is, among other things, to see that passengers do not get into wrong trains or carriages (but not to remove them from a wrong carriage), asks a passenger who has just taken his seat where he is going. The passenger answers, "To Macclesfield." The porter, thinking the passenger is in the wrong train, pulls him out; but the train was in fact going to Macclesfield, and the passenger was right. On these facts a jury may well find that the porter was acting within his general authority so as to make the company liable (b). Here are both error and excess in the servant's action: error in supposing facts to exist which make it proper to use his authority (namely, that the passenger has got into the wrong train); excess in the manner of executing his authority, even had the facts been as he supposed. But they do not exclude the master's liability.

"A person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine,

(b) Bayley v. Manchester, Sheffield and Lincolnshire R. Co. (1872-3), L. R. 7 C. P.

415, 41 L. J. C. P. 278, in Ex. Ch. 8 C. P. 148, 42 L. J. C. P. 78.

it, defendant company was liable. Schulz v. Third Ave. R. Co., 46 N. Y. Super. Ct. 211.

In Pennsylvania R. C. v. Toomey (91 Pa. St. 256), it was held, that a railroad company is responsible for an ejectment from a car, by the conductor, when the act was wrongful or reckless, but not when it was malicious. See New York, etc., Ry. Co. v. Haring, 47 N. J. L. 137; Higgins v. Watervliet, etc., Co., 46 N. Y. 23; 7 Am. Rep. 293; Coleman v. New York, etc., R. Co., 106 Mass. 160; Hoffman v. New York, etc., R. Co., 87 N. Y. 25; 41 Am. Rep. 337; Pennsylvania R. Co. v. Vandiver, 42 Pa. St. 365; New York L. E. & H. R. Co. v. Harring, 47 N. J. L. 137; Randolph v. Hannibal & St. J. R. Co., 18 Mo. App. 609; Kansas City, etc., R. Co. v. Kelly, 36 Kan. 655; Wabash R. Co. v. Savage, 110 Ind. 156; Savannah St. R. Co. v. Bryan, 86 Ga. 312; 12 S. E. Rep. 307; Meyer v. Second Ave. R. Co., 8 Bosw. 305; Chicago & E. R. Co. v. Flexman, 103 Ill. 346; 8 Am. & Eng. R. Cas. 354; 42 Am. Rep. 33; Stewart v. Brooklyn, etc., R. Co., 90 N. Y. 588; 43 Am. Rep. 185; Terre Haute & I. R. Co. v. Jackson, 81 Ind. 19; Campbell v. Pullman Palace Car Co., 42 Fed. Rep. 484; Illinois Cent. R. Co. v. Sheehan, 29 Ill. App. 90; Same v. Smith, Id. 94; Croaker v. Chicago & N. W. R. Co., 39 Wis. 657; 17 Am. Rep. 504; Jardine v. Cornell, 50 N. J. L. 485; 14 At. Rep. 590; Sanford v. Eighth Ave. R. Co., 23 N. Y. 343; Goddard v. Grand Trunk Ry., 57 Mo. 202.

according to the circumstances that arise, when an act of that class is to be done, and trusts him for the manner in which it is done; and consequently he is held responsible for the wrong of the person so intrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done; provided that what was done was done, not from any caprice of the servant, but in the course of the employment" (c).

Seymour v. Greenwood (d) is another illustrative case of this class. The guard of an omnibus removed a passenger whom he thought it proper to remove as being drunken and offensive to the other passengers, and in so doing used excessive violence. Even if he were altogether mistaken as to the conduct and condition of the passenger thus removed, the owner of the omnibus was answerable. "The master, by giving the guard authority to remove offensive passengers necessarily gave him authority to determine whether any passenger had misconducted himself."

Arrest of supposed offenders. Another kind of case under this head is where a servant takes on himself to arrest a supposed offender on his employer's behalf.

(c) Per Willes J., Bayley v. Manchester, Sheffield, and Lincolnshire R. Co., L. R. 7 C. P. 415, 41 L. J. C. P. 278.

(d) 7 H. & N. 355, 30 L. J. Ex. 189, 327, Ex. Ch. (1861).

Arrest of supposed offenders. The apparently severe rule of holding the master responsible for the servant's wrongful arrest is generally upheld where the conduct of the servant is within the scope of his employment and authority. The courts are rightly disposed to vigilantly guard the natural right to liberty against infraction, even by an erring servant. Accordingly it is held that a railroad is liable for the false arrest, by its ticket agent, of a passenger on charge of paying for a ticket with counterfeit money. Mulligan v. New York & R. B. R. Co., 14 N. Y. S. Rep. 456; S. P., Palmer v. Manhattan R. Co., 14 N. Y. S. Rep. 468. See Rown v. Christopher & T. R. Co., 34 Hun, 471; G. H. & S. A. Ry. Co. v. Donaho, 56 Tex. 165; Fortune v. Trainor, 19 N. Y. S. Rep. 598; Galveston, etc., R. Co. v. Donaho, 56 Tex. 162; 9 Am. & Eng. R. Cas. 287;

Here it must be shown, both that the arrest would have been justified if the offence had really been committed by the party arrested, and that to make such an arrest was within the employment of the servant who made it. As to the latter point, however, "where this is a necessity to have a person on the spot to act on an emergency, and to determine whether certain things shall or shall not be done, the fact that there is a person on the spot who is acting as if he had express authority is prima facie evidence that he had authority" (e). Railway companies have accordingly been held liable for wrongful arrests made by their inspectors or other officers as for attempted frauds on the company punishable under statutes or authorized by-laws, and the like (ƒ).

But

Act wholly outside authority, master not liable. the master is not answerable if the servant takes on him

(e) Blackburn J., Moore v. Metrop. R. Co. (1872), L. R. 8 Q. B. 36, 39, 42 L. J. Q. B. 23.

(Ib., following Goff v. G. N. R. Co., (1861), 3 E. & E. 672, 30 L. J. Q. B. 148.

Lynch v. Metropolitan, etc., R. Co., 90 N. Y. 77; 12 Am. & Eng. R. Cas.

119.

But it has been held, that an arrest by a servant is a departure from the course of employment, and that the master is not liable: as where employes in a store called a policeman and directed him to arrest and examine the person of a lady suspected of stealing goods, which was done without the authority of the proprietor. The court said: "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." Mali v. Lord, 39 N. Y. 381. See Mallach v. Ridley, 43 Hun, 336; Porter v. The C. R. J. & P. R. Co., 41 Ia. 358.

Act wholly outside authority, master not liable. Sustaining this proposition are numerous cases. Thus, in Golden v. Newbrand (52 Ia. 59), it was held, that where an armed watchman, employed to guard a brewery, shot a person who was retreating from the brewery, the act of shooting was not within the line of the watchman's duty. See Cardiff v. Louisville, etc., R. Co., 42 La. An. 477; 7 So. Rep. 601.

A railroad company is not liable for fire caused by section hands cook

self, though in good faith and meaning to further the master's interest, that which the master has no right to do even if the facts were as the servant thinks them to be; as where a station-master arrested a passenger for refusing to pay for the carriage of a horse, a thing outside the company's powers (g). The same rule holds if the particular servant's act is plainly beyond his authority, as where the

(g) Poulton v. L. & S. W. R. Co. (1867), L. R. 2 Q. B. 534, 36 L. J. Q. B. 294.

ing dinner on railroad embankment. Morier v. Minneapolis, etc., R. Co., 31 Minn. 351; 47 Am. Rep. 793.

Servants of house-mover, who, after their day's work is done, build steps for plaintiff, do not charge the house-mover with their negligence. Dells v. Stollenwerk, 78 Wis. 330; 47 N. W. Rep. 431.

A corporation, owning a parlor car in use on a railroad, is not liable for an injury to a person not a passenger, caused by the porter of the car, throwing from the car a bundle containing his personal effects, solely for his own convenience. Walton v. New York, etc., R. Co., 139 Mass. 556.

In the case of Gilliam v. South & N. A. R. Co. (70 Ala. 268), the facts were, in substance, that the conductor of a passenger train stopped his train, pursued a boy on foot, into the house of the boy's father, with a pistol in his hand, and seized and carried him off on the train; it was held, that these wrongful acts were not within the range of his employment and the company not liable. See Tharp v. Minor, 109 N. C. 152; 13 S. E. Rep. 152; Texas P. Ry. Co. v. Moody (Tex. App.), 23 S. W. Rep. 41; Yates v. Squires, 19 Ia. 26; Weldon v. Harlem R. Co., 5 Bosw. 576; McClenaghan v. Brock, 5 Rich. 17; Wilste v. State Board Bridge Co., 63 Mich. 639; 30 N. Y. Rep. 370; Walton v. New York, etc., Co., 139 Mass. 556; Noblesville, etc., Co. v. Gause, 76 Ind. 142; 40 Am. Rep. 224; Laffille v. New Orleans & L. R. Co., 43 La. An. 34; Marion v. Chicago, etc., R. Co., 59 Ia. 428; Thames Steamboat Co. v. Housatonic R. Co., 24 Conn. 40; Church v. Mansfield, 20 Conn. 284; Evansville, etc., R. Co. v. Baum, 26 Ind. 70; McCoy v. McKowen, 26 Miss. 487; Yerger v. Warren, 31 Pa. St. 319; Harris v. Nicholas, 2 Munf. 583; Little Miami R. Co. v. Wetmore, 19 Ohio St. 110; Chicago B. and S. R. Co. v. Epperson, 26 Ill. App. 72; Nashville & C. R. Co. v. Starnes, 9 Heisk. 66; Campbell v. Northern Pac. R. Co. (Minn.), 53 N. W. Rep. 768; McCarthy v. Bostou, 135 Mass. 197; Southern Exp. Co. v. Fitzner, 59 Miss.581; Foster v. Essex Bank, 17 Mass. 479; Crocker v. New London, etc., R. Co., 24 Conn. 249; Sheridan v. Charlick, 4 Daly, 338; Burke v. Shaw, 59 Miss. 445; 42 Am. Rep. 390; Cawthorn v. Deas, 2 Port. 275; Baker v. Kinsey, 38 Cal. 631; Long v. Chicago, etc., R. Co., 48 Kan. 28; 28 Pac. Rep. 977; Wilste v. State Board Bridge Co., 63 Mich. 639; 30 N. W. Rep. 370.

officer in charge of a railway station arrests a man on suspicion of stealing the company's goods, an act which is not part of the company's general business, nor for their apparent benefit (h). In a case not clear on the face of it, as where a bank manager commences a prosecution, which turns out to be groundless, for a supposed theft of the bank's property a matter not within the ordinary routine of banking business, but which might in the particular case be within the manager's authority - the extent of the servant's authority is a question of fact (i). Much must depend on the nature of the matter in which the authority is given. Thus an agent entrusted with general and ample powers for the management of a farm has been held to be clearly outside the scope of his authority in entering on the adjacent owner's land on the other side of a boundary ditch in order to cut underwood which was choking the ditch and hindering the drainage from the farm. If he had done something on his employer's own land which was an actionable injury to adjacent land, the employer might have been liable. But it was thought unwarrantable to say that an agent entrusted with authority to be exercised over a particular piece of land has authority to commit a trespass on other land" (j). More generally, an authority cannot be implied for acts not necessary to protect the employer's property, such as arresting a customer for a supposed attempt to pass bad money (k).

Wilful trespasses, etc., for master's purposes. (d) Lastly, a master may be liable even for wilful and deliberate

(h) Edwards v. L. & N. W. R. Co. (1870), L. R. 5 C. P. 445, 39 L. J. C. P. 241; cp.Allen v. L. & S. W. R. Co. (1870), L. R. 6 Q. B. 65, 40 L. J. Q. B. 55.

(i) Bank of New South Wales v. Owston (1879)(J. C.), 4 App. Ca. 270, 48 L. J. P. C.

25.

(j) Bolingbroke v. Swindon Local Board (1874), L. R. 9 C. P. 575, 43 L. J. C. P. 575.

(k) Abrahams v. Deakin, '91, 1 Q. B. 516 (C. A.), 60 L. J. Q. B. 238.

Wilful trespasses, etc., for master's purposes. The American authorities substantially agree with the text. Thus, in the case of Rogahn v.