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 money (d), 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; 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). If a person (e) keeping livery stables, and having a horse to sell, direct his servant not to warrant him, and the servant does nevertheless warrant him, still the master is liable on the warranty, because the servant was acting within the general scope of his authority, and the public cannot be supposed to be cognizant of any private conversation between the master and servant: but if the owner of a horse were to send a stranger to a fair, with express directions not to warrant the horse, and the latter acted contrary to the orders, the purchaser could only have recourse to the person who actually sold the horse, and the owner would not be liable on the warranty, because the servant was not acting within the scope of his employment. A horsedealer's servant (f), sent to deliver a horse to a purchaser, was held not to have rendered his master liable by warranting the horse on delivery; for a warranty by a person entrusted merely to deliver is not primâ facie binding on the principal, but an express authority must be shown. A journeyman to a baker was holden a good witness to prove the delivery of bread to the defendant (g), 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 a release (h). (d) Stubbing v. Heintz, Peake's N. P. C. 47. (e) Per Ashhurst, J., in Fenn v. Harrison, 3 T. R. 760. (f) Woodin v. Burford, 2 Cr. & M. 391, per Bayley, B. See ante, p. 649. (h) Matthews v. Haydon, 2 Esp. N. P. C. 509. (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. III. Of the Liability of the Master in respect of a tortious 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 (i), and maimed him by negligence, an action was brought against the master, and the plaintiff recovered. So where the servant of A. (k), 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 (1). In these cases, if the declaration state that the defendant (the master) negligently drove his cart (m), &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 the plaintiff without a release (n). Plaintiffs employed B., a broker, to sell goods for them, and to deliver such goods in the port of London, according to the contracts of sale. C., a lighterman, acted in the delivery of the goods, under B.'s direction, and was employed by the plaintiffs so to do, and was paid by them. Plaintiffs, through B., contracted with a purchaser for the sale to him of a parcel of goods, to be paid for on delivery. The goods were delivered without payment; and the price was in consequence lost. In an action by plaintiffs against B. for the breach of duty, they called C. to prove that, while he was waiting for B.'s orders as to the delivery, a person, whom C. supposed to have proper authority, but who really had not, desired C. to carry them alongside a certain vessel, which he did without orders from B., and the goods were taken away, as on behalf of the purchaser; that C. informed B. of what had happened, and, upon hearing B. had given no orders, said it was not too late to stop the goods, and he would do so; but that B. prevented him, and did not, himself, take proper measures to stop them. It was holden (0), that C. was incompetent by reason of his liability to the plaintiffs as their servant. It would seem to be the better opinion, that in an action for a similar injury, the defendant's servant may (p) be a witness for him without a release, the objec (i) 1 Raym. 739, ex. rel. M'ri Place. (k) Id. (1) Morley v. Gaisford, 2 H. Bl. 443. (m) Brucker v. Fromont, 6 T. R. 659. (n) Morish v. Foote, Taunt. 454; Sherman v. Barnes, 1 M. & Rob. 69, S. P. These cases were before stat. 3 & 4 Will. IV. c. 42, s. 26, 27; Harding v. Cobley, 6 C. & P. 664, S. P., per Denman, C. J., since the statute. (0) Boorman v. Brown, 9 A. & E. 487. (P) Pickles v. Hollings, 1 M. & Rob. 468, Parke, B.; Creevy v. Bowman, 1 M. & Rob. 496; Faith v. M'Intyre, 7 C. & P. 44, by the same learned judge. And see Phillips on Evidence, p. 110, 8th edit. tion to the witness being removed under the stat. 3 & 4 Will. IV. 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 (q), 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 (r) the servant only is liable. As if a servant (s), authorized merely to distrain cattle damage feasant, drives a horse from the highway into his master's close, and there distrains it. So where a servant of the defendant wilfully drove the defendant's chariot against the plaintiff's chaise (t); 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 (u), being an act 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 holden (x), 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 time (y). If a master command his servant to do an illegal act (z), 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 (a), for breaking a pair of horses in Lincoln's Inn Fields, (q) Mitchell v. Tarbutt and others, 5 T. R. 649. See 2 Bos. & Pul. N. R. 365. (r) See judgment of Patteson, J., in Lyons v. Martin, 8 A. & E. 512. (s) Lyons v. Martin, 8 A. & E. 512. (t) M'Manus v. Crickett, 1 East, 106. (u) Per Cur., Croft v. Alison, 4 B. & A. 592. (x) Joel v. Morison, 6 C. & P. 501, Parke, B. (y) Bowcher v. Noidstrom, 1 Taunt. 568. See Nicholson v. Mounsey, infra, p. 1101. (z) Sands v. Child, 3 Lev. 352. (a) Michael v. Alestree and another, 2 Lev. 172. See ante, p. 434. 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 (b) 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 sub-contracts 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 show 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 superintendence and control which he is supposed to 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, s. 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 (b) Bush v. Steinman, 1 Bos. & Pul. 404. See Matthews v. West Mid. Waterworks Company, 3 Campb. 403, and Harris v. Baker, 4 M. & S. 27, cited by VOL. II. Denman, C. J., in Parnaby v. Lancaster Canal Company, 3 Nev. & P. 530; 11 A. & E. 223. 2 E 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 stablekeeper 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 this 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 divided (c): Abbott, Č. J., and Littledale, J., holding, that the defendant was not liable; Bayley, J., and Holroyd, J., contra. The opinion of the two former judges was adhered to in the following case. The owners of a carriage were in the habit of hiring horses from the same person, to draw it for a day or drive, and the owner of the horses provided a driver, through whose negligence an injury was done to a third party: it was holden (d), that the owners of the carriage were not liable to be sued for such injury; and that it made no difference, that the owners of the carriage had always been driven by the same driver, he being the only regular coachman in the employ of the owner of the horses; or that they had always paid him a fixed sum for each drive; or that they had provided him with a livery, which he left at their house at the end of each drive, and that the injury in question was occasioned by his leaving the horses while so depositing the livery in their house. The owner of a carriage hired four post horses and two postilions of A., a livery stable-keeper, for the day, to take him from London to Epsom and back. In returning, the postilions damaged the carriage of B. It was holden (e), that A., as owner of the horses and master of the postilions was liable to B., for such damage. A warehouseman at Liverpool employed a master porter to remove a barrel from his warehouse. The master porter employed his own men and tackle; and through the negligence of the men the tackle failed, the barrel fell and injured the plaintiff; it was holden (ƒ), that the warehouseman was liable in case for the injury. But where a butcher employed a licensed drover to drive |