servant's authority is a question of fact (i). Much must depend on the nature of the matter in which the authority is given. Thus an agent entrusted with general and ample powers for the management of a farm has been held to be clearly outside the scope of his authority in entering on the adjacent owner's land on the other side of a boundary ditch in order to cut underwood which was choking the ditch and hindering the drainage from the farm. If he had done something on his employer's own land which was an actionable injury to adjacent land, the employer might have been liable. But it was thought unwarrantable to say "that an agent entrusted with authority to be exercised over a particular piece of land has authority to commit a trespass on other land" (k). trespasses, master's purposes. (d) Lastly, a master may be liable even for wilful and Wilful deliberate wrongs committed by the servant, provided they &c. for be done on the master's account and for his purposes : and this, no less than in other cases, although the servant's conduct is of a kind actually forbidden by the master. Sometimes it has been said that a master is not liable for the "wilful and malicious" wrong of his servant. "malicious" means "committed exclusively for the servant's private ends," or "malice" means "private spite" (1), this is a correct statement; otherwise it is contrary to modern authority. The question is not what was the nature of the act in itself, but whether the servant intended to act in the master's interest. If This was decided by the Exchequer Chamber in Limpus v. London General Omnibus Company (m), where the de (i) Bank of New South Wales v. Owston (1879) (J. C.) 4 App. Ca. 270, 48 L. J. P. C. 25. (k) Bolingbroke v. Swindon Local Board (1874) L. R. 9 C. P. 575, 43 L. J. C. P. 575. (7) See per Blackburn J., 1 H. & C. 543. (m) 1 H. & C. 526, 32 L. J. Ex. 34 (1862). This and Seymour v. Green Fraud of agent or servant. fendant company's driver had obstructed the plaintiff's omnibus by pulling across the road in front of it, and caused it to upset. He had printed instructions not to race with or obstruct other omnibuses. Martin B. directed the jury, in effect, that if the driver acted in the way of his employment and in the supposed interest of his employers as against a rival in their business, the employers were answerable for his conduct, but they were not answerable if he acted only for some purpose of his own and this was approved by the Court (n) above. The driver "was employed not only to drive the omnibus, but also to get as much money as he could for his master, and to do it in rivalry with other omnibuses on the road. The act of driving as he did is not inconsistent with his employment, when explained by his desire to get before the other omnibus." As to the company's instructions," the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability " (o). That an employer is liable for frauds of his servant committed without authority, but in the course of the service and for the employer's purposes, was established with more difficulty; for it seemed harsh to impute deceit to a man personally innocent of it, or (as in the decisive cases) to a corporation, which, not being a natural person, is incapable of personal wrong-doing (p). But when it was wood (above) overrule M'Manus v. (n) Williams, Crompton, Willes, (0) Willes J. 1 H. & C. at p. 539. (p) This particular difficulty is fallacious. It is in truth neither more nor less easy to think of a corporation as deceiving (or being deceived) than as having a consenting mind. In no case can a corporation be invested with either rights or duties except through natural persons who are its agents. Cp. British Mutual Banking Co. v. Charnwood Forest Ry. Co. (1887) 18 Q. B. Div. 714, 56 L. J. Q. B. 449. fully realized that in all these cases the master's liability is imposed by the policy of the law without regard to personal default on his part, so that his express command or privity need not be shown, it was a necessary consequence that fraud should be on the same footing as any other wrong (q). So the matter is handled in our leading authority, the judgment of the Exchequer Chamber delivered by Willes J. in Barwick v. English Joint Stock Bank. "With respect to the question, whether a principal is answerable for the act of his agent in the course of his master's business, and for his master's benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong" (r). This has been more than once fully approved in the Privy Council (s), and may now be taken, notwithstanding certain appearances of conflict (t), to have the approval of the House of Lords also (u). What has been said to the contrary was either extra-judicial, as going beyond the ratio decidendi of the House, or is to be accepted as limited to the particular case where a member of an incorporated company, not having ceased to be a member, seeks to charge the company with the fraud of its directors or other agents in inducing him to join it (x). (a) It makes no difference if the fraud includes a forgery: Shaw v. Port Philip Gold Mining Co. (1884) 13 Q. B. D. 103. (r) (1867) L. R. 2 Ex. at p. 265. (s) Mackay v. Commercial Bank of New Brunswick (1874) L. R. 5 P. C. 412, 43 L. J. P. C. 31; Swire v. Francis (1877) 3 App. Ca. 106, 47 L. J. P. C. 18. (t) Addie v. Western Bank of Scotland (1867) L. R. 1 Sc. & D. 145, dicta at pp. 158, 166, 167. (u) Houldsworth v. City of Glasgow Bank (1880) 5 App. Ca. 317. (x) Ib., Lord Selborne at p. 326, Lord Hatherley at p. 331; Lord Blackburn's language at p. 339 is more cautious, perhaps for the very reason that he was a party to the decision of Barwick v. English Joint Stock Bank. Shortly, the shareholder is in this dilemma: while he is a member of the company, he is damnified by the alleged deceit, if at all, solely in that he is Liability of firm for partner. But conversely a false and fraudulent statement of a servant made for ends of his own, though in answer to a question of a kind he was authorized to answer on his master's behalf, will not render the master liable in an action for deceit (y). The leading case of Mersey Dock_Company_v. Gibbs (≈) may also be referred to in this connexion, as illustrating the general principles according to which liabilities are imposed on corporations and public bodies. There is abundant authority in partnership law to show fraud of a that a firm is answerable for fraudulent misappropriation. of funds, and the like, committed by one of the partners in the course of the firm's business and within the scope of his usual authority, though no benefit be derived therefrom by the other partners. But, agreeably to the principles above stated, the firm is not liable if the transaction undertaken by the defaulting partner is outside the course of partnership business. Where, for example, one of a firm' of solicitors receives money to be placed in a specified investment, the firm must answer for his application of it, but not, as a rule, if he receives it with general instructions to invest it for the client at his own discretion (a). Again, the firm is not liable if the facts show that exclusive credit liable as a shareholder to contribute remedy as against the company: though the fraudulent agent remains personally liable. (y) British Mutual Banking Co. v. Charnwood Forest Ry. Co. (1887) 18 Q. B. Div. 714, 56 L. J. Q. B. 449. (2) L. R. 1 H. L. 93 (1864-6). (a) Cp. Blair v. Bromley, 2 Ph. 354, and Cleather v. Twisden (1883) 24 Ch. D. 731, with Harman v. Johnson, 2 E. & B. 61, 22 L. J. Q. B. 297. was given to the actual wrong-doer (b). In all these cases the wrong is evidently wilful. In all or most of them, however, it is at the same time a breach of contract or trust. And it seems to be on this ground that the firm is held liable even when the defaulting partner, though professing to act on behalf of the firm, misapplies funds or securities merely for his own separate gain. The reasons given are not always free from admixture of the Protean doctrine of "making representations good," which is now, I venture to think, exploded (c). servants servants. 3. There remains to be considered the modification of a Injuries to master's liability for the wrongful act, neglect, or default by fault of of his servant when the person injured is himself in and fellowabout the same master's service. It is a topic far from clear in principle; the Employers' Liability Act, 1880, has obscurely indicated a sort of counter principle, and introduced a number of minute and empirical exceptions, or rather limitations of the exceptional rule in question. That rule, as it stood before the Act of 1880, is that a Common master is not liable to his servant for injury received from master's immunity. any ordinary risk of or incident to the service, including acts or defaults of any other person employed in the same service. Our law can show no more curious instance of a rapid modern development. The first evidence of any such rule is in Priestley v. Fowler (d), decided in 1837, which proceeds on the theory (if on any definite theory) that the master "cannot be bound to take more care of (b) Ex parte Eyre, 1 Ph. 227. See more illustrations in my "Digest of the Law of Partnership," art. 24. (e) I have discussed it in Appendix K. to "Principles of Contract," 5th ed. p. 707. See now Maddison v. Alderson (1883) 8 App. Ca. at p. 473, 51 L. J. Q. B. 737. (d) 3 M. & W. 1. All the case actually decided was that a master does not warrant to his servant the sufficiency and safety of a carriage in which he sends him out. law rule of |