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as other members of the community (b). Servants are sometimes indicted jointly with their masters for nuisance (c).

In R. v. Knell (d) a compositor was convicted of printing treasonous libel; and in the case which follows (e) there is a dictum by the Lord Chief Justice that "if a servant carries a libel (f) for the purpose of distribution for his master, he certainly is answerable for what he does, though he cannot so much as write or read."

To justify a conviction for making a false entry in an account under the Falsification of Accounts Act, 1875 (38 & 39 Vict. c. 24, s. 1), the account in question must belong to or be in the possession of the employer (g).

(b) See Reg. v. Hughes (1857), 26 L. J. (N. S.) M. C. 202. As to effect of master's order, see p. 228, supra. As to larceny and embezzlement by servants, see 24 & 25 Vict. c. 96, ss. 67, 68, 72, and remarks on p. 10, supra, and note there.

(c) Rex v. Pease (1832), 4 B. & Ad. 30; Reg. v. Betts (1850), 16 Q. B. (N. S.) 1022.

(d) (1728), 1 Barnard. 305.
(e) R. v. Nutt, ibid. 306.

(f) Sci-knowing it to be a libel.
(g) Rex. v. Palin, [1906] 1 K. B. 7.



A MASTER is liable to third persons for his servant's tortious acts done in the course of his employment.

The principle is expressed in the authorities in many ways. For example, it is said, "the master is answerable for the act of his servant, if done by his command, either expressly given or implied" (a); a statement of the law which is open to exception, because, as will be seen, a master may be responsible for acts done contrary to his commands. Sometimes it is said, "the law casts upon the master a liability for the act of his servant in the course of his employment" (b), or the master " is considered as bound to guarantee third persons against all hurt arising from the carelessness of himself, or of those acting under his orders, in the course of his business" (c). Masters, it is also said, are liable for the conduct of their servants when "acting within the scope of their authority or the normal duties of their employment" (d); when "actually engaged on their master's business" (e), or when acting "as their agents" (f), "with their master's authority, and upon their business "(g); "for negligences and omissions of duty of their servant, in all cases within the scope of his employment" (h), "in the ordinary course of business" (i)," in the course of the exercise of their duties" (k), “in the course of the service and for

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stated by the same judge in Bayley v. Manchester, Sheffield & Lincolnshire Rail. Co. (1872), L. R. 7 C. P. 415, 420.

(ƒ) Williams, J., in Patten v. Rea, see note (e).

(g) Cockburn, C. J., in Patten v. Rea (1857), 2 C. B. N. 5. 607.

(h) Story on Agency, s. 423.

(i) Edwards v. London & North-Western Rail. Co. (1870), L. R. 5 C. P. 445.

(k) Walker v. South-Western Rail. Co. (1870), L. R. 5 C. P. 640.

his (the master's) benefit " (1), in the master's business and "within the scope of the probable authority which must be supposed to be given to the servant" (m), " within the scope of the power or confidence reposed in the servant" ("), "in the particular or general employment of a servant" (o); "for all acts done by a servant in the conduct of his employment, and in furtherance of such employment, and for the benefit of his master" (p). All of these expressions are somewhat ambiguous, though they have been elucidated in a long series of decisions. They indicate that different reasons have been given at different times for the rule above stated; and are various modes of expressing the fact that, in the case of masters of servants, the maxim, culpa tenet suos auctores, does not hold good; that this relationship forms an exception to the general rule, that no one is responsible for any conduct but his own; and that masters are answerable to third parties or strangers for the acts of their servants when engaged in or about their business (q).

This liability is not confined to acts of negligence, though they are the torts for which masters are most frequently held responsible. The liability extends to all other torts-for example, to fraud-if committed within the scope of a servant's duties, and even to criminal acts done by the servant in excess of his authority, but in furtherance of the master's interests (r).

But it is for the plaintiff to make out primâ facie that the servant was acting in the course of his employment: therefore where the plaintiff merely proved that the conductor was driving an omnibus in the absence of the driver, and gave no evidence of special authority to do so, the case was held to have been rightly withdrawn from the jury (s).

The rule as to liability for an agent's fraud which is now established is, to quote the words of Willes, J., in Barwick v. The English Joint Stock Bank (t)—an action against a bank for

(1) Willes, J., in Barwick v. English Joint Stock Bank (1867), L. R. 2 Ex. 259.

(m) Bayley, J., in 4.-G. v. Siddon (1830), 1 Tyr. 41.

(n) Mechanics Bank v. The Bank of Columbia, 5 Wheaton, 326.

(0) Mackenzie v. MacLeod (1834), 10 Bing 385.

(P) Per Lopes, L. J., in Dyer v. Munday, [1895] 1 Q. B. 742, 747. The attempt was made to argue Earl v. Lubbock, [1905] 1 K. B 253, on this ground, assuming the existence of a

duty owed by the defendant to the plaintiff had there been any duty owed to the plaintiff, the master and servant point might have been conceded; the decision was that there was no duty owed by the defendant to the plaintiff.

(9) See Appendix B. as to reasons for the rule.

(r) Dyer v. Munday: see note (p); Coppen v. Moore (No. 2), [1898] 2 Q. B.


(s) Beard v. London General Omnibus Co., [1900] 2 Q. B. 530.

(t) (1867), L. R. 2 Ex. 259.

fraudulent misrepresentation on the part of its manager-"that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved." This statement of the law has not been universally or readily acquiesced in, and probably the phrase "for the master's benefit" is superfluous Several judges have been reluctant to admit that the doctrine is true of certain torts, and in particular of fraud. Why should A. be responsible for the false statements of B. which he never in fact authorised, and which may be contrary to his wishes? Fraud without any fraudulent mind. in the person who is made answerable for it, seems nonsensical. "I do not understand legal fraud," said Bramwell, L. J., in Weir v. Bell (u); “to my mind it has no more meaning than legal heat or legal cold, legal light or legal shade." It is, however, too late to question the doctrine stated in Barwick v. English Joint Stock Bank. It is in accordance with a long series of decisions beginning with Hern v. Nichols (r). Mr. Justice Willes's statement of the law has frequently been cited with approval (y); and it has been acted upon more than once by the House of Lords and the Privy Council (). The doctrine may rest upon a fiction; but if so, it is a fiction in accordance with others which are well recognised-the doctrine, for example, that notice to the agent may be notice to the principal, and that a servant's knowledge may sometimes be treated as the master's (a). It is as easy to admit that A., though morally innocent, is legally guilty of fraud through his servant or agent, as it is to admit that A. has been negligent through his servants, when in point of fact he has not been wanting in prudence, and when they have done in their folly that which he in his wisdom forbade.

The rule just stated applies to corporations or companies. It extends to companies or corporations-such as Dock Trusts

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chievous character). Stiles v. Cardiff Steam Navigation Co. (1864), 33 L. J. Q. B. 310. In his criticism of the judgment in Barwick v. The English Joint Stock Bank, Bramwell, L. J., suggests as the true ground," that every person who authorises another to act for him in the making of any contract, undertakes for the absence of fraud in the execution of the authority given." The doctrine of agency, according to which the principal is liable for the acts of the agent incident to his employment, covers both.

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entrusted by the State with the performance of certain duties, although the revenues are not appropriated to the use of the individual corporators, or to that of the corporation itself (b). Companies have been held responsible for creating a nuisance, such as obstructing a highway (c); for publishing by telegram a libel (d); for wrongful arrests or malicious prosecutions (e); for wrongfully detaining bank notes (f); for wrongful assault by their servant(); for reckless driving (); and for infringing a patent (i).

There was a reluctance, especially in the Chancery Courts, to impute to companies the frauds of their directors or servants. How could directors, it was asked, be the agents of the company, their employer, to cheat or deceive? In Re North of England Joint Stock Banking Co., Ex parte Bernard (k), Parker, V.-C., said that they could not be the company's agents for that purpose. So in Dodgson's Case (1), Knight-Bruce, V.-C., said, that "whatever fraud there may be, if fraud there be, it is charged against the directors, who cannot be the agents of the body of shareholders to commit a fraud." Similar expressions were used by Page Wood, V.-C., in Re Athenæum Assurance Co. (m); Romilly, M. R., in Duranty's Case (n); Lord Chelmsford in Re Hull and London Life Assurance Co. (o). In the Western Bank of Scotland v. Addie (p), decided in 1867, Lord Cranworth said:

An attentive consideration of the cases has convinced me that the true principle is, that these large corporate bodies, through whose agencies so large a portion of the business of the country is now carried on, may be made responsible for the frauds of those agents to the extent to which the companies have profited from those frauds; but they cannot be sued as wrong-doers, by imputing to them the misconduct of those whom they have employed.

(b) Mersey Dock Trustees V. Gibbs (1866), L. R. i H. L. 93.

(c) R. v. Great North of England Rail. Co. (1846), 9 Q. B. 315.


(d) Whitfield v. South Eastern Rail. Co. (1858), E. B. & E. 115. See also R. v. City of London, cited in note to Whitfield v. South Eastern Rail. Co. The question whether a corporation can be rendered liable for a libel published on a privileged occasion by proving express malice" in its servant, who published it, was raised but not answered in Nevill v. Fine Arts, &c. Co., [1895] 2 Q. B. 156, 169: but it has been answered affirmatively by the Privy Council in Citizens' Life Assurance Co., Ltd. v. Brown, [1904] A. C. 423. A corporation cannot sue for a libel charging the corporation with corruption: Manor of Manchester v. Williams, [1891] 1 Q. B. 94.

(e) Edwards v. Midland Rail. Co. (1880), L. R. 6 Q. B. D. 287; Cornford v. Carlton Bank, [1899] 1 Q. B. 392.

(f) Yarborough v. Bank of England (1812), 16 East, 6.

(g) Eastern Counties Rail. Co. v. Broom (1851), 6 Ex. 314; Bayley v. Manchester Rail. Co. (1873), L. R. 8 C. P. 148.

(h) Green v. London General Omnibus Co. (1859), 7 C. B. (N. S.) 290.

(i) Betts v. De Vitre (1868), L. R. 3 Ch. 429.

(k) (1852), 5 De G. & Sm. 283.
(7) (1849), 3 De G. & Sm. 85.
(m) (1859), John, 451.
(n) (1858), 26 Beav. 268.
(0) (1858), 2 De G. & J. 275.

(p) L. R. 1 H. L. (Sc.) 145. See the remarks of Lord Lindley upon this decision in Citiz ns' Life Assurance Co. v. Brown, [1904] A. C. 423, 426.

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