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for negligence of driver who, on his return to owner's mews, drove a little way from them to purchase snuff for himself.)

Edwards V. Midland Ry. Co. (1880), 6 Q. B. D. 287. (Action for malicious prosecution lies against a company.) Followed in Cornford v. Carlton Bank, Ltd., [1899] 1 Q. B. 392; and see Citizens' Life Assurance Co. v. Brown, [1904] A. C. 423. (See p. 234, n. (d).)

Furlong v. South London Tramways Co. (1884), 48 J. P. 329. (Plaintiff tendered half-sovereign for fare defendants' conductor, supposing it to be counterfeit, gave plaintiff in charge.)

Bunch v. Great Western Ry. Co. (1886), 13 A. C. 31. (Plaintiff's luggage handed to defendants' porter at 4.20 p.m. for 5 p.m. train on Christmas Eve. Plaintiff went away to meet her husband and take her ticket, returned at 4.30 to platform: the porter and plaintiff's handbag had disappeared.)

Ruddiman v. Smith (1889), 60 L. T. (N. S.) 708. (See p. 238.)'

Smith v. North Metropolitan Tramways Co. (1891), 55 J. P. 630. (See p. 238.)

The Apollo: Little v. Port Talbot Co., [1891] A. C. 499. (See p. 238.)

Ruth v. Surrey Commercial Dock Co. (1891), 8 Times L. R. 116. (Plaintiff employed by contractor, and injured by fall of deal planks which had been improperly loaded. Defendants' foreman admitted that if he saw improper loading he would interfere.)

Dyer v. Munday, [1895] 1 Q. B. 742. (See p. 241.)

Engelhart v. Farrant, [1897] 1 Q. B. 240. (See p. 242.)

Line v. Royal Society for the Prevention of Cruelty to Animals (1902), 18 Times L. R. 634. (Defendants' rules, but not their Act, permitted their inspectors to give flagrant offenders into custody: an inspector acted mistakenly under this rule.)

Jones v. Scullard, [1898] 2 Q. B. 565. (Owner of brougham, horses and harness liable for negligence of a hired coachman.) (See p. 20.)

Abraham v. Bullock (1901), 86 L. T. 796. (Defendant let out brougham,


omnibus to defendant's yard, a quarter of a mile distant. Plaintiff injured by stranger's negligent driving. No evidence of such necessity as authorized defendant's servants to engage stranger to drive.)

Beard v. London General Omnibus Co., [1900] 2 Q. B. 530. (See p. 232.)

Hanson v. Waller, [1901] 1 K. B. 390. (Plaintiff given into custody by defendant's manager on a mistaken charge of theft; the act not reasonably necessary for protection of defendant's property; therefore no implied authority.) See Stevens v. Hinshelwood (1891), 55 J. P. 341.

McDowall v. Great Western Ry. Co., [1903] 2 K. B. 331. (Defendants' servants shunted trucks which, owing to the means they took, would have remained stationary but for the interference of trespassing boys, who released the trucks so that they injured the plaintiff. Defendants' servants' negligence not "effective cause" of injury.)

Sanderson v. Collins, [1904] 1 K. B. 628. (Defendant sent his carriage to be repaired by plaintiff. The plaintiff lent a carriage to defendant to use while the repairs were proceeding. Defendant's coachman, without defendant's knowledge, took the plaintiff's carriage out for his own purposes, and injured it by his negligent driving.)

Cheshire v. Bailey, [1905] 1 K. B. 237. (Plaintiff hired from defendant a brougham, horse and coachman to drive his traveller about with samples of his wares. Defendant knew the traveller would leave the brougham sometimes, with the coachman in charge of the samples. The coachman, by arrangement, drove to meet thieves, who stole the samples.)

Ruben v. Great Fingall Consolidated, &c., [1906] A. C. 439. (See p. 235, supra.)


horse, and coachman to plaintiff to drive plaintiff's commercial traveller. The coachman left the brougham unguarded in traveller's absence, and the goods in the brougham were stolen.)


Baird v. Graham (1852), 14 D. 615. (A master sent his servant with glandered horse to a fair at such a distance that the servant was obliged to put up for the night; action by owner of stable for loss of horses and cattle which defendant's horse had infected with glanders.)

Faulds v. Townsend (1861), 23 D. 437; 33 Jur. 224. (A manufacturing chemist, whose business consisted partly in boiling down the carcases of horses for manure, liable in the full value of a stolen horse, which had been purchased by his servant and used for the above purpose.

Gregory v. Hill (1869), 8 R. 282. (Defendant employed foreman and masons to build a house, and paid them wages; he also entered into a contract with a carpenter for carpenter's work; held that the defendant was liable for injuries to carpenter by the negligence of the masons.)


Philadelphia and Reading Ry. Co. v. Derby (1852), 14 How. 468. (Defendants liable for collision caused by servants disobeying an express order.)

Carman v. Mayor of New York (1862), 14 Abb. 301. (Owner of land employed workmen to cut trees on his own land without employing a competent superintendent, instructing them as to the boundaries; defendant liable for trees of plaintiff which his workmen ignorantly cut down and removed.)


Althorfv. Wolf (1860), 8 Sm. N. Y. 355. (See p. 261, n. (x).)

Chapman v. New York Central Ry. Co. (1865), 33 N. Y. R. 369. (Defendants liable for torts of servants when drunk.)

Lannen v. Albany Gas Light Co. (1871), 44 N. Y. 459. (Defendants,



Linwood v. Hathorn (1817), 19 F. C. 327; I. S. App. 20. (The servants of defendant cut down a tree close to a public road; it fell upon and killed a man; the defendant not liable, he being at the time absent, and having given no authority to cut the tree, nor apparently any authority to cut trees in that locality.)

Waldie v. Duke of Roxburgh (1822), 1 S. 367. (R. obtained an interdict against W. from deepening part of the river Tweed; W.'s servant, in his master's absence, and against his express orders, committed a breach of the interdict; W. not responsible.)


Wright v. Wilcox (1838), 19 Wend. 343. (Master not liable when a servant wilfully threw a lad off a waggon and drove over him.)

Mali v. Lord (1868), 39 N. Y. 381. (Defendant not liable for the act of his superintendent in arresting and searching the plaintiff, on a charge of stealing goods from the defendant.)

Fraser v. Freeman (1871), 43 N. Y. 566. Defendant, under claim of right, endeavoured to force his way, with the aid of his servant, into premises of plaintiff's intestate; servant shot the latter in the struggle; defendant not liable, in the absence of evidence that shot was fired with assent or by direction of defendant.)



informed that gas was escaping in the cellar of a house, sent servant to ascertain where the leak was; the servant lighted a match for this purpose, and an explosion took place; defendants liable.)

Wolfe v. Mersereau (1859), 4 Duer, 473. (No defence that defendant's servant wilfully drove against plaintiff's waggon, if he did so in order to avoid greater peril, which it was the defendant's interest to avoid.)

Railroad Co. v. Hanning (1872), 19 Wal. 649. Contractor agreed to furnish the materials and labour for building a wharf; to do the work under the direction and supervision of the railway company's engineer and to his satisfaction; the company liable for the negligence of the contractor or his servants.)




A MASTER is criminally liable for the acts of his servant done in execution of his express orders.

An act which the master has ordered is for all purposes his. In an early case Foster, J., thus explained the criminal responsibility of a master, who orders his servant to do that which is unlawful:

A. biddeth his servant to hire somebody, no matter whom, to murder B., and furnisheth him with money for that purpose; the servant procureth C., a person whom A. never saw nor heard of, to do it; is not A., who is manifestly the first mover or contriver of the murder, an accessory before the fact?

Answer:-if present, he is a principal, if absent an accessory before the fact (a).


It is, of course, an a fortiori case if the master procure the servant himself to commit the murder. On similar grounds, a baker, who knew that a servant put into bread alum, contrary to 36 Geo. III. c. 22, s. 3, and 37 Geo. III. c. 98, s. 21, was held to be properly indicted for selling bread which contained so much alum as made it injurious to health (b). If the employer makes use of an agent who is ignorant of the criminal character of an act, the former is liable (c); if both are aware that the act which they do is illegal, both are liable (d); and the fact that he was obeying his master's command is no defence to the servant (e). The general principle prevails that a man can be made criminally responsible only for an act which he has himself comImitted or ordered. "Whoever actually commits, or takes part in

(a) Foster, C. C. 125.

(b) R. v. Dixon (1814), 3 M. & S. 11.

(e) Reg. v. Bleasdale (1848), 2 C. & K.


(d) Reg. v. James (1837), 8 C. & P. 131. See p. 228, supra.

(e) Maloney v. Bartley (1812), 3 Camp. 210, 212.


the actual commission of a crime, is a principal in the first degree, whether he is on the spot when the crime is committed or not; and "whoever aids or abets the actual commission of a crime, either at the place where it is committed, or elsewhere, is a principal in the second degree in that crime" (f). Some important exceptions have sprung up. Masters may be criminally liable for libels published by their servants acting within the scope of their employment, even though they are no parties to the publication. The proprietor of a newspaper, for example, may be absent at the time of the publication of a libel; he may be totally ignorant of it, and morally innocent; the editor or other servant may have acted negligently; but at Common Law the proprietor was primâ facie liable. Thus, in R. v. Almon (g) the owner of a book-shop was indicted for the sale of a libellous pamphlet of the nature of which it did not appear that he was aware; and in R. v. Walter (h), decided in 1799, Lord Kenyon ruled that the proprietor of a newspaper was answerable criminally for the acts of his servant though he lived in the country and had nothing to do with the conducting of the newspaper.

This is, however, subject to sect. 7 of 6 & 7 Vict. c. 96, which provides :

Whensoever, upon the trial of any indictment or information for the publication of a libel, under the plea of "not guilty," evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, it shall be competent to such defendant to prove that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part (i).

Criminal Liability of Master under certain Statutes.

There is another class of cases, hard to define, in which masters have been made to answer in criminal or quasi-criminal proceedings, for acts the knowledge of which was not brought home to

(f) Stephen's Digest of Criminal Law (5th ed.), pp. 30 and 31. Of course


master might be guilty of manslaughter through the acts of his servants; e.g. if a druggist employed an unskilful assistant, and customers were thereby poisoned.

(g) (1770), 5 Bur. 2686.

(h) 3 Esp. 21; also R. v. Gutch (1829), Moo. & M. 432.

(i) R. v. Holbrook (1877), 3 Q. B. D. 60; 4 Q. B. D. 42. In this case Lush, J. (ibid. p. 49), instances "public nuisances" as an exception to the rule that innocence of mind is a defence to the master, and cites Reg. v. Stephens (1866), L. R. 1 Q. B. 702,

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