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1853.

MITCHELL

0. CRASSWELLER.

to any amendment which tends to promote the trial of the substantial question between the parties. I am, however, quite satisfied that the defence was admissible on the record as originally framed. The declaration alleges, that, on a certain day, 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 allegation were traversed, it would be established by proof of any driving by their servant at any time: it is therefore an immaterial allegation. Then, because they have not already 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 improperly 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," &c. I think “not guilty” puts in issue whether at the time of the accident the driver of the cart was the servant of the defendants. That brings us to the principal point, whether, under the circumstances 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 duty of the carman, on his arrival with the horse and cart at Welbeck Street, immediately to take them to the stable, he, in violation of that duty, and without the sanction or knowledge of his employers, instead of going to the stable, started on

1853.

MITCHELL

CRASSWELLER

a new journey, wholly unconnected 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 griev. ance. 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 declaration states, that, on the 8th of September, 1852, the defendants were possessed of a certain cart and horse, which was being driven by and under the care and direction of their servant; and then it alleges, that, at another time,--the date being left uncertain,-whilst the plaintiff Dorothy was crossing a certain street called Grafton Street, the defendants, by their said servant, so negligently and improperly drove and directed the said cart and horse along the said street, that the said cart and horse ran against the plaintiff Dorothy, and did the injury complained of. The declaration would have been perfectly good if it had altogether omitted the allegation that the defendants were possessed of a cart and horse. What is traversed by "not guilty," is, that the defendants, by their servant, negligently drove the cart and horse against the plaintiff. That brings us to the real question. The facts were these :--The defendants' carman, having finished his business, had nothing further to do but to drive the horse to the stable. At the time of the accident, he was not going a roundabout way to the stable, or, as one of the cases expresses it, making a detour. He was not engaged in the business of his employers. But, in violation of his duty, so far from doing what he was employed to do, he did something totally

1853.

MITCHELL

CRASSWELLER.

inconsistent with his duty, a thing having no connection whatever with his employers' service. The servant only is liable, and not the employers. All the cases are reconcileable with that. The master is liable even though the servant, in the performance of his duty, is guilty of a deviation or a failure to perform it in the strictest and most convenient manner. But, 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, and therefore is not responsible for the negligence of the servant in doing it.

CRESSWELL, 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 guilty. I do not think the Lord Chief Justice was wrong in allowing the third plea to be added: but, in the absence of information as to the case said to have been decided in the court of Queen's Bench, I abstain from saying anything on that point. 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 may be liable. But, here, the man was doing something which he knew to be contrary to his duty, and a violation of the trust reposed in him. The expression used by him at the time he started upon the unauthorised journey, shewed 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.

1853.

MITCHELL

CRASSWELLER.

Williams, J. I am entirely of the same opinion : and I must say I should have been extremely sorry if any authority 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 duty and his negligence, acting in the employ 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 committing of the injury, the defendants might have traversed the inducement. But, here, the introductory 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 by their servant. The allegation, therefore, was immaterial, and not traversable. As to the construction of the 222nd section of the 15 & 16 Vict. c. 76, I do not profess to have formed any opinion.

Rule discharged.

1853.

a

to A. on the

In an action

ROWE v. TIPPER.

Jan. 27. ASSUMPSIT by indorsee against indorser of a bill of A bill indorsed

by A. to B., exchange.

and by B. to The declaration stated that one Green, theretofore, to C., became due

on Saturday, wit, on the 12th of July, 1851, made his bill of exchange the 15th of

November, and in writing, and directed the same to Messrs. Knight & was

was presented, Co., and thereby required them to pay to his order the and dishonour

ed. C. gave sum of 521. 93., four months after the date thereof, for notice of dis

honour to B., value received, which period had elapsed before the com- on Monday, mencement of the suit; that Green indorsed the bill to the the 17th, and defendant ; that the defendant indorsed it to one Abley; following day,

-B. having and that Abley indorsed it to the plaintiff, before it be- given no notice. came due; and that Knight & Co. did not pay the said

by C. against A., bill, although the same was duly presented to them for --Heid, upon

an issue on a payment, on the day when it became due,--of all which plea traversing the defendant then had due notice, and then, in consi- the notice of

dishonour, that deration of the premises, promised the plaintiff to pay the notice was him the amount of the said bill, on request.

The bill was

placed in the By his sixth plea, the defendant traversed the notice of hands of D. for dishonour.

the purpose of receiving

pay: The cause was tried before Cresswell, J., at the second ment :—Heid,

that D. was sitting in London, in Michaclmas Term last. It ap- sufficiently peared that the bill was duly presented when it became authorised to

give a notice of due, viz. on Saturday, the 15th of November, 1851, at dishonour on

behalf of the the place where it was made payable, and was disho- holder. noured; that the plaintiff, on the 17th of November, gave notice of dishonour to Abley, and on the 18th (through the agency of one Delane) gave notice to the defendant.

On the part of the defendant, it was insisted that the notice to him was too late, and that there was no evi

too late,

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