a tortious Act done by the Servant.

An action on the case will lie against a master for an injury done through the negligence or unskilfulness of the servant acting in his master's employ. As where the servants of a carman ran over a boy in the streets, and maimed him by negligence, an action was brought against the master, and the plaintiff recovered. So where the servant of A.b, with his cart, ran against the cart of B., which contained a pipe of wine, whereby the wine was spilled; an action was brought against A., the master, and holden to be maintainable. An action on the case is the proper remedy for an injury of this kind, and not an action of trespass. In these cases, if the declaration state that the defendant (the master) negligently drove his cart, &c., it will be supported by evidence that the defendant's servant drove the cart. In case for negligently driving against the plaintiff's horse, the plaintiff's servant, in whose charge the horse was, is not a competent witness for

y Adams v. Davis, 3 Esp. N. P. C. 43. Eldon, C. J.

z Matthews v. Haydon, 2 Esp. N. P. C. 509.

a 1 Raym. 739. ex rel. M'ri Place. b Id.

c Morley v. Gaisford, 2 H. Bl. 443. d Brucker v. Fromont, 6 T. R. 659.

(2) It was said by Lord Kenyon, in this case, that if the master employs the servant to buy things on credit, he will be liable to whatever extent the servant shall pledge his credit.

the plaintiff without a release. But in an action for a similar injury, the defendant's servant may be a witness for him without a release; the objection to the witness is now removed under the stat. 3 & 4 W. 4. c. 42, ss. 26, 27, by making an indorsement on the record, according to the directions of the statute. To an action on the case against several partners, for negligence in their servant, whereby the plaintiff's goods were lost, it cannot be pleaded in abatement that there are other partners not named. Having stated the cases in which the law considers the master as responsible for the injurious act of his servant, it may be proper to observe, that where the servant commits a wilful trespass, without the direction or assent of the master, an action of trespass will not lie against the master: in such case the servant only is liable. As, where a servant of the defendant wilfully drove the defendant's chariot against the plaintiff's chaiseh; an action of trespass having been brought against the defendant, it appeared in evidence, that the defendant was neither present at the time when the injury was committed, nor had he in any manner directed or assented to the act of his servant; it was holden, that the action could not be maintained. 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 difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done done in pursuance of the master's employment. Where an injury happens through the misconduct of a servant in driving his master's carriage, it was holdenk, that the master was liable, if the servant be guilty of negligence whilst on his master's business, though he may be going out of the way; but not if the servant uses the carriage for his own purpose, and without his master's consent. Where one of a ship's crew wilfully injured another ship, without any direction from or privity of the master, it was holden, that trespass could not be maintained against the master, although he was on board at the time1. If a master

e Morish v. Foote, 8 Taunt. 454. Sherman v. Barnes, 1 M. & Rob. 69. S. P. These cases were before stat. 3 & 4 W. 4. c. 42, s. 26, 27. Harding v. Cobley, 6 C. & P. 664. S. P. per Denman, C. J. since the statute. f Pickles v. Hollings, 1 M. & Rob. 468. Parke, B.

g Mitchell v. Tarbutt and others, 5 T.

R. 649. See 2 Bos. & Pul. N. R.
365.

h M'Manus v. Crickett, 1 East, 106.
i Per Cur. Croft v. Alison, 4 B. & A.
592.

k Joel v. Morison, 6 C. & P. 501.
Parke, B.

1 Bowcher v. Noidstrom, 1 Taunt. 568. See Nicholson v. Mounsey, infr. p. 1125.

command his servant to do an illegal actm, the servant as well as the master, will be liable to the party injured; for the servant cannot plead the command of the master in bar of a trespass. An action on the case was brought against a master and his servant, for breaking a pair of horses in Lincoln's Inn Fields, where, being unmanageable, they ran against and hurt the plaintiff; it appeared that the master was absent; but it was holden, on motion in arrest of judgment, that the action would lie; for it should be intended that the master sent the servant to train the horses there. In an action on the case against the defendant for causing a quantity of lime to be placed on the high road, by means of which the plaintiff and his wife were overturned and much hurt, and the chaise in which they then were was considerably damaged; it appeared that 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, employed 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. In support of the action, it was contended, that the act which caused the injury complained of, was an act done for the benefit of the defendant, and in consequence of his having authorized others to work for him; and although the person by whose neglect the accident happened was the immediate servant of another, yet, for the benefit of the public, he must be considered as the servant of the defendant. If the defendant was not liable, the plaintiff might be obliged to sue all the parties who had subcontracts before he could obtain redress. On the part of the defendant, it was urged, first, that the cause of action did not arise on the defendant's premises, the complaint being, that a quantity of lime, which should have been placed there, was actually laid on the high road: that being the case, there was no authority to shew that the defendant was liable, merely because the act from which the injury arose was done for his benefit. If that general proposition were true, it might be contended, that the defendant must have answered for any accident which might have happened during the preparation of the lime in the lime-burner's yard. Secondly, that the liability of the principal to answer for his agents, is founded in the superintendance and control which he is supposed to

m Sands v. Childs, 3 Lev. 352.

n Michael v. Alestree and another, 2
Lev. 172. See ante, p. 440.
o Bush v. Steinman, 1 Bos, and Pul.

404. See Matthews v. West Mid. Water Works Company, 3 Campb. 403. and Harris v. Baker, 4 M. and S. 27.

have over them. 1 Bl. Com. 431. In the civil law, that liability was confined to the person standing in the relation of pater familias to the person doing the injury. Inst. lib. 4. tit. 5. § 1. Dig. lib. 9. tit. 3. And though in our law it has been extended to cases where the agent is not a mere domestic, yet the principle continues the same. Now clearly it was not in the power of this defendant to control the agent by whom the injury to this plaintiff was effected. He was not employed by the defendant, but by the lime-burner; nor was it in the defendant's power to prevent him, or any one of the intermediate sub-contracting parties, from executing the respective parts of that business which each had undertaken to perform. The court, however, were of opinion, that the action would lie; and that it was competent to the plaintiff to bring his action either against the person from whom the authority flowed, or against the person by whom the injury was actually committed.

The defendant, a gentleman usually residing in the country, being in London for a few days with his own carriage, sent in the usual way to a stable-keeper for a pair of horses for a day. The stable-keeper accordingly sent a pair, and a person to drive them. The defendant did not select the driver, nor had he any previous knowledge of him; but the stable-keeper sent such person as he chose for his purpose. The driver had no wages from his master, but depended on receiving a gratuity from the person whose carriage he drove; the defendant in this case gave him five shillings as a gratuity; by reason of his negligent driving, the plaintiff's horse sustained an injury; whereupon an action was brought. The Court of King's Bench were equally dividedP: Abbott, C. J. and Littledale, J. holding that the defendant was not liable: Bayley, J. and Holroyd, J. contra. A and B. were partners in the business of public carriers; by agreement between them, A. provided horses and drivers for certain stages, and B. for the remainder. It was holden 9, that notwithstanding this division of the concern between them, they were responsible for the misconduct and negligence of their drivers and servants throughout the whole distance. And that it was not any defence to B. that the servant, through whose negligence an injury had been committed, had been hired and was paid by A. alone. The captain of a king's ship

p Laugher v. Pointer, 5 B. and C. 547. See remarks of Ld. Abinger, C. B. in Brady v. Giles, 1 M. & Rob. 495. on this case.

q Weyland v. Elkins, Holt's N. P. C.

227. Gibbs, C. J.