out showing guilty knowledge on the part of the defendant, who was merely acting as shopman, and the jury having found that there was no guilty knowledge, the prisoner was acquitted. "If," said the learned Baron, "the master had been indicted, the evidence might apply, because the jury would infer that he was aware of the quality of the articles that he was selling, but it was different in the case of a shopman. Although, undoubtedly, a gross fraud, it did not constitute an indictable offence" (u). liable to in master, There are also many cases which may properly be mentioned Servant in this place, but to which it is unnecessary to advert at any dietment for length, as they scarcely come within the scope of the present breach of work, in which servants may be liable to indictment for cul- duty to his pable neglect of the duty undertaken by them towards their which inemployer, where that duty also involved a duty to the public. volved pubSuch, for instance, as the driver of a carriage or the captain of a vessel, who, by negligent driving or navigation, causes the death of any person. In such cases, though the master may be liable in a civil action for the consequences of his servant's negligence, yet the servant must answer criminally for his own personal negligence (x). lic duty. In a case, therefore, in which the ground bailiff of a mine, R. v. Haines. whose duty it was to cause proper air-headings to be put up to prevent the accumulation of noxious gases, neglected to do so, and an explosion of fire-damp took place, which killed a person, for whose manslaughter he was indicted; Maule, J., in summing up, told the jury that if they were satisfied that it was the ordinary and plain duty of the prisoner to have caused an airheading to be made, and that a man using reasonable diligence would have had it done, and that by the omission the death of the deceased occurred, they ought to find the prisoner guilty of manslaughter (y). But it has been held that an engineer, R. v. Barrett. under similar circumstances, could not be convicted of manslaughter upon an indictment which did not allege a duty in him which he had neglected to perform (2). It would seem, however, to be sufficient to allege facts from which the law would infer such duty (a). Where a banksman, whose duty it was to place a stage on R. v. Hughes. the mouth of a shaft to receive a loaded truck run down to it on a tramway, neglected to place the stage, in consequence of which the truck fell down the shaft and killed a workman, the (u) R. v. Lamade, Centr. Cr. Court, Feb. 4th, 1853. (x) See R. v. Allen, 7 C. & P. 153; R. v. Green, ib. 156, where the captains of steamers were indicted for the manslaughter of persons killed by being run down by the steamers: but were acquitted, as there was no proof of any personal act, and see R. v. Taylor, 9 C. & P. 672. (y) R. v. Haines, 2 Carr. & K. 368, the prisoner was acquitted. See also R. v. Pocock, 17 Q. B. 38. The neglect of duty must be immediately connected with the death. (z) R. v. Barrett, 2 C. & K. 343. See the form of the indictment in the note to R. v. Haines, ubi supra. (a) R. v. Hughes, infra. Indictments for nuisances. Punishment of persons railways guilty of misconduct. banksman was held guilty of manslaughter (b). In that case Lord Campbell said: "It was the duty of the prisoner to place the stage on the mouth of the shaft. The death of the deceased was the direct consequence of the omission of the prisoner to perform this duty. If the prisoner, of malice aforethought, and with the premeditated design of causing the death of the deceased, had omitted to place the stage on the mouth of the shaft, and the death of the deceased had thereby been caused, the prisoner would have been guilty of murder. According to the common law form of an indictment for murder by reason of the omission of a duty, it was necessary that the indictment should allege that it was the duty of the prisoner to do the act, or to state facts from which the law would infer this duty (c). But it has never been doubted that if death is the direct consequence of the malicious omission of the performance of a duty (as of a mother to nourish her infant child), this is a case of murder. If the omission was not malicious and arose from negligence only, it is a case of manslaughter. It has been held that to make the captain of a vessel guilty of manslaughter in causing a person to be drowned in running down a boat, proof of a mere omission on his part to do the whole of his duty is not sufficient (d). But there is no authority for the position that without an act of commission there can be no manslaughter; and, on the contrary, the general doctrine seems well established that what constitutes murder being by design and of malice prepense constitutes manslaughter when arising from culpable negligence." Moreover, many instances are to be found in the books of cases in which servants and workmen have been joined with their masters and employers in indictments for nuisances; some of which, by way of example, are referred to in the note (e). The performance of their duties to their masters by servants of railway companies are enforced by Act of Parliament. Thus employed on in the Act for Regulating Railways (f), there is, for the protection of the public, inserted a provision for the punishment of servants of railway companies who are guilty of misconduct. 3 & 4 Vict. c. By that act it is enacted "That it shall be lawful for any officer or agent of any railway company, or for any special constable duly appointed, and all such persons as they may call to their assistance, to seize and detain any engine-driver, guard, porter or other servant in the employ of such company who shall be found drunk while employed upon the railway, or commit any 97, s. 13. (b) Ibid. 26 L. J., M. C. 202; S. C. 1 Bell, C. C. 248. (c) R. v. Edwards, 8 C. & P. 611; R. v. Goodwin, 1 Russ. on Cr. 563, note, 3rd edit. (d) R. v. Allen, 7 C. & P. 153. (e) R. v. Pease, 4 B. & Ad. 30; R. v. Scott, 5 Q. B. 543; R. v. Charlesworth, 16 Q. B. 1012; R. v. Betts, 16 Q. B. 1022. See also Wilson v. Peto, 6 B. Moore, where a clerk who directed the workmen and superintended the erection of a building which occasioned a nuisance, was held liable as a co-defendant with the contractor. Thompson v. Gibson, 7 M. & W. 456. (f) 3 & 4 Vict. c. 97, s. 13. offence against any of the bye-laws (g), rules or regulations of such company, or shall wilfully, maliciously or negligently do or omit to do any act whereby the life or limb of any person passing along or being upon the railway belonging to such company or the works thereof respectively shall be or might be injured or endangered, or whereby the passage of any of the engines, carriages or trains shall be or might be obstructed or impeded, and to convey such engine-driver, guard, porter or other servant so offending, or any person counselling, aiding or assisting in such offence with all convenient despatch before some justice of the peace for the place within which such offence shall be committed without any other warrant or authority than this act; and every such person so offending and every person counselling, aiding or assisting therein as aforesaid shall, when convicted before such justice as aforesaid (who is hereby authorized and required, upon complaint to him made upon oath, without information in writing, to take cognizance thereof and to act summarily in the premises) in the discretion of such justice be imprisoned with or without hard labour for any term not exceeding two calendar months, or in the like discretion of such justice shall for every such offence forfeit to her Majesty any sum not exceeding ten pounds, and in default of payment thereof shall be imprisoned with or without hard labour as aforesaid for such period not exceeding two calendar months, as such justice shall appoint; such commitment to be determined on payment of the amount of the penalty, and every such penalty shall be returned to the next ensuing court of quarter sessions in the usual manner." peace em to quarter sessions. "Provided always (h) that (if upon the hearing of any such Sect. 14. complaint he shall think fit) it shall be lawful for such justice, Justice of the instead of deciding upon the matter of complaint summarily, to powered to commit the person or persons charged with such offence for send any case trial for the same at the quarter sessions for the county or place wherein such offence shall have been committed, and to order that any such person so committed shall be imprisoned and detained in any of her Majesty's gaols or houses of correction in the said county or place in the meantime, or to take bail for his appearance, with or without sureties, in his discretion; and every such person so offending and convicted before such court of quarter sessions as aforesaid (which said court is hereby required to take cognizance of and hear and determine such complaint), shall be liable, in the discretion of such court, to be imprisoned, with or without hard labour for any term not exceeding two years." By the Act for the better Regulation of Railways (i), passed 5 & 6 Vict. c. a few years afterwards, after reciting the foregoing provision, 55, s. 17. and that it was expedient to extend the same, it is enacted, that it shall be lawful for any officer or agent of any railway company, or for any special constable duly appointed, and all such persons (g) As to the making of byelaws, see the "Companies Clauses Consolidation Act, 1845," 8 & 9 Vict. c. 16, s. 127, et seq., and the "Railways Clauses Conso lidation Act, 1845," 8 & 9 Vict. (h) Sect. 14. (i) 5 & 6 Vict. c. 55, s. 17. 5 & 6 Vict. as they may call to their assistance, to seize and detain any c. 55, s. 17. engine-driver, waggon-driver, guard, porter, servant or other Servants or mariners bridge liable person employed by the said or by any other railway company, or by any other company or person in conducting traffic upon the railway belonging to the said company, or in repairing or maintaining the works of the said railway, who shall be found drunk while so employed upon the said railway; who shall commit any offence against any of the bye-laws (k), rules or regulations of the said company; or who shall wilfully, maliciously or negligently do, or omit to do, any act whereby the life or limb of any person passing along or being upon such railway, or the works thereof respectively, shall be or might be injured or endangered; or whereby the passage of any engines, carriages or trains shall or might be obstructed or impeded, and to convey such engine-driver, guard, porter, servant or other person so offending, or any person counselling, aiding or assisting in such offence, with all convenient dispatch, before some justice of the peace for the place within which such offence shall be committed, without any other warrant or authority than this act; and every such person so offending, and every person counselling, aiding or assisting therein as aforesaid, shall, when convicted upon the oath of one or more credible witness, or witnesses, before such justice as aforesaid (who is hereby authorized and required upon complaint to him made upon oath, without information in writing, to take cognizance thereof, and to act summarily in the premises), in the discretion of such justice be imprisoned, with or without hard labour, for any terin not exceeding two calendar months; or, in the like discretion of such justice, shall, for every such offence, forfeit to her Majesty any sum not exceeding ten pounds, and in default of payment thereof shall be imprisoned, with or without hard labour, as aforesaid, for such period not exceeding two calendar months, as such justice shall appoint, such commitment to be determined on payment of the amount of the penalty, and every such penalty shall be returned to the next ensuing court of quarter sessions in the usual manner." Clauses also are to be found in various other Acts of Parliament subjecting workmen and servants to penalties for offences against the act committed whilst in the supposed discharge of their duty to their employers. Thus, in the Act for Rebuilding Westminster Bridge (1), there is a clause which provides that wilfully in- in case of damage or mischief done to the bridge by any ship, juring West- lighter, &c., through the wilful negligence of any person having minster the command of any such ship, lighter, &c., or any of the to indemnify mariners or persons employed therein, the owner of such ship, lighter, &c., shall be answerable for the amount; and then follows a clause enacting, "That in case the owner of any such ship, lighter, barge, boat, float, raft or vessel shall be compelled to pay any penalty, or to make satisfaction for any damages by reason of any neglect or default done or committed by his servants or mariners, or any of them, such servants or mariners, and each and every of them, shall be liable to (1) 16 & 17 Vict. c. 46, ss. 15, master. (k) Supra, p. 239, note (g). 16. pay such penalty or damages (with the costs thereof) to such owner; and in case of nonpayment upon demand thereof, and oath made by such owner of the payment made by him of such penalty, satisfaction, or damages, and that the same, and the costs thereof, have not been repaid to him by such servants or mariners, or any of them, although demanded, (such oath to be made before any one or more justice or justices of the peace of the county or place where such penalty or satisfaction shall have been recovered,) the amount thereof, provided the same shall not exceed the sum of twenty pounds, shall be recovered in the same manner as any penalty is thereby directed to be recovered," i. e., under the provisions of the Companies Clauses Consolidation Act, 1845 (m). Metropolitan And in the Metropolitan Building Act, 1855 (n), there is a pro- Workmen vision that if any workman, labourer, servant, or other person violating employed in or about any building, wilfully, and without the Building privity or consent of the person causing such work to be done, Act. does anything in or about such building contrary to the rules of that act, he shall, for each such offence, incur a penalty not exceeding 50s. criminal others con. A distinction of considerable importance must also here be It is no anadverted to, which obtains between civil and criminal pro- swer in ceedings for the consequences of negligence. In civil proceed- proceedings ings, as we have seen, no person can recover damages against a that person master for the negligence of his servant if he has by his own injured or negligence contributed to or caused the injury complained of. tributed to But in criminal proceedings the converse of that proposition is his injury. true: and it is no answer to a criminal charge, as of manslaughter, that the deceased by his own negligence or improper conduct, or by being deaf or drunk, contributed to his own death (0). So highly does the law value human life, that every person who has contributed to destroy it, is responsible; and it does not diminish that responsibility that others also have been guilty of negligence (p). IN CASES OF TORT-CIVILITER. doers are It is a general rule in cases of tort, that all persons concerned All wrongin the wrong are liable to be charged as principals. It was principals. said in Sands v. Child (q), "that the warrant of no man, not Sands v. even of the king himself, can excuse the doing of an illegal act; Child. for although the commanders are trespassers, so are also the persons who did the fact." A servant, therefore, can in no case Servant excuse himself from liability to an action founded upon a mis- misfeasance, feasance or positive wrong done to another person, upon the though in (m) 8 & 9 Vict. c. 16. (n) 18 & 19 Vict. c. 122, s. 48. (o) R. v. Swindall, 2 C. & K. 230. (p) Ibid.; and see R. v. Haines, 2 C. & K. 368. (q) 3 Lev. 352. But see Buron v. Denman, 2 Exc. 167, where the captain of a man-of-war, having M liable for |