DANTS. able. be negligent and careless conduct, for which the master will be liable, being H. DEFENan act done in pursuance of the servant's employment" (q). So if a servant take out his master's cart at a time when it is not wanted for the purposes of 1. Who lihis master's business, and drive it about for his own purposes, the master will not be responsible for any injury arising whilst so doing (r). Though if a servant, driving his master's cart on his master's business, make a detour from the direct road for some purpose of his own, his master will be answerable in damages for any injury occasioned by his careless driving whilst so out of his road (r). riff and his On principles of public policy a sheriff is liable civilly for the tortious act, Liability default, extortion, or other misconduct, *whether it be wilful or inadvertent, of the sheof his under-sheriff or bailiff, in the course of the execution of their du- officers. ties (s) (201). But if the wrong complained of be neither expressly sanction- [*94 ] ed by the sheriff, or impliedly committed by his authority; if it be an act not within the scope of the authority given; the sheriff is not responsible (t). And if the plaintiff in an action, or an execution creditor, induce the bailiff to depart from the ordinary course of his duty without the sheriff's knowledge, it is not competent to such plaintiff or execution creditor to fix the sheriff for the consequences (u). of animals. The distinctions with regard to the liabilities of the owners of animals are Liability important, particularly as they affect the form of the action. The owner of of owners domestic or other animals not naturally inclined to commit mischief, as dogs, horses, and oxen, is not liable for any injury committed by them to the person or personal property; unless it can be shown that he previously had notice of the animal's mischievous propensity (202), or that the injury was attributable to some other neglect on his part; it being in general necessary in an action for an injury committed by such animals to allege and prove the scienter; and though notice can be proved, yet the action must be case, and not trespass (v)(203). But if the owner himself acted illegally, he may be liable even as a trespasser; as where a person in company with his dog trespassed in a close through which there was no footpath, and the dog, without his concurrence, killed the plaintiff's deer (x): and if a person let loose or permit a dangerous (4) 4 B. & Ald. 590; see 9 B. & C. 591; 4 M. & R. 500, S. C. (r) Joel v. Morison, 6 Car. & P. 501. (s) 2 T. R. 151, 712; 7 Id. 267; Dougl. 40; 11 East, 25; 8 B. & C. 602; 3 M. & R. 20, S. C. (t) 6 B. & C. 739; 9 D. & R. 723, S. C.; 8 B. & C. 598; 3 M. & R. 7, S. C.; and sce further infra, 96, 97; 9 Price, 237; 5 Moore, 183; 1 R. & M. 310, (u) 6 B. & C. 739; 9 D. & R. 723, S. C.; 8 B. & C. 598; 3 M. & R. 7, S. C. and see (201) Grinnell v. Phillips, 1 Mass. Rep. 530. Campbell . Phelps, 17 Mass. Rep. 245. Vide Hazard v. Israel, 1 Binn. 240. M'Intyre v. Trumbull, 7 Johns. Rep. 35. Blake v. Shaw, 7 Mass. Rep. 505. Parrot v. Mumford, 2 Esp. Rep. 585. White v. Johnson, 1 Wash. 159. Moore's Adm'rs v. Downey and another, 3 Hen. and Mun. 127. Gorham v. Gale, 7 Cowen, 739, (202) Vide Vrooman v. Lawyer, 13 Johns. Rep. 339. (203) What is sufficient notice to the owner of a dog accustomed to bite. See Smith . Pelab, Str. 1264. Peck v. Dyson, 4 Campb. 198. DANTS. able. 11. DEFEN- animal to go at large, and mischief ensue, he is liable as a trespasser; the law in such cases presuming notice to the defendant of the mischievous pro1. Who li- pensity of such animal (y). With respect to animals mansuetæ naturæ, as cows and sheep, as their propensity to rove is notorious, the owner is bound [ *95] at all events to confine them on his own *land; and if they escape, and commit a trespass on the land of another, unless through the defect of fences which the latter ought to repair (204), the owner is liable to an action of trespass (205), though he had notice in fact of such propensity (z). But for damage by animals, &c., feræ naturæ, escaping from the land of one person to that of another, as by rabbits, pigeons, &c. no action can in general be supported; because the instant they escaped from the land of the owner his property in them was determined (a). And a person cannot be liable for the act of cattle, unless he were the general owner, or he actually put them into the place where the injury was committed (b); nor is he liable for trespass committed by his dog (c); and if a servant or a stranger, without the concurrence of the owner, chase or put his cattle into another's land, such owner is not liable; but the action must be against the servant or stranger, who, as it has been said, gains a special property in the cattle for the time (d). Injuries to land. The liability to an action in respect of real property may be for misfeasance or malfeasance, as for obstructing ancient lights; or for nonfeasance, as for not taking care of premises, so as to prevent the consequence of a public nuisance, as for leaving open an area door, or coal plate (e); or for not repairing fences (f), private ways (g), or water-courses, &c. (h). In these cases the action should in general be against the party who did the act complained of, or against the occupier (i)(206); and not against the owner, if the premises were in the possession of his tenant, unless he covenanted to repair (k)(207). But if the owner of land, having erected a nuisance thereon, demise the land, an action may be supported against him, though out of possession, for the continuance of it; for by the demise he affirmed such continuance (1); and (y) 3 East, 595, 596; 12 Mod. 333; Lord Raym. 1583; Bac. Ab. Action, Case, F. (z) 12 Mod. 335; Loid Raym. 606, 1583; (a) 5 Co. 104 b.; Cro. Car. 387; 1 Burr. (201) Vide Shepherd v. Hees, 12 Johns. Rep. 433. (206) Vide Compton v. Richards, 1 Price's Ex. Rep. 27. An action does not lie for earelessly leaving a maple syrup in one's unenclosed wood, whereby the plaintiff's cow being suffered to run at large, and having strayed there, is killed by drinking it. Bush v. Brainard, 1 Cowen, 78. So, where A. sets fire to his own fallow ground, as he may lawfully do, which communicates to and fires the wood land of his neighbor, no action lies against A. unless there be some negligence or misconduct in him or his servants. Clark v. Foot, 8 J. R. 421. (207) The defendant was lessor of a house which the lessee had ceased to inhabit, for the purpose of having it thoroughly repaired, which was done at the expense of the lessee, but under the superintendence of the defendant's lessor; it was held that an action on the case was properly brought against the lessor, for the negligence of his workmen, in leaving open the cellar door, whereby the plaintiff in the night fell in and hurt himself. Leslie v, Pounds, 4 Taunt. 619. DANTS. every occupier is liable for the continuance of the nuisance on his land, &c. II. DEFENthough erected by another, if he refuse to remove the same after notice (m). When there are several owners or persons chargeable as joint-tenants or 1. Who litenants in common in respect of their real property, though the action be in form ex delicto, they should all be made defendants, or the party who is sued alone may plead in abatement (n). able. [*96] nies. An agent or servant, though acting bona fide under the directions and for Liability of agents, the benefit of his employer, is personally liable to third persons for any tort or servants, trespass he may commit in the execution of the orders he has received (o). and attorIf the master has not the right or power to do the act complained of, he cannot delegate an authority to the servant, which will protect the latter from responsibility. Therefore a servant may be charged in trover, although the act of conversion be done by him for his master's benefit (p) (208). And a bailiff who distrains is liable, if the principal has no right of distress (q). And a custom-house officer may be sued for a wrongful seizure made by him in that character (r) (209). There is no injustice in this doctrine as regards the servant; for if the act were not manifestly illegal, the indemnity of the principal to the servant against the consequences is not illegal, and will, in many instances, be implied (s). And where a servant received a bill of exchange, which he promised to the deliverer that his master should discount, but which the latter refused to do, and insisted on retaining the same as a security for a previous debt from the deliverer, it was held that such deliverer might support trover against the servant (t). But in order to sue a servant in trover, an actual, not a constructive, conversion should be shown; and the servant's reasonable and qualified refusal to deliver up the goods until he had consulted his master, and obtained his sanction, does not amount to a conversion (u). And in cases in which a contract, express or implied, with the master, is the ground of action, the servant seems not to be liable for any mere neglect or nonfeazance, which, as such servant, he is guilty of in the execution of, or with relation to, the contract (x). If a coachman lose a parcel, the master, not the coachman, should be sued; and it seems that a servant is not liable for his false warranty, or deceit, on the sale of goods by his master's orders (y). An attorney acting bona fide, and professionally, may not be personally liable in cases where he does not exceed the line of his duty. Thus, it seems, that [ *9 he is not liable in case for a malicious and unfounded arrest (regular in form), which may be considered the tort of his client only (z). But if an attorney, (r) 5 Burr. 2687; 7 Price, 300; 3 Wils. 146. (u) 5 B. & A. 247; 1 Hodges, 61; 1 Bing. N. C. 414. (x) See ante, 38, 39; 12 Mod. 488; Say. 41; Bac. Ab. Action on the Case, B. (y) Id.; Rol. Abr. 95, T.; Com. Dig. Action upon the Case for Deceit, B.; 3 P. Wms. 379. (z) 1 Mod. 209, cited per cur., 3 Wils. 278, 379. It was there said the attorney was not liable, although he knew the de(t) Cranch. White, 1 Hodges' Rep. mand was unfounded. Sed quære. (s) 8 T. R. 186; Bul. N. P. 146. 61; 1 Bing. N. C. 414, S. C. (208) See, however, Berry v. Vantries, 12 Serg. & Rawle, 89, where Mires v. Solebay, 2 Mod. Rep. 242, was held to be law. } (209) Vide Hoyt v. Gilston, 13 Johns. Rep. 141. II. DEFEN- by himself or his agent, issue any illegal or irregular process or execution in a cause, he, equally with the client, is liable as a trespasser (a). DANTS. able. Sheriffs. 1. Who li- In general, an action for the breach of a duty in execution of the office of sheriff must be brought against the high sheriff (210), although the undersheriff or the bailiff of the sheriff were the party actually in default (b). The under-sheriff, or bailiff, cannot in general be sued; but there are some instances of misfeazance and malfeazance in which they may be liable to the party aggrieved; as if they voluntarily permit an escape, or are personally guilty of extortion, or any act of trespass in executing process, for in such cases the under-sheriff or officer becomes an active personal wrong-doer (c). So a sheriff is liable in trover if he seize and sell goods after an act of bankruptcy, Sheriffs. although unknown to him and before fiat (d). But an action is not sustainable against the sheriff for the act of a bailiff in taking the goods of a party under an execution of the County Court against a third person, because there the sheriff as judge of that Court acted judicially (e), and a steward of a Court Baron has the same privilege and protection (f). Intermedi It is a general rule that an action does not lie against a steward, manager, ate agents. or agent, for damage done by the negligence of those employed by him in the service of his principal, but the principal, or those actually employed, alone can be sued. This was decided in Stone v. Cartwright (g), and Lord Kenyon observed, "that the action must, in these cases, be brought against the hand committing the injury, or against the owner, for whom the act was done." The first principal is liable on the ground that the original authority flows from him, and the tort occurs in the course of the execution of work done for his benefit (h). But in these cases, if the intermediate agent personally interfere, and particularly order those acts to be done from whence the damage ensues, he is responsible (i); and it was therefore held, in an action on the case for obstructing the plaintiff's lights, that a clerk who superintended the erection of [*98] the building by which they were darkened, and who alone directed the *workmen, might be joined as a co-defendant with the original contractor, by whom he was employed (j). 2. With The liability of government and other public officers has been before adverted to (k). There are some torts which in legal consideration may be committed by reference several, and for which a joint action may be supported against all the parties. to the (d) Garland v. Carlisle, 2 Cr. & M. 31. (e) Tinsley v. Nassau, 1 Mood. & Malk, 52; and sce 1 Bar. & Cress. 256; 2 D. & R. 407, S. C.; and Holroyd v. Breare, 2 Bar. & Ald. 473. (f) Holroyde v. Breare, 2 B. & Ald. 473. (h) 1 B. & P. 404; 3 Campb. 403. (210) Vide White v. Johnson, 1 Wash. Rep. 160, 161. Armistead v. Marks, 1 Wash. Rep. 325. For an injury done by a deputy or under-sheriff to the person or property of another, the action must be the same, whether brought against the deputy or the sherif. Campbell v. Phelps, 17 Mass. R. 246. DANTS. or omitted. Thus a joint action may be brought against several for a malicious prosecu- II. defention, or an assault and battery; or for composing, publishing or singing a libel (k)(211); or for not setting out tithe (/); or for keeping a dog to kill 2. Who to be joined game, not being qualified (m). But if in legal consideration the act complained of could not have been committed by several persons, and can only be considered the tort of the actual aggressor, or the distinct tort of each, a separate action against the actual wrong-doer only, or against each, must be brought. Therefore a joint action cannot be supported against two for verbal slander (n) (212); nor will debt on a penal statute lie against several for what in law is a separate offence in each; as against two proctors for not obtaining and entering their certificates (o)(213); or against several persons for bribery (p). In an action of debt to recover money lost at play, the defendant cannot plead a non-joinder in abatement (g). And if a joint action of trespass be brought against several persons, the plaintiff cannot declare for an assault and battery by one, and for the taking away of goods by the others, because these trespasses are of several natures (r). And in trover against several defendants, all cannot be found guilty on the same count, without proof of a joint conversion by all (s),. These rules, however, do not prevail in criminal proceedings, so as necessarily to defeat an indictment against several for distinct offences in separate counts, *though the Court have a discretionary power to quash the in- [99] dictment, where inconvenience might arise from the joinder of many persons for different offences (t). or non If several persons be made defendants jointly, where the tort could not in Consepoint of law be joint, they may demur, and if a verdict be taken against all, quences of misjoinder the judgment may be arrested or reversed on a writ of error (u); but the objection may be aided by the plaintiff's taking a verdict against only one (x); joinder. or if several damages be assessed against each, by entering a nolle prosequi as to one after the verdict and before judgment (y). In other cases (214), where in point of fact and of law several persons might have been jointly guilty of the same offence, the joinder of more persons than were liable in a personal or mixed action in form ex delicto, constitutes no objection to a par (k) 2 Saund. 117 a; Latch. 262; 2 Burr. 985; Bac. Ab. Actions in General, C. (1) Carth. 361; 2 Vin. Ab. 70, pl. 21. (m) 2 East, 573. (n) Id. ibid.; 2 Wils. 227; Dyer, 19 a; Palm. 313; Cro. Jac. 647; 1 Bulst. 15; 1 Rol. Ab. 781; 2 Vin. Ab. 64, pl. 27. (0) 1 New Rep. 245; 2 East, 574. (p) Griffiths v. Stratton and others, judgment in error in the House of Lords from the Exchequer in Ireland, 17th April, a. D. 1806. (211) Vide Thomas v. Rumsey, 6 Jolns. Rep. 26. (212) Vide Thomas v. Rumsey, 6 Johns. Rep. 32. {17 Mass, Rep. 186. } (213) If debt qui tam be sued against several, demanding a joint forfeiture, on a plea of nil debet, all the defendants ought to be found indebted, because the form of the action and plea is on a joint contract, although the debt arises from a tort. Burnham v. Webster, 5 Mass. Rep. 270, (214) An action of ejectment was brought against five defendants, who entered into the consent rule jointly, and pleaded jointly. They severally possessed the premises in separate parts; and the jury having found each defendant separately guilty as to the part in his possession, and not guilty as to the residue, judgment was rendered accordingly. Jackson d. Haines and others v. Woods and others, 5 Johns. Rep. 278. |