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

The servant may be examined by the defendant (the master) as a witness, having been released by his master, but not otherwise; because the verdict in this action may be given in evidence by the master, in an action brought by him against the servant, as to the quantum of damages.

In like manner, the servant of the plaintiff may be examined by the plaintiff, having first been released by the plaintiff.

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

n 1 Ld. Raym. 739. ex rel. M'ri Place. Green v. the New River Com. 4 T. p ld.

R. 589.

Miller v. Falconer, 1 Camp. N. P. C.

251.

Mitchell v. Tarbutt and others, 5 T. R. 649. See 2 Bos. & Pul. N. R. 365.

case the servant only is liable. As, where a servant of the defendant wilfully drove the defendant's chariot against the plaintiff's chaise*; 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.

So 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.

If a master command his servant to do an illegal act, 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 hoiden, 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 bene

x M'Manus v. Crickett, 1 East, 106.
y Bowcher v. Noidstrom, 1Taunt. 568.
See Nicholson v. Mounsey, infr. p.
1037.

z Sands v. Child, 3 Lev. 352.
a Michael v. Alestree and another, 2
Lev. 172. See ante, p. 421.

b Bush v. Steinman, 1 Bos. & Pul. 404. See Matthews v. West Mid. Water Works Company, 3 Camp. N, P. C. 403. and Harris v. Baker, 4 M. & S. 27.

fit 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 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. § 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 captain of a king's ship of war was holden not to be responsible for the damage done to another vessel, through the negligence of his lieutenant, who was upon deck, and had the actual direction and management of the steering and navigating of the ship at the time, and when the captain was not upon deck, nor was called upon by his duty to be there,

e Nicholson v. Mounsey, 15 East, 384.

IV. Of Actions brought by Masters for enticing away Apprentices and Servants, and for Injuries done

to their Servants; and herein of the Action for Seduction-Witness-Damages.

AN action on the case may be maintained by a master against any person who entices away his apprentice or servant from his service, or who continues to employ such servant after notice, though the defendant did not procure the servant to leave his master, or know when he employed him, that he was the servant of another. But the master may, if he chooses, wave his action for the tort; and bring an action of indebitatus assumpsit for work and labour done by his apprentice, against the person who tortiously employed him. So the captain of a ship of war detaining an apprentice who had been impressed, after verbal notice by such apprentice of his condition, is liable in an action by the master for wages for the service of the apprentice".

It is not material whether the apprentice be legally apprentice or not; it is sufficient if he be so de facto".

It has been holden', that a master cannot maintain an action for seducing his servant, after the servant has paid him the penalty stipulated by his articles for leaving him. Neither can an action be maintained for harbouring an apprentice as such, if the master to whom he was bound was then not an housekeeper, and of the age of twenty-four years*.

A master may maintain an action for an injury done to his servant, as false imprisonment, battery, &c. which deprives the master of his service. The form of action is an action of trespass, usually termed an action per quod servitium amisit, the gist of the action being the loss of service; and hence the servant may be a witness', for he is not interested as to this point.

Of the Action for Seduction.

This form of action is frequently adopted by a parent for the purpose of obtaining a compensation in damages for debauching his daughter (5), and getting her with child, and the expenses attending the lying-in (6). As to the nature of the action, it has been solemnly decided", contrary to the opinion expressed by Buller, J., ante n. (5), that this is an action of trespass, and not trespass on the case; and consequently that a count for breaking and entering the plaintiff's dwelling-house, and debauching his daughter, whereby he lost her service, may be joined with a count omitting the trespass to the dwelling-house, and merely stating that the defendant, with force and arms, debauched the plaintiff's daughter, per quod servitium amisit. It has been holden, that this action may be maintained, although the daughter was of age at the time of the seduction". But as the action is founded on the loss of service, that must be alleged in the declaration" (7); and it must be proved that the relation of master and servant (which in these cases the law implies from very slight circumstances) subsisted at the time when the injury was committed, and the circumstance of the daughter having been under age at that time, will not dispense with the necessity

m Woodward v. Walton, 2 N. R. 476.
recognized in Ditcham v. Boud,
2 Maule and Selwyn, 436.
n Bennet v. Allcott, 2 T. R. 166.
o Saterthwaite v. Dewhurst, B. R. E.

25 G. 3. cited in 5 East, 47. n. and MSS.

p Postlethwaite v. Parkes, 3 Burr. 1878. recognized by Buller, J. iu 2 T. R. 166.

(5) If the injury of seduction is accompanied with an illegal entry of the house of the parent, he has his election either to bring trespass for the breaking and entering, and lay the debauching of the daughter, and loss of her service, as consequential damages, or he may bring an action on the case for debauching his daughter, per quod servitium amisit *.

(6) A master, not standing in the relation of a parent, may maintain this action for debauching his servant. Fores v. Wilson, Peake's N. P. C. 55. In like manner it may be maintained, for the seduction of an adopted child. Irwin v. Dearman, 11 East, 23.

66

(7) Although the daughter cannot have an action, yet the father may, not for assaulting his daughter, and getting her with child, because this is a wrong particularly done to her, yet for the loss of her service caused by this." Per Roll. C. J. Norton v. Jason, Sty. 398.

* Per Buller, J. 2 T. R. 167, 168. and Holt, C. J. Lord Raym. 1032.