place; and that the law will so far raise an implied Parish by his con Cooper v. Since the case of Wennall v. Adney, it has never, it is Master may believed, been seriously contended, that any legal lia- render him. bility exists, on the part of the master, to supply medical self liable assistance for his servants; but in the few cases which duct. have happened at nisi prius, it has usually been contended on the part of the plaintiff, that the master has, by his conduct, rendered himself liable-either by calling in his own usual medical attendant, or by recognising the employment of the medical man called in by the servant. Therefore (p), in an action for the amount of a surgeon's bill, which contained a charge of 7s. 6d. for Phillips. attending a servant of the defendant, named Read, who had hurt her ancle in getting over a gate; and also a charge of 127. for attending one Parry, who had acted as wet nurse to two of the defendant's children: the defendant was held not liable to pay the former charge, as the plaintiff was not the regular medical attendant of the family, and had been employed by Read without the knowledge of her master or mistress. But the latter charge the defendant was held liable to pay; as it appeared that Parry's illness arose from suckling the defendant's youngest child, and his wife knew of the plaintiff's attendance, but did not express any disapNorman, 4 C. & P. 80. (p) Cooper v. Phillips, 4 C. & P. 581; and see Sellen v. Qu. Whe who has to supply necessary to supply probation of it, although it also appeared that the defendant did not know the plaintiff, and had sent the surgeon who regularly attended his family to see Parry, and had also sent her ten shillings to pay for medicines. Mr. Justice Taunton considering, that his doing so shewed that he considered himself liable to take care of her in that illness, and that it must be taken that the wife had the general superintendence of the house. It is believed, however, that no case has yet occurred ther master in which the question has arisen in an action by a servant contracted against his master, who had agreed to supply the servant with necessary food, whether the master, in such case, is food is liable bound by his contract to furnish physic to the servant in case of illness. But when the question shall arise the medicine in decision of it must depend upon the exact nature of the contract entered into. Sometimes a master engages to supply his servant with necessary victuals; and it may be argued that necessary victuals mean such victuals as may suit the state of health or infirmity in which the servant happens to be,-as if a servant be in need of wine, or victuals of that description, which are given by way of medicine (q). case of ill. ness. Parish liable. In the event of illness or accident, however, happening to a pauper, the parish in which it takes place is bound to provide the necessary medical advice and assistance (r). And an overseer neglecting to provide medical assistance, when required, to a pauper labouring under dangerous illness, is indictable, although such pauper is not in the parish workhouse, nor had previously to his illness received or stood in need of parish relief (s). (q) See per Lord Alvanley, in Wennall v. Adney, 3 B. & P. 247. (r) Wennall v. Adney, 3 B. & P. 247; Simmons v. Wilmot, 3 Esp. 91; and see Watling v. Walters, 1 C. & P. 132, as to deputy overseer's liability. And the parish cannot recover the expenses from the master; Newby v. Wiltshire, 2 Esp. 739; S. C. 4 Doug. 281; nor from the parish where the pauper was settled; Atkins v. Banwell, 2 East, 505; Gent v. Tompkins, 5 B. & C. 746, note; nor may a pauper, who has met with an accident, be removed to the place of his settlement during his illness; Rex v. Bury St. Edmonds, 10 East, 25; Rex v. Ludlow, 4 B. & Ald. 660; Tomlinson v. Bentall, 5 B. & C. 738; Paynter v. Williams, 1 C. & M. 810. But where a servant having met with an accident was carried to the nearest house, which was in the next parish, that parish was held liable; Lamb v. Bunce, 4 M. & S. 275. (8) Rex v. Warren, Russ. & R. Ch. Cas. 48, note. OF THE MASTER'S DUTY TO INDEMNIFY THE SER- It is also the duty of a master to indemnify his servant When from the consequences of his doing, in obedience to his master is master's orders, any act pursuant to orders which he liable to indemnify was bound to obey, or any other act which was either servant lawful in itself, or which, not being in itself unlawful, from cousemight have been either lawful or unlawful, but which obeying his the servant was induced by the conduct of his master to commands. believe to be lawful,—as the rule that one wrongdoer cannot sue another for contribution (t) would not apply in such cases (u). But it is conceived that a master is quences of not bound to indemnify his servant from the consequences When not. of an act which is malum in se, or which the servant knew to be unlawful, although done by him in obedience to his master's orders, as the servant was not bound to obey his master's orders in such a case; and the master is only bound to indemnify an innocent agent. And a Not if sermaster is not bound to indemnify his servant from vant act damage arising in consequence of his acting contrary to contrary to master's his master's orders, -as if a servant entrusted to sell orders. and expressly ordered not to warrant, does warrant, and suffers damage in consequence (v). (t) Merryweather v. Nixon, 8 T. R. 186. (u) Southern v. How, Bridgman's Rep. 126; S. C. Cro. Jac. 468; Adamson v. Jarvis, 4 Bing. 66; Betts v. Gibbins, 2 A. & E. 57; Toplis v. Grane, 5 Bing. N. C. 650; Collins v. Evans, 5 Q. B. 830; Rawlings v. Bell, 1 C. B. 951; Smith's Merc. Law, 115; Story on Ag. sect. 339; and see also the following cases, in which the question has been, whether an action for money (v) Sce per Houghton J., 122 CHAPTER V. THE LIABILITY OF A MASTER TO THIRD PERSONS Servant can only bind his master, as his agent. Incapacity of servant to contract on his own behalf, no objection to master's liability. IN CASES OF CONTRACT. THE power which a servant possesses of binding his master by contracts entered into in his name is founded upon, or, rather, is the basis of, the general law of principal and agent. It is only upon the ground that a servant is the agent of his master, that a master can, in any case, be made liable upon contracts entered into by his servant; and the principle on which the liability of the master upon such contracts depends is, that the act of the servant is, in fact, the act of the master,—the maxim being, qui facit per alium facit per se (a). And, since many persons, such as infants and married women, who are incapacitated in general to do acts on their own behalf which will be absolutely binding upon them, may nevertheless, as agents for others, do acts which will be binding upon the persons for whom they act (b), it would be no objection to the liability of a master on the contract of his servant that the servant was an infant or a married woman (c) at the time the contract was entered into, provided the contract was in other respects binding upon the master. of servant's But in order that a contract made by a servant may If contract be binding on his master, it must be within the scope of within scope the authority entrusted to the servant, since no agent can authority. bind his principal beyond the scope of his authority. servant's It therefore becomes necessary to inquire what is the What is scope of authority entrusted to a servant with regard to scope of binding his master upon contracts. The answer to this authority. question involves the consideration of several others; for the authority of a servant to contract in his master's name may be given either expressly, by deed, writing, or word of mouth, or by implication, from the conduct of the master (d). And in either of those cases it may be general (i. e., not unqualified, but to act in all cases of a particular nature), or it may be special, i. e., to act in one particular instance (e). Again, in any of the before mentioned cases the authority given may be either limited by precise instructions, or unlimited (ƒ). by deed or When authority to contract in his master's name is Express given to a servant by deed or writing, but little difficulty authority, is likely to arise in ascertaining the extent of his autho- writing. rity, except, perhaps, from some ambiguity in the expressions used in the instrument conferring it (g). In such cases it is the duty of the Court to explain them, and they will be construed strictly (h). Letters con- Letters of taining private instructions as to the mode in which the instruction. authority given is to be exercised (as distinguished from the instrument conferring the authority), being documents of a less formal kind, will receive in general a more liberal construction. But where a servant, intending to act in conformity with his instructions, has (c) As to the effect of a contract made by a married woman as agent, after the termination of her authority to act as agent, see Smout v. Ilbury, 10 M. & W. 1. (d) F. N. B. 120, G. (e) Whitehead v. Tucket, 15 East, 408; Paley on Ag. 199. (f) Ibid; Paley on Ag. 2. (g) Smith's Merc. Law, 4th ed. 116; and see Attwood (h) Howard v. Baillie, 2 H. |