defendant. Upon the other points raised during the argument there is no difference of opinion. The license to the defendant was, to use the shed for the purpose of having the signboard made therein, and the duty resulting was, that he should take reasonable care that no damage or injury should be occasioned by reason of such license to the plaintiff by any act of the defendant, or of any person employed by him to make the signboard. It being conceded that the act of Davies was a negligent act, and that he was the servant of the defendant in making the signboard, does it not follow that such act, having been committed in the use of the shed during the time he was there for the purpose of making the signboard, although not at the time actually at work at the signboard, was a breach of the duty resulting from the permission given by the plaintiff to the defendant? Davies was employed to make the signboard in the shed, and the consequence of negligence, to the plaintiff, is the same, whether he was actually at work or not, so long as it was committed in the use of the shed under the license given by the plaintiff to the defendant. The making of the signboard and the use of the shed cannot be disconnected, as it appears to me. The permission given by the plaintiff was to use the shed for the purpose of making the signboard, and negligence in the use of the shed appears to me to fall strictly within the course of Davies's employment, and that, therefore, the defendant was liable, and that the judgment of the Court below ought to be reversed. BLACKBURN, J.-The jury have found, in answer to a question put to them by the learned judge, "that the plaintiff lent the defendant the shed, as alleged," and a great part of Mr. Grove's argument was based upon the assumption, that under this finding we were to consider the defendant as a borrower of the shed, bound to keep it safely, as far as might be, and restore it; but this finding must be understood with reference to the allegation in the declaration, and the evidence, and I agree with the Court below, that it is not to be understood in the sense that there was any bailment of the shed as a chattel, or any demise of it as real property, but merely that the plaintiff did, for the defendant's accommodation, and without any reward to himself, permit the defendant, by his servants, to use the shed for the purpose of carpentering work. This is the mode in which the transaction is described in the declaration, which I think takes the true view of the facts; and I think that the duty which the law casts on a person using the shed under such a permission, is also accurately stated in the declaration in this case, and it is to take reasonable care that no damage or injury should be occasioned by the use thereof by him and his servants. The question in the cause is, whether on the facts there was evidence which justified the jury in finding a breach of that duty. Their finding is, that "the fire was caused by the negligence of the defendant's servant in using the shed." It is not disputed that there was ample evidence that the fire was caused by the negligence of Davies in lighting his pipe, nor that there was sufficient evidence that Davies was employed by the defendant to use the shed as a carpenter, so that the relation of master and servant existed between them. Now the general rule of law is clear, that where the relation of master and servant exists between one directing a thing to be done and those employed to do it, the master is considered in law to do it himself, and, as a consequence, that the master is responsible not only for the consequences of the thing which he directed to be done, but also for the consequences of any negligence of his servants in the course of the employment, though the master was no party to such negligence, and even did his best to prevent it; as in the

4

ordinary case where a master, selecting a coachman, believed to be sober, sends him out with orders to drive quietly, and the coachman gets drunk and drives furiously. In such a case it may seem hard that the master should be responsible, yet he, no doubt, is, if he be his master, within the definition stated by Parke, B., in Quarman v. Barnett (6 M. & W. 499, 509), that the person is liable, "who stood in relation of master to the wrongdoer-he who had selected him as his servant, from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey." B the master is not liable for any negligence or tort of the servant which is not in the course of the emphy ment, for such negligence or tort cannot be cons dered as in any way the act of the master. In the present case the difficulty is to apply these rules t the facts. It is said that Davies, the servant, was not employed by his master to smoke or light his pipe, an that is, no doubt, true; but the act of lighting app was in itself a harmless act; it only became neglige and a breach of duty towards the plaintiff, beca it was done when using his shed, and working ther amongst inflammable materials. Had the action beca brought against Davies himself, it could not hare been maintained for merely lighting his pipe, ba that, under the circumstances, would have beeterdence that he failed to take reasonable care who using the plaintiff's shed and working there, wh would have been the true ground of action. The se tion would have lain against Davies personally fer negligence in doing that very thing which he was en ployed by the defendant to do as his servant, not otherwise. It sems to me, therefore, that it wa negligence in the course of his employment such as to be in law the negligence of his master, the defendant The point is not one admitting of being elucidated by argument or by decided cases; in truth, the whole cas depends upon whether this is a correct statement of the effect of the facts. I feel, as the Court below did, the it is a nice and puzzling question, but, in the vie take of it, I think the judgment should be reversed

KEATING, J., delivered the judgment of hins and the other learned judges.-In this case we a of opinion that the judgment of the Court of Ex chequer should be affirmed. The facts are few The plaintiff having sold some boards to the de fendant, allowed him to have them made into a signboard in one of three sheds belonging to Li and the defendant employed a carpenter named Ivies to do the job. Whilst Davies was at work in the shed making the signboard, a stranger (ie a person not employed by the plaintiff or defenda or having any business in the shed) came in, fi his pipe with tobacco, and at the request of De vies gave him sufficient tobacco to fill his pipe: stranger then struck a match, with which he ligh his own pipe, and Davies, having lighted a shaving the flame of the match, after lighting his pipe with put it down, or let it fall negligently, and in endes vouring to kick away the shavings from the fire k the fire into the shavings, and three sheds of the pla tiff were consumed. The jury found that the fire ** caused by the negligence of the defendant's servast and gave a verdict for the plaintiff for the value the three sheds. Upon these facts, the question stat for the opinion of this Court is, "Whether the act smoking and lighting the shaving whilst empl under the circumstances hereinbefore stated, is for which the defendant is liable ?" and it seems to me he is not. We are, I believe, all agreed that there was no demise, nor anything in the nature of, or analog to, the bailment of the shed by the plaintiff to the d fendant, but a mere license to the defendant to use it y

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his servants, for the purpose of making the signboard. The question is, whether the defendant can be liable for the damage occasioned by the act of Davies, who, for this purpose, must be taken to have been his servant? That the master is liable for the negligence of his servant in the course of his employment admits of no doubt, and if it could be said that the act of lighting a pipe of tobacco, for the purpose of smoking it, was in any way connected with the making of the signboard, which alone Davies was employed by the defendant to do, there would be no difficulty in saying the master would be liable; but I can see no such connexion. It was not necessary that he should smoke in order to make the signboard, nor was the act of lighting the pipe in any way whatever for the benefit of his master, or in furtherance of the object of his employment. (Turberville v. Stampe, 1 Ld. Raym. 264). It is said he was negligent whilst using the shed, and that in a ense is true. It seems to me, however, that, in order o make the master liable, the servant must not only ave been negligent in using the shed, but in using it or the purpose of his master, and in the course of his mployment. He was only licensed to use the shed or the purpose of making the signboard, and when he sed it for other purposes, and those purposes excluively his own, his license was at an end, and he beame an independent wrongdoer. The act of lighting pipe for the purpose of smoking tobacco may, under ertain circumstances, be a harmless act, but in this ase the facts shew it was highly dangerous, which, owever, in my view, is only important, as making it 1ore difficult to connect it with the act of making the ignboard, and less likely to have been in furtherance f the master's business. If instead of bringing into he shed tobacco and matches, the stranger had brought 1 squibs or matches without tobacco, and instead of musing themselves by smoking they had diverted hemselves with setting fire to the squib or matches, nd Davies had carelessly thrown down or let fall a quib or a match, and so caused the fire, could it be id that the master would be liable as for an act done the course of the employment? I cannot bring yself to think so, and yet the pastime of smoking, though more frequently indulged in by workmen than at of firing squibs or matches, is nevertheless not the 88 a pastime, and equally unconnected with making signboard. If, indeed, the defendant had known that Javies was in the habit of smoking on such occasions, nd took no precautions against his doing so in the laintiff's shed, he might, perhaps, have been made liale in another form; but here there is not only no evience of anything of the sort, but it would seem the act f lighting the pipe was owing to the mere accident of eing supplied by a stranger with tobacco for the purose of smoking. Nor am I able to perceive any anagy between this case and that put in the argument, f the drunken coachman, who drives his master's carage and horses so as to cause damage. It is true the laster does not authorise the servant to get drunk, nor oes any master authorise this negligence in a servant or which he is sought to be made liable. The question as to the employment (see per Maule, J., in Mitchell Crassneller, 13 C. B. 243); the fitness of the agent is lways at the risk of the master. If, as was said in he Court below, the damage had been sustained by the oiling over of the glue pot, the defendant would, erhaps, have been liable; certainly not the less so had been caused by Davies taking too much beer. It eems to me, therefore, in this case, which is one of icety and difficuly, that the Court of Exchequer was ight, and that their judgment ought to be affirmed.udgment affirmed.

torneys-for the appellant, Hacon; for the respondent,

Rowland.

No. 566, VOL. XI., NEW SERIES.

COURT OF CHANCERY.

MATHERS v. GREEN.-July 13, 14, and 15, and Nov. 4. Patent-Joint grantee.

Where letters-patent, in the usual form, are granted to two

or more persons, any one of them may use the invention for his own benefit without the consent of the others. Quare, whether the same principle applies to the granting of licenses under the patent? Observations on In re Russell's Patent (2 De G. & J. 130).

This was an appeal from a decision of the Master of the Rolls, in a suit instituted to determine the rights of one of three joint patentees.

This

The defendant Thomas Green, the father of the other defendant Willoughby Green, had for many years carried on the business of a manufacturing engineer, at the Smithfield Iron Works in Leeds, and had obtained a considerable reputation for the manufacture of lawn mowing machines and garden rollers. He had also a branch establishment in London, at No. 2, Victoria-street, Holborn, for the sale of mowing machines and rollers, consigned from Leeds. establishment was managed by Willoughby Green; and it appeared, that during his management the lawn mowing machines were invoiced to him at 30, and the garden rollers at 25, per cent. below the selling prices; and it was agreed that Willoughby Green should have the benefit of any profits which arose from the goods thus consigned at reduced cost price. In June, 1859, Thomas Green took out a patent for "improvements in mowing machines." In September, 1861, Willoughby Green quitted London, went to live at Leeds, and was subsequently, in January, 1863, admitted into partnership with his father.

The plaintiff Robert Mather was a mechanical engineer, employed by various manufacturers to examine their machinery and suggest improvements. On the 5th September, 1861, the plaintiff went to Leeds to superintend the works of Messrs. Green, and to suggest improvements in the construction of their lawn mowing machines; and in the latter part of that year he invented some alterations in their construction, whereby they were greatly improved. In order to secure these inventions, two patents were taken out in the joint names of Thomas and Willoughby Green and of Robert Mathers. The first letterspatent, which were dated the 20th December, 1861, were for " improvements in lawn mowing, rolling, and collecting machines;" the second, dated the 31st December, 1861, were for "improvements in chains, giving motion to chain wheels." Each of these letters-patent gave unto "Thomas Green, Willoughby Green, and Robert Mathers, their executors, administrators, and assigns," license "that they, the said Thomas Green, Willoughby Green, and Robert Mathers, their executors, administrators, and assigns, and every of them, by themselves or by their deputy or deputies, servants, or agents, or such others as they, the said Thomas Green, Willoughby Green, and Robert Mathers, their executors, administrators, or assigns, should at any time agree with, and no others, from time to time," might use and vend the said invention.

The plaintiff remained in the service of Mr. Green, at Leeds, until the 25th March, 1862, when he went to London to conduct the business of the branch establishment, which, after the departure of Mr. Willoughby Green had been managed by C. F. Johnson, formerly a clerk in Mr. Green's service. In December, 1862, disputes arose between the plaintiff and defendants, and the defendants, who were then partners, on the 21st January, 1863, took possession of the branch establishment in London, and of the stock-in-trade

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therein, and gave notice to persons indebted for goods furnished to them by the plaintiff not to make any payments to him. The plaintiff then filed the present bill, and sought relief on two distinct grounds.

On the first branch of the case, the plaintiff by his bill alleged that he was interested, jointly and equally, with the defendants in the patents of the 20th and 31st December, 1861; that the defendants had made profits by the manufacture and sale of machines manufactured by them according to the inventions thus patented, and had received money by way of royalty from the Messrs. Cookey, to whom a license had been granted to use the inventions or one of them; and the bill prayed a declaration that the plaintiff was entitled to share equally with the defendants in the profits of the articles manufactured or sold by the plaintiffs under the same patents, and in all royalties received by them under the said license.

The second branch of relief sought related to the profits made by the sale of lawn mowing machines, rollers, and other machines, from the 25th March, 1862, to the 21st January, 1863, at No. 2, Victoriastreet, Holborn. The bill alleged that this business, though carried on during that period in the name of the defendant Thomas Green, was in truth the business of the plaintiff, the goods there sold having been all purchased by him of the defendants, or one of them, and sold on his own account, though the trade continued to be carried on in the name of Thomas Green; and the bill prayed the necessary accounts and relief founded on this state of facts.

On the first branch of the case the defendants insisted that the patents, though granted to the three jointly, belonged solely to the defendant Thomas Green, who had paid all the costs of obtaining them, and that this had been acknowledged by the plaintiff. With regard to the second part of the case, the defendants denied that the business in London had ever ceased to be the business of Thomas Green, and insisted that during the period in question the plaintiff was managing it as the servant of Thomas Green.

The evidence was conflicting, but the view which his Lordship took of the case renders it unnecessary that it should be reported.

The cause came on to be heard before the Master of the Rolls, who, by his decree, delivered on the 14th February, declared on the first question, that the plaintiff was entitled to one-third share of the letters-patent in question, and to one-third share of the profits arising from the use of the invention patented subsequently to the 21st January, 1863, and also to one-third part of all money which had arisen from licenses granted under the patents. As to the second question, his Honor came to the conclusion that the plaintiff had failed to make out that he was trading on his own account; but considering that the evidence shewed an intention on the part of Mr. Green to remunerate the plaintiff, by allowing him the same discounts as were allowed to Willoughby Green during his management of the London business, his Honor declared the plaintiff entitled to a commission of 30 per cent. on the selling price of the mowing machines, and of 25 per cent. on the like price of the garden rollers sold by him for the defendants, whilst he managed the London business; and directed the accounts consequent on this declaration.

The Messrs. Green then presented their petition for a rehearing.

Southgate, Q. C., and Kingdon, for the plaintiff, referred to Hancock v. Bewley (Johns. 601); M'Mahon v. Burchell (2 Ph. 127); Henderson v. Eason (17 Q. B. 701; 16 Jur. 518); Leake v. Cordeaux (4 Weekly Rep. 806); Jeffreys v. Boosey (4 H. L. C. 815); and stat. 15 & 16 Vict. c. 83, s. 35.

Selwyn, Q. C., and Phear, for the defendants, comtended, that all the plaintiff was entitled to was to make and sell the subject of the patents, on his or account. [They cited In re Russell's Patent (2 De G. & J. 130).]

Southgate, Q. C., in reply.

Nov. 4.-Lord CRANWORTH, L. C.-As to the fir branch of relief sought by the will, there is conflicting evidence, on which the Master of the Rolls decided i favour of the plaintiff. In the view I take of the case, it is not necessary that I should come to ar positive decision as to whether the plaintiff had a b neficial interest in these patents; but the inclinates of my opinion is in conformity with the view tak by his Honor. Perhaps I ought rather to say, that whatever the truth may be, I incline to think there a no sufficient evidence to rebut the primâ facie pro sumption arising from the fact, that the letters-pater were granted to three. Where such a grant has beca made to two or more as joint inventors, it is da gerous for any Court to allow one of the grantees ta set up a title against the others, founded on ma parol evidence, or inference from doubtful condat The grantee who in such a case claims an excuse right, ought to obtain written evidence on the subjet: and if, by omitting to take this precaution, he is put t a loss, he has only himself to blame. But in the ysent case, I do not feel it incumbent on me to p nounce a positive opinion as to whether the plaints was or was not beneficially interested in the pata for even if he was, he did not, in my opinion, becoma thereby entitled to any relief in this suit.

The Master of the Rolls, by his decree, has declared that the plaintiff is entitled to one-third share of the letters-patent, and to one-third share of the prof arising from the use of the invention patented sub quently to the 21st January, 1863, and also to third part of all money which has arisen from licens granted under the patents. With great deference the Master of the Rolls, I do not think he is entit to any part of this relief. With respect to money ceived from the royalties, the defendants deny th they have received anything, and this is not me any evidence on the part of the plaintiff, though would have been easy for him to have done so: the only license alleged by him to have been graniel is one to certain gentlemen trading under the firme Cookey & Co., who must have been able to prove pr ment by them on account of royalty to the defendum if any such payment had been made. The case, the fore, comes to this-Is the plaintiff entitled to rele the score that the defendants have made profit by the patented inventions in the manufacture and of their own goods? I think not. The letters-pat grant to the three, their executors, administrators, assigns; that they, and every of them, by themsel their servants and agents, or such other as they agree with, and no others, shall for the term of fo teen years use, exercise, and vend the said inventin The right conferred is a right to exclude all the wo other than the grantees from using the invention But there is no exclusion in the letters-patent of one of the patentees. The inability of any one of t patentees to use the invention, if any such inah exists, must be sought elsewhere than from the lett patent. But there is no principle, in the absence contract, which can prevent any person not prohiba by statute from using any invention whatever. there, then, any implied contract, where two or persons jointly obtain letters-patent, that no on them shall use the invention without the consente the others; or if he does, that he shall use it for the joint benefit? I can discover no principle for such doctrine. It would enable one of two patentees either