In Jones v. Scullard (h) the defendant, who owned a brougham, horse, and harness, which he kept at a liverystable, was in the habit of being driven by a servant of the livery-stable keeper. While the brougham was being drawn by the defendant's horse, the driver through his negligence lost control of the horse, which damaged the plaintiff's shop-window. The driver had been driving the brougham continuously for six weeks, and was wearing a suit of livery supplied by the defendant; but was imperfectly acquainted with the horse, which had been recently purchased. It was held on these facts by Russell, C. J., that there was evidence to go to the jury that the driver was acting at the time of the accident as the defendant's servant.

(iv) Sub-contracts give rise to difficulties. The contractor may employ one set of men, the sub-contractor another; and yet for certain purposes both sets of men may be regarded as in the employment of the contractor. Suppose that A., an employer, contracts with B., another employer, for the performance of certain work by B.; A. exercising over B. or his workmen no control-the state of things proved in Abraham v. Reynolds (i). In this case A. was at common law (subject to certain exceptions) not liable for the acts of the servants of B. (j).

In some of the early cases of sub-contracts and joint operations there was a tendency to regard the servants of A. and B. as being in a common employment (k). The decision of the House of Lords in Lindsay v. Johnson (1) has put the law on that point on a proper basis. In that case H. contracted to build a block of artisans' dwellings in accordance with specifications, which provided for fireproof roofs, &c. being supplied by L. The plaintiff, a workman paid by H., was injured by the negligence of a

308; Hedley v. Pinkney, &c., [1894] A. C. 222; Waldock v. Winfield, [1901] 2 K. B. 596; The Louise (1902), 18 Times L. R. 19; Mileham v. Borough of Marylebone and Latter (1903), 67 J. P. 110. Moore v. Palmer (1886), 51 J. P. 196 (C. A.), as reported, seems quite irreconcileable with Donovan v. Laing. The facts of the two cases are identical; the decisions in direct conflict.

(h) [1898] 2 Q. B. 565; followed in Dewar v. Tasker (C. A.) (1907), 23 Times L. R. 259; and Perkins v. Stead, Ibid.

433. For the purposes of the Workmen's Compensation Act, 1906, the lender or letter-out of the servant is the employer: see sect. 13.

(i) (1860), 5 H. & N. 143.

(j) See Chap. XXIV. infra. For the purposes of the Workmen's Compensation Act, 1906, a sub-contractor's workmen are treated as in the employment of the "principal": sect. 4.

(k) See Woodhead v. Gartness Imperial Co. (1877), 4 Sc. Sess. Cas. (4th Ser.) 469. (7) [1891] A. C. 371.

servant in the employment of L. The House of Lords held that the two servants were not in a common employment. Lord Herschell there says (p. 377):

Unless the person sought to be rendered liable for the negligence of his servant can show that the person so seeking to make him liable was himself in his service, the defence of common employment is not open to him.

Lord Watson puts the same point thus (p. 382) :—

I can well conceive that the general servant of A. might, by working towards a common end along with the servants of B., and submitting himself to the control and orders of B., become pro hac vice B.'s servant in such sense as not only to disable him from recovering from B. for injuries sustained through the fault of B.'s proper servants, but to exclude the liability of A. for injury occasioned by his fault to B.'s own workmen. In order to produce that result, the circumstances must, in my opinion, be such as to show conclusively that the servant submitted himself to the control of another person than his proper master, and either expressly or impliedly consented to accept that other person as his master for the purposes of the common employment.

(v) There may be sub-contracts similar to the above, except that A. has under the contract certain rights of control over B. or B.'s workmen. Sometimes the rights of A. are so large that it is clear that the servants of B. are, for purposes of liability, servants of A.; sometimes the extent of the right of interference is such that it is doubtful whether the relation is that of master and servant. In Hardaker v. Idle District Council (m), where the contract required the contractor to pay attention to "any directions or instructions" of the inspector of the council, and empowered the inspector to dismiss men, Rigby, L. J., differing from Lindley and Smith, L. JJ., thought that the contractor and his men were in law the servants of the council. Again, there may be a power of dismissal of the contractor's servants without any real control (n). In Penny v. Wimbledon Urban Council (o) the defendants employed I, a contractor, to execute work according to the instructions of the defendants' surveyor. The defendants, as having control of the works, were held liable for the negligence of I.'s workmen.

(m) [1896] 1 Q. B. 335.

(n) See Reedie v. London & North Western

Rail. Co. (1849), 4 Ex. 244.

(0) [1898] 2 Q. B. 265.

From the cases are deducible two conclusions:-(1) That a servant X. of A. will be viewed as the servant of B., if B. exercises control over X.; (2) that as between X. and the other servants of B., he will not be treated as a fellow-servant, unless there is a common master.

In the older cases determining liability, stress was laid on the question: Who selected the alleged servant? Now-a-days the decisive question is: Who controlled the servant ? The test, however, is ambiguous: it may mean "who in fact controlled," or "who had a right to control." Sometimes the authorities use the test in one sense, sometimes in another. X., the general servant of A., is lent to B.; A. paying his wages and retaining the right to dismiss him. So long as B. or his agent in fact gives orders to X., and X. agrees to obey them, B. is his master, and, apart from questions of common employment, is liable for X.'s wrongful acts. But if there is no privity between X. and B., in what sense is X. under B.'s control? Suppose that X., preferring to work in his own way, refuses to obey B.'s orders, can the latter be said to control the former? Control implies the right to give commands and to dismiss if they are not obeyed. B. can do nothing he cannot dismiss X. or stop his wages; he can merely complain to A.

If a man lets out a carriage on hire to another, he in no sense places the coachman under the control of the hirer, except that the latter may indicate the destination to which he wishes to be driven. The coachman does not become the servant of the person he is driving, and if the coachman acts wrongly, the hirer can only complain to the owner of the carriage (p).

In the case in which these remarks were made (p), the hirers had no rights as to the servant except that of complaining; and yet they were held liable, doubtless on the ground that the hirers gave and the servant in fact obeyed orders. It is submitted that, if there is no control or right to control, the relation of master and servant does not exist; and liability, if it exist, must be based on other grounds. What are they?

In the absence of evidence of negligence on the part of B. or his servants, it is submitted that B. is in the position of the defendant in the carriage-hiring cases (q), viz., he is not liable,

(p) Donovan v. Laing, &c., [1893] 1 Q. B., per Bowen, L. J., at p. 634.

(q) Laugher v. Pointer (1826), 5 B. & C. 547; Quarman v. Burnett (1840), 6 M. & N. 499.

unless he has "actively interfered" with X., and has so become "the procurer of the wrongful act complained of " (r).

If there has been negligence on the part of B. or his servants, the test of liability is the same as in Engelhart v. Farrant (s); viz., was the negligence of B. or B.'s servants the "effective cause of the damage? And that is a question of fact.

If A. lends to B. an incompetent servant, or a servant in charge of a machine which is defective owing to his own or his servant's negligence, A. will, possibly, be liable to any one injured thereby (t) : though the nature of the defect, and the circumstances in which B. failed to detect it, might supply evidence of negligence, which would fix B., primarily at least, with liability (u).

One may be for some purposes a servant, and for others not. A prima donna, engaged to sing so many nights, would not be for all purposes a servant; obviously she would not, for example, be a "servant" within the meaning of sect. 68 of the Larceny Act, 1861; nor would she be bound to sing as the manager chose to direct. Yet she is so far regarded as a servant, that an action will lie for enticing her away from her employment (x).

To take another example of the same difficulty, a person may not have been properly appointed a servant of a banking or other company, and he could not fairly contend, as a regularly appointed servant could, that he was entitled to a certain notice before being discharged; but if he were suffered to act as cashier, manager, or otherwise, the company would not be permitted to disclaim responsibility for his acts (y).

Subsequently it will be pointed out that for some purposes a

(r) Donovan v. Laing, &c., [1893] 1 Q. B., per Bowen, L. J., at p. 634. But is A. liable? X. was not, at the time of the wrongful act, engaged on A.'s work, save in a very indirect sense; nor was he under A.'s physical control. It would appear on authority that he is liable: see Rex v. Ivinghoe, Botts. 293; Chilcot v. Bromley (1800), 12 Ves. 114; Holmes v. Onion (1857), 2 C. B. N. S. 790; Waldock v. Winfield, [1901] 2 K. B. 596. The latter case was decided on the special contract, but there are dicta to the effect that the presumption as to "control" is against the lender of the servant: " In every case in which a person has been held to be in control of a servant, who for general purposes was servant of some one else, there has been some fact or clause of an agreement which led to that conclusion"

(per Vaughan Williams, L. J., at p. 603).

(8) [1897] 1 Q. B. 240. In that case T., who did the wrongful act that caused the damage, was, for the purposes of that act, a stranger to the defendant.

(t) See Donovan v. Laing, &c., [1893] 1 Q. B., per Esher, M. R., at p. 632.

(u) B. would probably have a right of action over against A.: see Mowbray v. Merryweather, [1895] 1 Q. B. 857.

(x) Lumley v. Gye (1853), 2 E. & B. 216. Compare the remarks of Lord Westbury in Knox v. Gye (1872), L. R. 5 H. L. 675, as to a similar ambiguity in "trustee.

(y) Bank of United States v. Dandridge, 2 Wheaton, 64. See also R. v. Beacall (1824), 1 C. & P. 457; Re County Assurance Co. (1870), L. R. 5 Ch. 288; and Brice on Ultra Vires, 644.

volunteer is treated as a servant (z). In the chapters relating to masters' liabilities for the acts of servants, it will be seen that those who de facto perform work for another, though not under any agreement, will be treated as servants (a). This has long been recognised. "A wife, a friend, a relation, that use to transact business for a man," says Blackstone," are quoad hoc his servants" (a). In other words, though the relation of master and servant does not strictly exist, they may bind him as his agents within the scope of their authority.

A third person engaged by a servant to act in his master's business in circumstances of necessity may make that servant's master liable for his torts. But the necessity must be proved to establish the servant's authority to engage the third person (b); and there is much force in Lord Esher's contention (c) that the doctrine of authority by necessity is in English law confined to a few exceptional cases.

Services are frequently rendered in circumstances which leave it uncertain whether they are done in virtue of an implied contract or out of affection and gratitude. A person goes to stay with a relative and does work for him. A boy is taken into a household out of charity and assists his benefactor. A person does work for another, who has promised or is expected to leave him a legacy (d). It is not easy to say in such cases whether or not there was an implied contract of hiring and service. It matters not that no words on the subject passed; if the understanding be that one is to do work for another and subject to his orders, the relation of master and servant will exist. Often it is not easy to know whether the parties meant or understood what they did not in fact express, or expressed what they did not really mean. In the many cases which have arisen with respect to persons alleged to be "clerks or servants" within the meaning of sect. 68 of the Larceny Act, 1861, the difficulty has been chiefly one of fact;

(2) Page 289, infra; Booth v. Mister (1835), 7 C. & P. 66 (plaintiff's carriage injured by defendant's team; at time of injury the team driven not by servant of defendant, but by person to whom defendant had intrusted the reins: defendant liable). In Marrow v. Flimby, fc., [1898] 2 Q. B. 588, Rigby, L. J. (at p. 602) suggests that it is volunteers who are aimed at by the words who works under a contract with an employer," in sect. 10 of the Em

ployers and Workmen Act, 1875: Vaughan Williams, L. J. (at p. 608), thinks they were intended to cover the case of apprentices and butty-men who contract as representing the men." (a) Com. 1, 418.

(b) Gwilliam v. Twist, [1895] 2 Q. B. 84 (C. A.). See the remarks in the judgments in Beard v. London General Omnibus Co., [1900] 2 Q. B. 530.

(c) Gwilliam v. Twist, 1. c., at p. 87. (d) See Chap. IX.