wrongs committed by the servant, provided they be done on the master's account and for his purposes; and this, no

Moore Mfg. & F. Co. (79 Wis. 573; 48 N. W. Rep. 669), where the material facts were, that the plaintiff, who had been discharged by the defendant's foreman, was assaulted for not leaving the premises quickly enough to suit the foreman; the defendant was held liable. See Ramsden v. Boston & A. R. Co., 104 Mass. 117.

Where a servant in driving a strange cow from his master's field, killed the cow by striking her with a stone, the master was held liable. Evans v. Davidson, 53 Md. 245; 36 Am. Rep. 400. See Fraser v. Freeman, 56 Barb. 234; Cohen v. Dry Dock, etc., R. Co., 69 N. Y. 170; Geraty v. Stern, 30 Hun, 426; Dillingham v. Anthony, 73 Tex. 47; 11 S. W. Rep. 139; Weed v. Panama R. Co., 17 N. Y. 362; Pittsburgh, etc., R. Co. v. Sheilds, 47 Ohio St. 387; 24 N. E. Rep. 658; McKay v. Irvine, 11 Biss. 168; Marion v. Chicago, etc., Ry. Co., 59 Ia. 428; Birmingham Water Works Co. v. Hubbard, 85 Ala. 179; 4 So. Rep. 607; Johnson v. Barber, 10 Ill. 425; Harriman v. Railway Co., 45 Ohio St. 11; 32 Am & Eng. R. Cas. 37; Tuller v. Voght, 13 Ill. 277; Terre Haute & S. R. Co. v. Jackson, 81 Ind. 19; Bess v. Chesapeake & O. Ry. Co., 35 W. Va. 492; 14 S. E. Rep. 234.

But the master is not liable for a wrong designedly inflicted by the servant, where the act is neither authorized nor ratified by the master. Steele v. Smith, 3 E. D. Smith, 321; Garvey v. Dung, 30 How. Pr. 315; Cox v. Keahey, 38 Ala. 340: Snodgrass v. Bradley, 2 Grant Cas. 43; Campbell v. Stairt, 2 Murph. 389; Deihl v. Ottenville, 14 Lea, 191; McCann v. Tielinghast, 140 Mass. 327; Farber v. Mo. Pac. R. Co., 32 Mo. App. 378; Murphy v. Central Park R. Co., 48 N. Y. Superior Ct. 96; Baylis v. Schwalbach Cycle Co., 14 N. Y. S. Rep. 933; Central R. Co. v. Peacock, 69 Md. 257; 14 At. Rep. 709; Mott v. Consumer's Ice Co., 73 N. Y. 547; Wallace v. Finberg, 46 Texas, 35; Lindsay v. Griffin, 22 Ala. 629.

It is a rule that disobedience by the servant of the master's general orders does not excuse the master from liability for resulting damages. Schmidt v. Adams, 18 Mo. App. 432; Powell v. Deveney, 3 Cush. 300; Philadelphia, etc., R. R. Co. v. Derby, 14 How. 468; Atchison, etc., R. Co. v. Randall, 14 Kan. 421; Duggins v. Watson, 15 Ark. 118; Toledo, etc. Ry. Co. v. Harman, 47 Ill. 298; Southwick v. Estes, 7 Cush. 385; Garretzen v. Duenckel, 50 Mo. 104; 11 Am. Rep. 405; Robinson v. Webb, 11 Bush, 482; French v. Creswell, 13 Oreg. 418; 11 Pac. Rep. 62; Keedy v. Howe, 72 Ill. 136.

But there are cases holding the contrary, where the master's orders are specific. Haack v. Fearing, 5 Robt. 528; Oxford v. Peter, 28 Ill. 434; Deihl v. Ottenville, 14 Lea, 191; Wood v. Detroit St. Ry., 52 Mich. 402; Attawey v. Cartersville, 68 Ga. 740; Wright v. Wilcox, 19 Wend. 343; Andrews v. Green, 62 N. H. 436.

less than in other cases, although the servant's conduct is of a kind actually forbidden by the master. Sometimes it has been said that a master is not liable for the "wilful and malicious" wrong of his servant. If "malicious " means "committed exclusively for the servant's private ends," or "malice" means "private spite" (1), this is a correct statement; otherwise it is contrary to modern authority. The question is not what was the nature of the act in itself, but whether the servant intended to act in the master's interest.

This was decided by the Exchequer Chamber in Limpus v. London General Omnibus Company (m), where the defendant company's driver had obstructed the plaintiff's omnibus by pulling across the road in front of it, and caused it to upset. He had printed instructions not to race with or obstruct other omnibuses. Martin B. directed the jury, in effect, that if the driver acted in the way of his employment and in the supposed interest of his employers as against a rival in their business, the employers were answerable for his conduct, but they were not answerable if he acted only for some purpose of his own: and this was approved by the Court (n) above. The driver" was employed not only to drive the omnibus, but also to get as much money as he could for his master, and to do it in rivalry with other omnibuses on the road. The act of driving as he did is not inconsistent with his employment, when explained by his desire to get before the other omnibus.” As to the company's instructions, "the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability" (o).

(1) See per Blackburn J., 1 H. & C. 543.

(m) 1 H. & C. 526, 32 L. J. Ex. 34 (1862). This and Seymour v. Greenwood (above) overrule anything to the contrary in M' Manus v. Crickett, 1 East, 106.

(n) Williams, Crompton, Willes, Byles, Blackburn JJ., diss. Wightman, J.

(0) Willes J. 1 H. & C. at p. 539.

Fraud of Agent or Servant. That an employer is liable for frauds of his servant committed without authority, but in the course of the service and for the employer's purposes, was established with more difficulty; for it seemed harsh to impute deceit to a man personally innocent of it, or (as in the decisive cases) to a corporation, which, not being a natural person, is incapable of personal wrongdoing (p). But when it was fully realized that in all these cases the master's liability is imposed by the policy of the law without regard to personal default on his part, so that his express command or privity need not be shown, it was a necessary consequence that fraud should be on the same footing as any other wrong (q). So the matter is handled in our leading authority, the judgment of the Exchequer Chamber delivered by Willes J., in Barwick v. English Joint Stock Bank.

"With respect to the question, whether a principal is answerable for the act of his agent in the course of his

(p) This particular difficulty is fallacious. It is in truth neither more nor less easy to think of a corporation as deceiving (or being deceived) than as having a consenting mind. In no case can a corporation be invested with either rights or duties except through

natural persons who are its agents. Cp. British Mutual Banking Co. v. Charnwood Forest R. Co. (1887), 18 Q. B. Div. 714, 56 L. J. Q. B. 449.

(q) It makes no difference if the fraud includes a forgery: Shaw v. Port Philip Gold Mining Co. (1884), 13 Q. B. D. 103.

Fraud of agent or servant. Supporting the statement in the text vide, Moir v. Hopkins, 16 Ill. 315; Frankfort Bank v. Johnson, 24 Me. 491; Calvin v. Holbrook, 2 N. Y. 126; McKay v. Irwine, 11 Biss. 168; McDongald v. Bellamy, 18 Ga. 411; Adams v. Cole, 1 Daly, 147; Leavitt v. Sizer, 35 Neb. 80; 52 N. W. Rep. 832; Locke v. Stearns, 1 Metc. 560; Johnson v. Barber, 10 Ill. 425; Armstrong v. Cooley, Id. 509; Sanford v. Handy, 23 Wend. 259; Lynch v. Mercantile Trust Co., 18 Fed. Rep. 486; Reynolds v. Witte, 13 S. C. 5; 36 Am. Rep. 678; Mundorff v. Wickersham, 63 Pa. St. 87; Upton v. Tribilcock, 91 U. S. 45; Taggs v. Tenn. Nat. Bank, 9 Heisk, 479; Crans v. Hunter, 28 N. Y. 389; Brokaw v. N. J. R. Co., 32 N. J. L. 328; Rhoda v. Annis, 75 Me. 17; 46 Am. Rep. 354; Concord Bank v. Gregg, 14 N. H. 331; Eilenberger v. Prot. Mut. F. Ins. Co., 89 Pa. St. 464; Wilson v. Peverly, 2 N. H. 584; Galena R. Co. v. Rae, 18 Ill. 488; 68 Am. Dec. 574; Vance v. Erie R. Co., 32 N. J. L. 334.

master's business, and for his master's benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong" (r).

This has been more than once fully approved in the Privy Council (s), and may now be taken, notwithstanding certain appearances of conflict (t), to have the approval of the House of Lords also (u). What has been said to the contrary was either extra-judicial, as going beyond the ratio decidendi of the House, or is to be accepted as limited to the particular case where a member of an incorporated company, not having ceased to be a member, seeks to charge the company with the fraud of its directors or other agents in inducing him to join it (x).

But conversely a false and fraudulent statement of a servant made for ends of his own, though in answer to a question of a kind he was authorized to answer on his master's behalf, will not render the master liable in an action for deceit (y).

The leading case of Mersey Docks Trustees v. Gibbs (z) may also be referred to in this connexion, as illustrating the general principles according to which liabilities are imposed on corporations and public bodies.

(r) (1867) L. R. 2 Ex. at p. 265.

(8) Mackay v. Commercial Bank of New Brunswick (1874),L. R. 5 P. C. 412, 43 L. J. P. C. 31; Swire v. Francis (1877), 3 App. Ca. 106, 47 L. J. P. C. 18.

(t) Addie v. Western Bank of Scotland (1867), L. R. 1 Sc. & D. 145, dicta at pp. 158, 166, 167.

(u) Houldsworth v. City of Glasgow Bank (1880), 5 App. Ca. 317.

(x) Ib., Lord Selborne at p. 326, Lord Hatherley at p. 331; Lord Blackburn's language at p. 339 is more cautions, perhaps for the very reason that he was a party to the decision of Barwick v. English Joint Stock Bank. Shortly, the shareholder is in this dilemma: while he is a member of the company, he is damnified by the alleged

deceit, if at all, solely in that he is liable as a shareholder to contribute to the company's debts: this liability being of the essence of a shareholder's position, claiming compensation from the company for it involves him in a new liabil ity to contribute to that compensation itself, which is an absurd circuity. But if his liability as a shareholder has ceased, he is no longer damnified. Therefore restitution only (by rescission of his contract), not compensation, is the shareholder's remedy as against the company: though the fraudulent agent remains personally liable.

(y) British Mutual Banking Co. v. Charwood Forest R. Co. (1887), 18 Q. B. Div. 714, 56 L. J. Q. B. 449.

(z) L. R. 1 H. L. 93 (1864-6).

Liability of firm for fraud of a partner. There is abundant authority in partnership law to show that a firm is answerable for fraudulent misappropriation of funds, and the like, committed by one of the partners in the course of the firm's business and within the scope of his usual authority, though no benefit be derived therefrom by the other partners. But, agreeably to the principles above stated, the firm is not liable if the transaction undertaken by the defaulting partner is outside the course of partnership business. Where, for example, one of a firm of solicitors receives money to be placed in a specified investment, the firm must answer for his application of it, but not, as a rule, if he receives it with general instructions to invest it for the client at his own discretion (a). Again, the firm is not liable if the facts show that exclusive credit was given to the actual wrongdoer (b). In all these cases

(a) Partnership Act, 1890, ss. 10-12. Cp. Blair v. Bromley, 2 Ph. 354, and Cleather v. Twisden (1883), 24 Ch. D. 731, with Harman v. Johnson, 2 E. & B. 61, 22 L. J. Q. B. 297.

(b) Ex parte Eyre, 1 Ph. 227. See more illustrations in my "Digest of the Law of Partnership," 5th ed. pp. 43 46.

Liability of firm for fraud of a partner. The rule as to liability of a firm for the torts of a partner, as stated and limited in the text, holds true in America. The firm's liability has been said to be based upon the principle, that as every member is responsible for the tortious acts committed by an agent of the firm in matters connected with the business so when a partner acts in the same capacity he, in like manner, binds the firm. Hall v. Younts, 87 N. C. 285. See Lockwood v. Bartlett, 130 N. Y. 340; 7 N. Y.S. Rep. 481; 29 N. E. Rep. 257; Rocky Mountain Nat. Bank v. McCaskill, 15 Col. 408; 26 Pac. Rep. 821; Warner v. Winters, 38 Ill. App. 149; Stanhope v. Swafford, 80 Ia. 45; 45 N. W. Rep. 403; Baldy v. Brackenridge, 39 La. An. 660; Fletcher v. Ingram, 46 Wis. 191; Heim v. McCangham, 32 Miss. 17; 56 Am. Dec. 589; Chapman v. Bostwick, 18 Wend. 174; 31 Am. Dec. 376; Tucker v. Cole, 54 Wis. 540; Morehead v. Gilmore, 77 Pa. St. 118; 18 Am. Rep. 435; Myers v. Gilbert, 18 Ala. 467; Witcher v. Brewer, 49 Ala. 119; Doremus v. McCormick, 7 Gill. 49; Pierce v. Wood, 23 N. H. 519; Church v. Sparrow, 5 Wend. 223; Chester v. Dickinson, 52 Barb. 349; Wolf v. Mills, 56 Ill. 360. But a firm is not liable for the act of a partner outside the general course of the business. Brent v. Davis, 9 Md. 217; Selden v. Bank of Commerce, 3 Minn. 166; Newman v. Richardson, 4 Woods, 81.