6

lie against a corporation (b), we may consider for the present purpose the defendants as one natural person, and the carriage under the care of his servants. Now the law is well established on the one hand, that whenever the injury done to the plaintiff results from the immediate force of the defendant himself, whether intentionally or not, the plaintiff may bring an action of trespass; on the other, that if the act be that of the servant, and be negligent not wilful, case is the only remedy against the master. The maxim, Qui facit per alium, facit per se' renders the master liable for all the negligent acts of the servant in the course of his employment; but that liability does not make the direct act of the servant the direct act of the master. Trespass will not lie against him; case will, in effect for employing a careless servant; but not trespass, unless as was said by the Court in Morley v. Gaisford (e), the act was done by his command; that is, unless either the particular act which constitutes the trespass is ordered to be done by the principal, or some act which comprises it; or some act which leads by a physical necessity to the act complained of. The former is the case, when one, as servant, is ordered to enter a close to try a right, or otherwise; the latter, where such a case occurs as Gregory v. Piper (d), where the rubbish ordered to be removed from a natural necessity fell on the plaintiff's soil; but when the act is that of the servant in performing his duty to his master, the rule of law we consider to be that case is the only remedy against the master, and then only is maintainable when that act is negligent or improper; and this rule applies to all cases where the carriage or cattle of a master is placed in the care and under the management of a servant a rational agent. The agent's direct act is not the direct act of the master. Each blow of the whip, whether skilful and careful or not, is not the blow of the master; it is the voluntary act of the servant; nor can it we think be reasonably said that all the acts done in the skilful and careful conduct of the carriage are those of the master, for which he is responsible in an action of trespass, to the same extent as if he had given them himself, because he has impliedly ordered them; but those that were careless and unskilful were not, for he has given no order, except to use skill and care.

"Our opinion is, that in all cases where a master gives the direction and control over a carriage, or animal, or chattel, to another rational agent, the master is only responsible in an action on the case for want of skill or care of the agent-no more; consequently this action cannot be supported.

"We should observe, that though the master in this case is taken to have ordered the driver of the engine to proceed at a great speed, it did not follow as a necessary consequence that it would impinge on the plaintiff's cattle. It might not have happened if the driver had seen the cattle sooner, or the cattle had heard the engine and got out of the way. The act, there

(b) See Maund v. The Monmouthshire Canal Company, 4 M. & G. 452.

(c) 2 H. Bl. 442.

(d) 9 B. & C. 591, ante, p. 208.

fore, cannot be treated as a trespass on the ground that it was by necessary implication ordered to be done by the defendantsthe principle on which the case of Gregory v. Piper was decided. This is the simple case of an act done by the servant in the course of his employment, not specifically ordered by the master; and though the injury by such an act be direct so far as relates to the servant, we have recently held that a master would not be responsible in trespass" (e).

Railway

one not his servant.

M'Laughlin

v. Prior.

So it has been held (f) that a railway company was not Roe v. Birliable to an action of trespass for an arrest of the plaintiff by kenhead, &c. one of the officers of the company (for nonpayment of an Company. excess of fare claimed, but not due), as there was no proof of any authority, either express or implied, given by the defendants, or of any ratification by them of the act done. The same principles which render a man liable to be sued in So, a man an action of trespass for the wrongful act of his servant will may be liable in trespass also render him liable to be sued in that form of action for the for the act of wrongful act of one who is not, strictly speaking, his servant. Thus, where (g) the defendant, who, together with a party of friends, had hired a carriage and four horses, driven by two postilions in the service of the owner of the horses, to go to Epsom, rode on the box of the carriage, and in going through a toll-bar, at which there was a crowd, called out to the postilion on the leader" go in there," pointing to a position in front of a gig in which the plaintiff was riding, which belonged to and was driven by M., and the postilion pushed his horses forward, and, in doing so, upset the gig and the plaintiff, and M. fell out. Some one in the carriage cried out "go on, go on," but M. got up, stopped the horses and would not allow the carriage to proceed, although the defendant offered to settle then, until the defendant gave his card, saying, that he would be answerable for all that had occurred it M. would allow him to proceed. The defendant was held liable in trespass for the injury sustained by the plaintiff; although, according to the decision before adverted to in the case of Quarman v. Burnett (h), the_postilions could not be considered as his servants: Erskine, J., saying, "The cases in which it has been decided that case will not lie against the hirer of a carriage and horses for the misconduct of the driver, not being his servant, do not apply here; for this is an action treating the defendant as a co-trespasser, and is not brought against him as a master for the misconduct of his servant."

officers not

An exception, however, to the general rule, which renders a Superior man responsible in a civil action for the tortious acts of those public employed by or under him, is to be found in the case of public liable for acts officers, such as the postmaster-general, the lords commissioners of inferior

(e) Gordon v. Rolt, 4 Exc. 365; S. C. 7 D. & L. 87, ante, p. 211.

(f) Roe v. The Birkenhead, Lancashire and Cheshire Junction Railway Company, 21 L. J., Exc. 9; S. C. 7 Exc. 36. In this case a letter, written by the solicitor

to the company, with a view to a
compromise, was held not to be
evidence of ratification by the
company of the act done.

(g) M Laughlin v. Prior, 4 M.
& G. 48.

(h) Ante, p. 199.

officers.

Lane v. Cotton.

Whitfield v.
Lord Le
Despencer.

Nicholson v.
Mouncey.

of the treasury, the commissioners of customs and excise, the auditors of the exchequer, &c., who are not liable for any negligence or misconduct of the inferior officers in their several departments (h). The principle upon which their non-liability depends was settled in the year 1699, in an action brought against the postmaster-general, for the loss of a letter containing exchequer bills, by the negligence of his servants and deputies: and three judges, against Lord Holt, held, that the plaintiff was not entitled to recover (i). The ground of the opinion of the three judges appears to have been, that the post-office establishment is a branch of the public police created by statute for purposes of revenue as well as for public convenience, and that the Government have the management and control of the whole concern. It is, in short, a Government instrument, established for its own great purposes. The postmasters enter into no contract with individuals, and receive no hire, like common carriers, in proportion to the risk and value of the letters under their charge, but only a general compensation from Government. The same question was again still more elaborately discussed in a case in the time of Lord Mansfield (k), brought against the postmastergeneral, to recover the amount of a bank-note stolen out of a letter by one of the sorters of letters, when the court adhered to the doctrine of the three judges, in Lane v. Cotton, against the opinion of Lord Holt (1). And Lord Mansfield said, "The ground of Lord Chief Justice Holt's opinion in that case is founded upon comparing the situation of the postmaster to that of a common carrier, or the master of a ship taking goods on board for freight. Now, with all deference to so great an opinion, the comparison between a postmaster and a carrier or the master of a ship seems to me to hold in no particular whatever. The postmaster has no hire, enters into no contract, carries on no merchandize or commerce. But the post-office is a branch of revenue and a branch of police, created by Act of Parliament. As a branch of revenue there are great receipts; but there is likewise a great surplus of benefit and advantage to the public, arising from the fund. As a branch of police, it puts the whole correspondence of the kingdom (for the exceptions are very trifling) under Government, and entrusts the management and direction of it to the Crown, and officers appointed by the Crown. There is no analogy, therefore, between the case of the postmaster and a common carrier" (m). Upon similar principles, the captain of a man-of-war has been held not responsible for damage done to another vessel by his ship, during the watch of the first lieutenant, who was on deck

(h) Cowp. 766; See Story on Agency, 319. The subordinates themselves, however, may be responsible, Rowning v. Goodchild, 3 Wils. 443; S. C. 2 W. Bl. 906; Stock v. Harris, 5 Burr. 2709, post.

(i) Lane v. Cotton, 2 Lord Raym. 646; S. C. 12 Mod. 482;

see Winterbottom v. Wright, 10 M. & W. 109.

(k) Whitfield v. Lord Le Despencer, Cowp. 754. (1) Page 764.

(m) See Story on Bailm. s. 462; Story on Agency, s. 319,

note 2.

and had the direction of the ship the captain not being on deck, nor called upon by his duty to be so, as he did not appoint the officers or crew, and had no choice whether he would serve with them or not, and had no power of dismissal over them. They were, in fact, all servants of the same master (n).

own servants.

case.

But this exception would not apply so as to exempt a person, Aliter, for who was a public officer, from responsibility for the act of acts of their one who was his own servant. And, therefore, in Lord North's Lord North's case (), where it appeared that King Edw. 6 sold a quantity of lead, and appointed Lord North, who was Chancellor of his Court of Augmentations, to take bond for payment of the money, and Lord North ordered his clerk to take the bond, which was done, and the bond delivered to Lord North, who gave it back again to his clerk in order to send it to the clerk of the Court of Augmentations, but Lord North's clerk suppressed the bond it was the opinion of all the judges of England, that Lord North was chargeable to the king.

certain cases.

Another exception to the general rule above stated is to be Public comfound in that class of cases in which commissioners appointed missioners, turnpike under Acts of Parliament, for local purposes, and acting gra- trustees, &c., tuitously, such as commissioners of sewers (p), paving commis- not liable in sioners (q), navigation commissioners (r), &c., and trustees of turnpike roads (s), have been held not responsible for damage done by persons acting under their orders, in carrying into effect the purposes for which they were appointed (†). In such cases the commissioners, &c., are held not responsible for the consequences of acts which they are authorized to do (u), if

(n) Nicholson v. Mouncey, 15 East, 384.

(0) Dyer, 161; see Boson v. Sandford, 3 Mod. 323; and see Wildes v. Norris, 22 L J., M. C. 4, as to how far deputy clerk of the peace is liable for the negligence of his assistant, pursuant to 59 Geo. 3, c. 28.

(p) Jones v. Bird, 5 B. & Ald. 844; and see Clayards v. Dethick, 12 Q. B. 439.

(q) Leader v. Morton, 2 W. Bl. 924; S. C. 3 Wils. 461; Governor, &c. of Cast Plate Manufacturers v. Meredith, 4 T. R. 794; Hall v. Smith, 2 Bing. 156.

(r) Allen v. Hayward, 7 Q. B. 968, note.

(s) Sutton v. Clarke, 6 Taunt. 29; Harris v. Baker, 4 M. & S. 26; Duncan v. Findlater, 6 Cl. & Fin. 903. In R. v. Pocock, 17 Q. B. 34, it was held that trustees for repairing a road were not chargeable with manslaughter of a person who was accidentally killed in consequence of the road

being out of repair, as their neg-
lect of duty was not immediately
connected with the death.

(t) As to the proper mode of
recovering from such commis-
sioners salary due to officers ap-
pointed by them, such as street-
keeper by paving commissioners,
see Bogg v. Pearse, 10 C. B. 534;
S. C. 2 L. M. & P. 21; clerk,
Kendall v. King, 25 L. J., C. P.
132; Richardson v. Corcoran, 7
Ir. C. L. Rep. 121; Hall v. Tay-
lor, 27 L. J., Q. B. 311; S. C. 1
E. B. & E. 197; organist, Ed-
wards v. Lowndes, 1 E. & B. 81.
As to whether mandamus lies, see
1 Bail C. C. 141. Debt will not
lie for salary due out of borough
fund, Addison v. Mayor of Preston,
12 C. B. 108.

(u) Protection is sometimes given by Acts of Parliament to persons acting in pursuance of them. A person is entitled to that protection who acts bond fide and in the reasonable belief that he is pursuing the Act of Parlia

Hall v.
Smith.

done, so far as they are concerned, with due care and attention'; nor are they responsible for the negligent execution of orders properly given. If they exceed their powers, they are of course liable (x); and so they are if they act wantonly and oppressively (y), or maliciously (z), or even carelessly and negligently (a), in the exercise of their powers.

The cases in which these principles have been applied are numerous (b), but those principles cannot be better explained than is done by Lord Wynford, in his admirable judgment in the case of Hall v. Smith (c).

That was an action on the case for negligently leaving a ditch or tunnel open, into which the plaintiff fell and was in