attached much greater importance and solemnity to wills than we do. In a passage in the Digest, with reference to an action for fraudulent deterioration of property, it is said to transmit because "rei continet persecutionem." This quite supports the distinction stated above between claims for solatium and ordinary claims for pecuniary compensation based on delict. The question therefore comes to be, whether, apart from any question of mora, and even where there has been no opportunity to raise action, a just claim for damages in respect of slander is to be cut off by the death of the slandered party, the law at the same time not recognising a right in the deceased's next-of-kin to sue for solatium to their feelings. No doubt the claim is one which should be made at once. It comes in place of the Palinode before the Commissary Court, where recantation was ordered; and probably a public retractation and apology may be a good defence in certain actions for slander. But then the executors, coming in place of the deceased, are liable, as well as he, to a plea of mora. It would unquestionably be in many cases a rash inference, that the deceased had abandoned a claim because he had not raised an action. Poverty, want of evidence, want of advice, might be adequate reasons for his not doing so. The question is apparently one of the presumed intention of the deceased. There is little doubt that if action had been raised the executors would have sufficient title to carry it on. "Pœnales autem actiones, si ab ipsis principalibus personis fuerit contestata, et heredibus dantur, et contra heredes transeunt."-Inst. iv. 12, 1. It would, however, be very strange if the intention of the deceased could be ascertained, e.g. from letters written by him, and if the title of the executors depended on this. Or if the deceased directed his executors in his will, or by a separate writing, to raise an action, would this be held to confer a sufficient title? Or can a man's feelings and his estate be so completely separated, that his right to a large sum of money in name of damages is extinguished by his death? It would rather appear that there may be legitimate feelings of survivors entitled to satisfaction, for whom therefore the executors might recover in trust, as is done subject to the direction of a jury under the Act 9 & 10 Vict. c. 93. The general result rather seems to be, that a very short period of prescription should be established for actions based on slander, whether for solatium or for compensation. This apparently was the rule in Civil Law, which directed that all Prætorian actions, being those in pœnam or at least based on delict (for they might be rei persecutoria), should be brought within a year. There must surely have been some more solid foundation for this comprehensive rule than that indicated by Justinian, when he says: "Nam et ipsius Prætoris intra annum erat imperium."

THE AMERICAN LAW REGARDING THE LIABILITY OF A MASTER FOR THE WRONGFUL ACTS OF HIS SERVANT.

(From the Albany Law Journal.)

IN the many and various relations and exigencies of social life it is frequently found impossible for a man to superintend or execute his own business, and hence a necessity arises to engage others to assist him, and intrust them with the performance of duties devolving on himself. Once this necessity was acknowledged, it became necessary for law to regulate and define the accountability of such as employed a servant or agent, or intrusted him with the execution of any business. And this the law did, on the natural and obvious principle that, as the master was himself liable for any wrong or injury to others in the performance of his work, so one whom he employed as his servant was his instrument, and cast upon him the same liability as if the act were done by himself. There is thus an identity between the principal and his agent; the one being the alter ego of the other; and the law formulated this natural and universally accepted principle into the well-known maxim:-"qui facit per alium, facit per se."

Therefore, the law of all civilized countries lays it down as a cardinal principle, that when a man commands his servant, either expressly or by implication, to do any act, or carry on any business, he shall be considered as acting himself. This relationship of master and servant is also applicable to many other relations in the world, such as between principal and agent, owners and masters of ships, merchants and factors, and all such others as have authority to enforce obedience to their orders from those whose duty it is to obey them, and whose acts, as far as conformable to their duty and office, are esteemed the acts of their principals. 4 Bac. Abr. 583; Smith's Master and Servant, 187.

The responsibility which attached to a master was originally based upon the control and superintendence which he exercised over his servant, as well as the identity, and this control grew out of the original status of a servant, which we know to have been synonymous with the word slave. Hence in the civil law the liability was confined to a person standing in the relation of pater-familias to the person doing the injury. (Inst. lib. 4, tit. 3, § 1; Dig. lib. 9, tit. 3.) Thus in Colquhoun's Roman Law, vol. i. § 431:

"To the system of slavery is referable the doctrine of the English law of principal and agent; for the slave was as it were a part of the master. The English law has transferred the maxim to servants, and those are held to be such even though hired but for the moment, as porters," etc.

In determining the extent of the master's liability, and in discriminating the various relations and circumstances in which this liability exists, it would be desirable to bear this element of con

trol in mind, for it will be found very useful in solving some of the questions that arise out of the relationship of master and servant. It was on this ground cases were decided making the maşter liable for the tortious acts of the servant even against the master's orders, when the master was present, and bound to exert this control. Sheath v. Wilson, 9 C. and P., 607.

However, because of the enlargement of business agencies, and the wider extent of men's efforts in modern times, there must be numerous occasions where this element of direct personal control cannot enter, and hence we must seek to establish the liability upon other and more practicable grounds.

It must be maintained, therefore, that in the absence of this control, the liability which attached formerly because of it must necessarily be modified, or not so strictly defined, for the servant or agent must now be allowed a greater discretion and freer action. In the adjudication of such cases, the policy of the law should ever have before it two principal aims-the one to afford third parties, or the public, reasonable and adequate protection from injury or violence; the other, to fix the liability of the master so it shall not be in the power of every servant to subject his master to what actions or penalties he pleases.

Since it is an unquestioned and universal rule of law that a master is responsible civiliter to third parties for injuries sustained by them, through a servant carrying out his master's orders or executing his business, it will be only necessary to discuss this subject under the following heads:

I. Liability for the negligence or unskilfulness of a servant. II. Liability for the wilful and malicious acts of a servant. III. Liability for injury to a servant by act of a fellow servant. IV. Liability for acts of a contractor's servant.

I. Some of our earliest reported cases clearly fixed this liability; and, indeed, it seems strange to question it, since there is an implied contract strictly and imperatively binding that a master shall at his peril employ servants who are skilful and careful. Reeve, 517; 1 Salk. 441; Gilmartin v. The Mayor of New York, 55 Barb. 108.

Indeed, we cannot conceive the simplest state of civilized society where such a rule would not be in force. It is indispensable to the security of the rights and property of all who may be affected by such negligence or default. Pothier on Obligations, 453-456.

So, if a servant in the performance of any work or duty injure another or his property through unskilfulness, the master must be liable, as by undertaking the work he impliedly warrants the competency and skilfulness of his servants. 1 Black. Com. 431; Story on Bailm. 400-406.

A distinction, however, has been taken where the negligence is in defiance of, or in disobedience to, the orders of the master, or where it was wilful; but it must be maintained that such a dis

tinction is unwarrantable and dangerous. Once such a distinction is made and recognized, there must be a serious risk to person and property, and a liability for injury will be difficult to fix, and may be in most instances avoided, as a person might, and naturally would, claim exemption by attributing the injury to a negligent or wilful disobedience of orders. On this head, Judge Grier remarked in Phila. & Reading R. R. Co. v. Derby, 14 How. (U.S.) 468: "If such disobedience could be set up by a railroad company as a defence, when charged with negligence, the remedy of the injured party would in most cases be illusive, discipline would be relaxed, and the danger to life and limb of the traveller greatly enhanced." And in justice, it should never exonerate one from a liability; for negligence can only arise where there is some duty, and surely no one ought to be allowed to disregard a duty because of another's negligence to whom he has intrusted the performance of that duty.

Of course, it is presumed the negligence takes place while the servant is in the master's service. The statute law of New York stringently but justly holds the principal to this liability, for the owners of carriages for the conveyance of passengers on a turnpike or public highway are liable for all injuries done to any persons by the act of the driver, whether such act be wilful, negligent, or otherwise. 1. R. S., 696.

Everywhere the tendency of the law at present is to fix this liability very strictly and unequivocally. Story says (Agency, § 452): "A principal is liable to third parties in a civil suit for negligence, and other malfeasances, or misfeasances and omission of duty of his agent in the course of his employment, although the principal did not authorize, or justify or participate in, or indeed know of such misconduct, or even if he forebade them or disapproved of them." In Howe v. Newmarch, 12 Allen, 49, Judge Hoar said: "The authorities all agree that when an action is brought against a master for an injury occasioned by the servant's negligence in his service, it is no defence that the master directed the servant to be careful, or even that he cautioned him against the particular act of negligence which produced the injury.'

In Croft v. Alison, 4 B. & Ald. 590, the case showed that the defendant's servant had wilfully struck the plaintiff's horses when drawing his master's carriage, in order to extricate himself from an entanglement of the carriages, occasioned by his own fault, and thereby had caused an injury to the plaintiff's carriage; and, in consequence, a verdict for the plaintiff was given on the case, for negligence. See, further, Andrus v. Howard, 36 Vt. 248; Southwick v. Estes, 7 Cush. 385; Chapman v. N. Y. Central R. R. Co., 33 N. Y. 369; Pickens v. Diecker, 21 Ohio, 212.

II. In this second division of the subject, we have to encounter the most troublesome, and practically the most important considerations which more intimately concern the public, and more frequently press themselves upon our attention. Since, in the vast field and

direction in which men's operations are conducted in modern times, there cannot be that direct personal superintendence and control over their servants and agents as there could when men's efforts were more limited and restricted, the grave question arises, How are we to limit, fix, or define the responsibility of a master for the acts of his servant, either wilful or malicious? The gist of the inquiry will be more significantly and pointedly brought to the mind by asking two questions: Is the master responsible for all the wilful or malicious acts of his servant while he continues in his employ? Is he responsible for any of the wilful or malicious acts of his servant while he continues in his employ? No one will dare to answer the first question unqualifiedly in the affirmative, nor would any venture to answer the other in the negative. Therefore, we have narrowed the question to this extent, and are forced to this conclusion, that there must be a responsibility; and the question now is, under what circumstances, and how far does it extend?

To determine this it will be best, first, to examine a few of the leading cases, noting their peculiar facts, and the decision resting upon them, and thus find out if we can in some way evolve a general law or principle controlling them.

The leading case on this subject, and the one to which reference is most frequently made, is MacManus v. Crickett, 1 East, 106. There the defendant's servant, while in his employ, wilfully drove against the plaintiff, causing an injury, and it was held, that to make the master liable for the tortious acts of his servant, the act must have been shown to have been committed by the servant, while in the service of his master. The Court in this case remarked: "That when a servant quits sight of the object for which he is employed, and without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and his master will not be answerable for such act." But the Court added: "This doctrine does not at all militate with the cases in which a master has been holden liable for the mischiefs arising from the negligence and unskilfulness of his servant, who had no purpose but the execution of his master's orders."

In Seymour v. Greenwood, 6 H. & N. 359, the plaintiff, a passenger by an omnibus, while being forcibly removed from it by the guard in charge, was thrown on the ground and seriously injured. The proprietor of the omnibus, on being applied to for compensation, stated the plaintiff was drunk and refused to pay his fare. The plaintiff did not deny that he had been drinking. Held, that the proprietor was liable, as the guard was executing the commands of the master when the injury was committed, and in the ordinary course of the employment intrusted to him.

In Lyons v. Martin, 8 Ad. & El. 512, the servant of a master was authorized merely to distrain cattle damage feasant, but he deliberately drove the cattle from the highway into his master's close, and