tion of the libels q). Evidence of publication by a servant, however, only affords a prima facie presumption of his master's guilt, which he may now rebut by proving that such publication was made without his authority, consent or knowledge, and did not arise from want of due care and caution on his part (r). Again, in the following case, a man was held liable to an Action for action for penalties, through the act of one who was considered penalties. his agent (s). Slade. An election was about to take place at C.; S. was one of Cooper v. the candidates, and in his committee-room the question was discussed whether paying the expenses of bringing up outvoters was legal. S., after referring to a law-book, said it was, but limited it to the payment of expenses out of pocket. A circular had been previously prepared and printed, requesting outvoters to come up and vote for S. Upon S. making this declaration of his opinion, a clerk to an agent of S. (without any express direction from S. or from the agent) wrote at the bottom of each circular, "your railway expenses will be paid." A voter who resided at H., received one of the circulars with this added note; he came to C. and voted for S., and afterwards received 8s., the expenses to which he had bona fide been put by his journey. It was held by the House of Lords, that the words added to the circular must be treated as written by authority of S., and that he was, therefore, liable to the penalties attached to bribery under the Corrupt Practices Prevention Act, 1854 (t). In giving judgment, Lord Wensleydale said, "I take the law to be clear, that a man cannot be guilty by his agent of an illegal act and be held responsible for that act, unless he has given the agent authority, express or implied, to do that illegal act. I know that the law of agency in such cases has been much extended by committees of the House of Commons, but I take it to be a clear proposition of law, that if a man employs an agent for a perfectly legal purpose, and that agent does an illegal act, that act does not affect the principal unless a great deal more is shown: unless it is shown that the principal directed the agent so to act, or really meant he should so act or afterwards ratified the illegal act, or that he appointed one to be his agent to do both legal and illegal acts, to do everything in short which he might think proper to support the interests of the candidate. If the candidate gives his agent such a general authority, and the agent is guilty of bribery, the (q) R. v. Almon, 5 Burr. 2686; R. v. Walter, 3 Esp. 21; R. v. Gutch, M. & M. 433, 438. As to the liability of the editor to indemnify the proprietor when fined for the publication of a libel, see Colburn v. Patmore, 1 Cr. M. & R. 73. It is not necessary, now, in actions, prosecutions or other proceedings for libel contained in a newspaper, to prove that it was purchased of the defendant or his servants, though that course may be (r) 6 & 7 Vict. c. 96, s. 7. (t) 17 & 18 Vict. c. 102. Can- Informations candidate is no doubt responsible for it. I know that there is a very great difference in parliamentary practice upon this subject, but I conceive that the rule of law is as I have laid it down, that no man who is an agent for a legal purpose can make the principal responsible for an illegal act, unless the principal has in some way, directly or indirectly, authorized it, as I have explained." So, also, masters have been frequently held liable to inforfor penalties. mations for penalties incurred by the breach of some statutory regulations by persons in their employ, although the masters themselves may have been perfectly ignorant that in the particular instance any breach of the law has been committed. These informations, it is true, do, in strictness, partake more of the nature of civil proceedings to recover that which is a debt to the crown, than of a criminal proceeding (u), but still they are penal proceedings, and it is conceived therefore that they may be properly mentioned in this place. Perhaps the most familiar instances of the master's liability to this kind of proceeding are to be found in cases, of informations for breach of the revenue laws, in which cases if a master were not held responsible for the acts of his servants, the revenue laws might, as was once (x) (u) See per Bayley, B., in Attorney-General v. Siddon, 1 Cr. & J. 226; and see Atcheson v. Everitt, Cowp. 391, that penal actions are civil suits: and Attorney-General v. Bowman, 2 B. & P. 352, that witnesses to character are not admissible. Previous to 17 & 18 Vict. c. 122, s. 15, it was doubted whether the defendant, in informations for penalties, was admissible as a witness under 14 & 15 Vict. c. 99, Attorney-General v. Radloff, 10 Exc. 84; see now 18 & 19 Vict. c. 96, s. 36. But even now he is not admissible in informations under the Customs Acts. See 20 & 21 Vict. c. 62, s. 14; see also Cattell v. Ireson, 27 L. J., M. C. 107; Attorney-General v. Le Merchant, 2 T. R. 201; Unwin v. Leaper, 1 M. & G. 752, where Bosanquet, J., says, "It has been decided to be an offence to compromise a penal action which had not actually been brought." (x) Attorney-General v. Allen, Exch. Mich. Term, 1850. This criminal liability of a master for the acts of his servant in violating the revenue laws, recently received a forcible illustration in the informations (understood to amount to 120 or upwards) filed against the London Dock Company and the St. Katherine's Dock Company; the alleged severity of which proceeding produced a large meeting of influential merchants, &c., in the City of London, in December, 1851, at which a series of articles (as they were termed ) were agreed upon, as the foundation of a proposed alteration in the law of customs. One of these articles, 7, was as follows: "Merchants, shipowners and others, should not be made responsible for the crimes or offences of their servants or crews, except where guilty knowledge, or the most culpable negligence, is clearly traced home to them." In December, 1852, a deputation from the Committee of London Merchants for Reform of Board of Customs waited on Lord Derby (then Prime Minister), with a memorial containing a series of resolutions, one of which (No. 10) was the same as article 7, above mentioned. And in the following year, by the Customs Consolidation Act, 1853," 16 & 17 Vict. c. 107, s. 213, power was given to the Commissioners of Customs to waive the forfei observed by Pollock, C. B., "be evaded with the utmost facility and impunity, and they would be reduced to a mere dead letter." In an old case in Dyer (y), it appeared that the deputy of a Anon. customer in a creek of a port (in which case a deputy was Dyer. to be made by the statute of the first year of Q. Eliz. c. 12 [c. 11, s. 8]), falsely concealed the custom of a merchant, and the customer himself, ignorant of this, certified by his oath the customs of the port into the exchequer, according to the false information of his deputy, and judgment was given for the Queen against the customer, who was held liable for the forfeiture of the treble value of the merchandize so customed, and to be fined and ransomed according to the statute 3 Hen. 6, c. 3. And in Lane v. Cotton (2), Holt, C. J., after citing the above Lane v. case in Dyer, said, "And what is the reason thereof, but Cotton. because the principal shall answer for his deputy." Siddon. Again, where (a) an excise officer discovered on the defend- Attorneyant's premises a quantity of tobacco, for which he requested to General v. see the permit, and the defendant's servant said he had one, when in fact there was none, and ultimately produced a permit for the removal of different tobacco, and dated after the discovery by the officer, the defendant was held liable to an information for penalties, for harbouring and concealing tobacco without paying duty, although at the time of the discovery he was from home, and had been absent for some time previously. In giving judgment, Bayley, B., said, "This is a case in which to my mind the act of the servant is to be considered as being an act done in the master's business, and within the scope of the authority probably given by the master to the servant. "This is not the ordinary case of a servant selling in his master's shop the articles in which the master deals, in which it is quite clear that he is acting within the ordinary scope of the authority which he has received from his master, and therefore that the act of the servant in making the sale is the master's act; upon which principle all the cases of libel have gone (b). "Neither is this the case of an act done by a servant in the manufacture of articles which the master is himself to manufacture. There the servant is merely acting in the business of the master, and within the scope of the authority which he actually receives from his master. The authority which he receives from his master is an authority to make and manufacture, and the master is responsible for his conduct, primâ facie, as to the means he adopts in making and manufacturing. ture of ships or boats having prohibited goods on board, if satisfied that they were on board without the knowledge or privity of the owner or master of such ship or boat, and without any wilful neglect, or want of reasonable care, on their parts. And similar power is given by "The Supplemental Customs Consoli dation Act, 1855," 18 & 19 Vict. (y) Anon. Dyer, 238 b. (a) 1 Cr. & J. 220; S. C. 1 (b) R. v. Almon, 5 Burr. 2686; R. v. Gutch, M. & M. 433. R. v. Dixon. R. v. Dean. "But this is a case certainly of a different description, and I agree with the distinction that was taken when it was argued, that this does not fall within the ordinary range of the cases of a servant's act being the master's act. But in order to form a judgment whether this is the master's act or not, and within the scope of the authority which ought to be considered as given by the master to the servant, you must look at the nature of the act, and see with what view that act was done, and the participation which the master had in anything to which that act referred. "This is the case of a servant of a fraudulent master endeavouring by his own act to conceal his master's fraud, and to prevent the consequences which would otherwise fall upon the master in respect of that fraud. From the nature of the service in which the party is employed, and from the conduct of the master in his fraud, you may infer whether or no the servant had prima facie an authority from the master; not perhaps specifically for the doing of this specific act, but for the purpose of doing that which, in the exercise of his discretion upon a moment of embarrassment, which the possession of an improper article might naturally create, the servant should think and deem to be best." The learned Baron then went through the facts of the case, which, in his opinion, formed prima facie evidence to show that the act of the servant was the act of the master, though, said he, "The master was certainly at liberty to have produced evidence for the purpose of rebutting that prima facie case, but in the absence of any evidence to rebut that case, it was rightly left to the jury, and the jury were bound to consider it as being the master's act." So, where (c) a statute (d) for regulating the making of bread, enacted, that if any of the loaves authorized by that act to be made, should have in them any alum, &c., every person offending therein " should be liable to certain penalties: it was held, that a master baker was liable to an indictment for supplying loaves containing lumps of crude alum, though his foreman proved that he was the person who made the bread. And where a statute (e) imposed a penalty on every person who should be concerned in the unshipping of any goods, the duties for which had not been paid, it was held (f) that each partner (g) of a firm, whose clerk had been guilty of a fraud by altering the blue book at the Custom House, (in which the amount of goods was entered for duty,) was liable to the penalty incurred through the act of their clerk, as they derived a benefit from his fraud, and produced no evidence to rebut the prima facie evidence of knowledge on their part which arose from that circumstance. (c) R. v. Dixon, 4 Camp. 12; S. C. 3 M. & S. 11; and see R. v. Bradley, 10 Mod. 156. (d) 36 Geo. 3, c. 22. (e) 3 & 4 Will. 4, c. 53, s. 44. 39. (g) It would have been otherwise had the penalty been attached to each offence, and not to each party concerned, ibid.; and see R. v. Clerk, Cowp. 610. for nui sances. Again, masters are liable to indictments for public nui- Indictments sances (h), such as carrying on offensive trades, committed by their servants, although their masters have nothing to do personally with the nuisance complained of. In such cases, also, if a master could shield himself from criminal responsibility on the ground that he personally had nothing to do with the carrying on the trade, the real offender might escape with impunity, and the public grievance remain unredressed. It has indeed scarcely ever been contended, that the master, in such cases, was not guilty on the ground that the nuisance was perpetrated through the agency of others (i); and where that objection has been taken, it has been speedily overruled. Thus, in Rex v. Medley (k), the chairman, deputy chairman R. v. Medley. and other directors of a gas company, and several persons employed by them in carrying on the works, were jointly indicted for a nuisance occasioned by conveying the refuse of the gas, &c. into the river Thames, whereby fish were destroyed, and the water rendered unfit to drink. On the part of the defendants it was contended that the directors of the company were not liable, as no criminal participation on their part, in the acts done by their workmen, was shown, and they did not even know what was done. But they were found guilty and fined, Lord Denman, C. J., saying it made no difference, that the directors were ignorant of what had been done, provided they gave authority to the manager to conduct the works. seems to me both common sense and law, that if persons for their own advantage employ servants to conduct works, they must be answerable for what is done by those servants." "It And again, where a railway company (7) was indicted for cut- R. v. Great ting through and obstructing a highway by works performed North of England in a course not conformable to the powers conferred by the Act Railway of Parliament; and one of the grounds on which it was argued Company. that the company was not liable to an indictment for a misfeasance committed by their servants was that the individuals doing the act might be indicted and punished. Lord Denman said: "We are told that this remedy is not required because the individuals who concur in voting the order, or in executing the work, may be made answerable for it by criminal proceed (h) In Turberville v. Stampe, 1 Lord Raym. 264, Holt, C. J., said, "If my servant throws dirt into the highway, I am indictable." See 1 Bl. Comm. 431; 2 Noy's Maxims, c. 44; Hall's Case, 1 Mod. 76; R. v. Cross, 3 Camp. 224; Bush v. Steinman, 1 B. & P. 407; Reedie v. London and North-Western Railway Company, 4 Exc. 244. (i) See R. v. Pedly, 1 A. & E. 822, where a landlord was held liable to be indicted for a nuisance committed by his tenants, such nuisance being the inevit able result of the occupation, (k) 6 C. & P. 292. (1) R. v. Great North of England Railway Company, 9 Q. B. 315. In R. v. Pease, 4 B. & Ad. 30, some of the members of a railway company were indicted together with their servants for a nuisance occasioned by the railway; and see R. v. Scott, 3 Q. B. 543. |