THREE MORTGAGES TO DIFFERENT MORTGAGEES, executed simultaneously, and each referring to the others as executed at the same time and to be recorded with it, and stating that all of them "are alike in time and neither is to have precedence of the other, but to be alike security to each," are substantially one mortgage, and the mortgagees are tenants in common: Howard v. Chase, 104 Mass. 251, citing the principal case.

PARSONS V. WINCHELL.

[5 CUSHING, 592.]

MASTER AND SERVANT ARE NOT JOINTLY LIABLE FOR SERVANT'S NEGLI GENCE, in the master's absence, in so driving a team as to cause an injury to another.

CASE against two of the defendants as owners of a certain carriage and horses, and against the other defendant as their servant, for the latter's negligence in so managing and driving said carriage and horses as to cause an injury to the plaintiff's carriage, while passing along the highway. It appearing that the owners of the defendants' team were not present when the injury happened, the defendants insisted that they were not jointly liable. The presiding judge ruled otherwise. Verdict in favor of one of the defendants who was owner of the horses and against the other two. Exceptions by the defendants.

2. A. Chapman and W. G. Bates, for the defendants. C. P. Huntington and C. Delano, for the plaintiff.

By Court, METCALF, J. The question to be decided is, whether this action on the case, brought against the owners of horses and a carriage, and their servant the driver, jointly, can be maintained for an injury done by the negligent driving of the servant, in the absence of the owners. And we are of opinion that it can not.

To maintain an action against two or more jointly, the plaintiff must show a joint cause of action. In an action ex delicto, the act complained of must be the joint act of all the defendants, either in fact or in legal intendment and effect. In trespass, all are principals, and he who commands a trespass to be committed, though absent when it is committed, is regarded as a trespasser, and may be sued alone or jointly with him who obeyed his command. And it has been decided, where one of several proprietors of a coach and horses acted as driver, in the absence of the others, and injured a third party by negligent driving, that he and the other proprietors were jointly liable to

such party in an action on the case: Moreton v. Hardern, 6 Dow. & Ry. 275, and 4 Barn. & Cress. 223. They were all held to be responsible for the conduct of the person whom they suffered to drive, whether he was one of themselves or their servant. But the act of a servant is not the act of the master, even in legal intendment or effect, unless the master previously directs or subsequently adopts it. In other cases, he is liable for the acts of his servant, when liable at all, not as if the acts were done by himself, but because the law makes him answerable therefor. He is liable, says Lord Kenyon, "to make a compensation for the damage consequential from his employing of an unskillful or negligent servant:" McManus v. Crickett, 1 East, 108. The servant also is answerable to the party injured by his acts done as servant, and is answerable to the master for any damages which the master may be compelled to pay for his wrongful acts, unless those acts were directed by the master But if the master and servant were jointly liable to an action like this, the judgment and execution would be against them jointly, as joint wrong-doers, and the master, if he alone should satisfy the execution, could not call on the servant for reimbursement, nor even for contribution: Merryweather v. Nixan, 8 T. R. 186; Vose v. Grant, 15 Mass. 505, 521.

It is said, in Hammond on Parties, 77, that where a sheriff's bailiff or a carrier's servant is liable for causing a breach of duty, he can not be charged jointly with his superior, since the grounds of their liability are different. And it was decided in Campbell v. Phelps, 1 Pick. 62 [11 Am. Dec. 139], that a sheriff and his deputy could not be joined in an action for the act of the deputy alone, though both were severally liable for the act. That case, as it seems to us, is not distinguishable from the case at bar. And we find no decision to the contrary, though it was said by Cowen, J., in Wright v. Wilcox, 19 Wend. 343 [32 Am. Dec. 507], that he saw no reason why a joint action like the present would not lie.

In 1 Walford on Parties, 564, 565, it is said that "the only instance" in which a principal is chargeable for the acts of an inferior, so as to afford a joint right of action against both, is that of a sheriff who is chargeable jointly with his under-officer, when the latter commits a tort under color of executing legal process: See also Broom on Parties, 273, 274.

The authorities referred to by these writers are not conclusive on the question, whether even a sheriff in England can be sued jointly, with his under-officer, for the act of the latter. How

ever this may be, the case of Campbell v. Phelps, before cited, has settled that question in this commonwealth.

causes.

The plaintiff's counsel relied, in support of this action, on the case of Michael v. Alestree, 2 Lev. 172, and we have carefully examined it. It was an action on the case "for that the defendants, in Lincoln's Inn Fields, a place where people are always going to and fro about their business, brought a coach, with two ungovernable horses, and then, improvidently, incautiously, and without due consideration of the unfitness of the place, there drove, to make them tractable, and fit them for a coach; and the horses, because of their ferocity, being not to be managed, ran upon the plaintiff, and hurt and grievously wounded him." The report states that "the master was absent, yet the action was brought against him, as well as his servant, and both found guilty." A motion was made in arrest of judgment for several But judgment was given for the plaintiff; and the court said, among other things, "it shall be intended the master sent the servant to train the horses there." In Keble's report of the same case, 3 Keb. 650, no part of the declaration is set forth; but it is stated that the court said, on a motion in arrest, "it's at the peril of the owner to take strength enough to order them" (the horses) "and the master is as liable as the servant, if he gave him order for it; and the action is generally for bringing them thither." Thus it appears that the principle of the decision was, that the master, though absent, had ordered his servant to train intractable horses in a place constantly thronged with passengers, and was, therefore, in legal intendment, guilty of the act of training them there, jointly with his servant. Whether this principle was rightly applied in that case, we need not consider. Very clearly, it was recognized by the court: See Broom on Parties, 258, 259.

In Whitamore v. Waterhouse, 4 Car. & P. 383, an action was brought against the proprietors and driver of a coach for an injury done by the servant's careless driving. Mr. Justice Parke said he never saw a case before, in which the proprietors and coachmen were joined. But upon being referred to the case of Michael v. Alestree, he did not think proper to call on the plaintiff to discharge either the proprietors or the coachman; as the question would afterwards be open, in arrest of judgment. The plaintiff's counsel thereupon consented to the acquittal of the coachman, and the trial proceeded against the proprietors, who were also acquitted. That case, therefore, does not aid the present plaintiff.

New trial ordered.

JOINT LIABILITY of Master and Servant for Servant's NeglIGENCE OR TORTIOUS ACT: See Hill v. Caverly, 26 Am. Dec. 735; Wright v. Wilcox, 32 Id. 507. See also Johnson v. Barber, 50 Id. 416. See, particularly, as to whether a sheriff and his deputy are jointly liable for the latter's trespass: Campbell v. Phelps, 11 Id. 139, and the note thereto. To the point that a master and servant can not be regarded as joint trespassers for an injury committed by the servant in the master's absence, and not participated in by the latter, the principal case is cited in Pervear v. Kimball, 8 Allen, 200, and in Banfield v. Whipple, 10 Id. 30. But in Hewett v. Swift, 3 Id. 425, it was held that a joint action in the nature of trespass would lie against a corporation and its servant for a personal injury inflicted by the latter in discharging duties im posed by the corporation, though such duties might have been discharged with. out the use of undue force, as where a railway employee in forcibly removing a boy from a freight depot, pursuant to a regulation of the company, injured the boy by kicking him, though it was said, citing Parsons v. Winchell, that there would have been no joint liability if the company had been liable only in case. And where one was gratuitously superintending work done on another's land, without any contract for the purpose, and through his negligence, as well as that of the owner of the land, an injury was done to a third person, they were held jointly liable because the liability of both depended on the same grounds, distinguishing the principal case: Hawkesworth v. Thompson, 98 Mass. 79. So the doctrine of the case was held not to apply where one hired a horse and intrusted him to another to drive, and the latter injured him by immoderate driving in the presence and with the co-operation of the original hirer: Banfield v. Whipple, 10 Allen, 30. Nor does it apply to an action for false representations made by one of two owners of a chattel while acting for both in selling it: White v. Sawyer, 16 Gray, 589. The principal case is cited generally as to the liability of a master for a negligent injury by his servant in his absence, in Hilliard v. Richardson, 3 Id. 356.

PIERCE V. ANDREWS.

[6 CUSHING, 4.]

NO ESTOPPEL ARISES FROM DECEPTIVE ANSWER TO IMPERTINENT INQUIRY from one who may be deemed a meddling intruder, where the party makes known the truth as soon as he sees his answer acted on as true.

OWNER OF PROPERTY IS NOT ESTOPPED BY DECLARATION THAT ANOTHER OWNS IT, made to an agent of the latter's creditor in answer to an inquiry, where the agent discloses no interest and gives no reason for asking the question, and where, as soon as the property is levied on, the owner asserts his claim and forbids the sale and afterwards brings trespass.

TRESPASS for taking and carrying away a certain horse. The defendant justified as deputy sheriff under an execution in favor of one Brooks against the plaintiff's father, on the ground that the latter was owner. The plaintiff introduced evidence of ownership, and that when the property was seized he notified the defendant that the horse was his and forbade the sale. The defendant then introduced evidence of an arrangement between the

plaintiff and his father for the sale of the horse by the latter for the plaintiff, and authorizing the father to call the horse his for the purpose of sale, together with sundry subsequent declarations by the plaintiff and his father to various persons that the father was owner, and particularly a declaration to that effect made by the plaintiff to an agent whom the judgment creditor, Brooks, sent to make inquiry on the subject, the agent not disclosing his agency or interest in the matter. The defendant insisted that the plaintiff's declarations estopped him, but the court instructed the jury that the declarations to the agent were no estoppel if the agent gave no intimation of his interest or reason for asking, and the plaintiff had no knowledge of his interest or purpose; and also that the arrangement with the plaintiff's father and the subsequent declarations of both constituted no estoppel, if the plaintiff gave notice of his title and forbade a sale at the time of the seizure, but that all the plaintiff's declarations were competent evidence on the question of ownership. Verdict for the plaintiff; exceptions by the defendant.

W. Griswold, for the defendant.

D. Aiken, for the plaintiff.

By Court, METCALF, J. The ground on which a party, in a case like this, is estopped to deny his declarations, is, that to permit him to deny them would be to allow him to violate good faith, to the injury of an innocent person, whom he had induced to act on them as if they were true. And if Brooks' agent had told the plaintiff why he wished to know who owned the horse, and the plaintiff had told him it was the property of Avery Pierce, and had permitted the horse to be sold as Avery's, without retracting his statement, he might have been estopped from afterwards showing that the horse was his own: Stephens v. Baird, 9 Cow. 274. But, for aught that appears in the present case, the plaintiff had no reason to suppose that Brooks' agent had any interest in knowing who was the owner of the horse. And certainly no one can be estopped by a deceptive answer to a question which he may rightly deem impertinent, and propounded by a meddling intruder; especially if he gives notice of the truth, as soon as he perceives that his answer is acted upon as if it were true.

Exceptions overruled.

ESTOPPEL BY ADMISSIONS, REPRESENTATIONS, SILENCE, or conduct generally: See Dezell v. Odell, 38 Am. Dec. 628; Melvin v. Proprietors, Id. 384; Selma etc. R. R. Co. v. Tipton, 39 Id. 344; Brewer v. Boston etc. R. R. Co., Id.