to

them. In interpreting certain statutes, particularly those relating to revenue purposes, Courts have disregarded the presumption that a person is criminally liable for no acts but his own, on the ground that, though penal in their consequences, the proceedings were substantially civil; that it was a master's duty to prevent breaches of the law by his servants; or that the statutes would be rendered inoperative if a master were not punished for their acts. It is too late to question the legality of these decisions, however difficult it may be to reconcile some of them with the principle that mens rea is necessary to constitute a criminal offence. The 35 & 36 Vict. c. 94, s. 16, made it an offence for "any licensed person supply any liquor to a constable on duty. It was argued in one case that a licensed victualler ought not to be convicted under this section when liquor was supplied by a servant without his master's knowledge. That was not the view of the Court; it was thought enough that the servant knew (). In the subsequent case of Bosley v. Davies (1), proceedings were taken under sect. 17 of the same Act against a publican as a "licensed person" who "suffered any gambling," &c. The Court decided that actual knowledge of the offence by the master was not necessary; but that there must be some evidence that he connived at what was going on; though evidence that his servant was in charge of the premises and knew what was going on is sufficient (m), for the master in such a case has "delegated his own power to prevent" (n). This interpretation was adopted in Redgate v. Haynes (o), and Bond v. Evans (0).

(k) Mullins v. Collins: see note (o). But see the comments of Coleridge, C. J., on this case in Somerset v. Hart (1884), 12 Q. B. D. 360.

(7) See note (0).

(m) Bond v. Evans (1888), 21 Q. B. D. 249. In Emary v. Nolloth, [1903] 2 K. B. 264, the master himself was in charge of the premises: vide infra at end of note (o).

(n) See Emary v. Nolloth, [1903] 2 K. B. 264, 269.

(0) See below. The following are the chief cases: -MASTER LIABLE. A.-G. v. Stranyforth (1721), Bunb. 97. (The Crown lost duties on wine by mistake of clerk of one of five partners; defendants liable.) A.-G. v. Burgers (1726), Bunb. 223. (Pengelly, C. B., ruled that, if several persons were concerned either in partnership or otherwise, the Crown might come against any one of them for the whole penalty, it (nonpayment of duty) being in the nature of a tort.) Mitchell v. Torup (1766), Par

ker, 227. (Tea imported by sailors without knowledge of owners; ship forfeited.) R. v. Dixon (1814), 4 Camp. 12; see note (b). A.-G. v. Siddon (1830), 1 C. & J. 220; 1 Tyr. 41. (Dealer in tobacco convicted of harbouring and concealing tobacco, which was, in fact, concealed by his servant.) Advocate-General v. Grant (1853), 15 T. 980. (Clerk to a distiller sold a cask of whisky to one who had no licence to sell spirits; sent it to the purchaser with permit obtained for another party; an offence within 2 Will. IV. c. 16, for which employers liable.) Michell v. Brown (1858), 29 L. J. M. C. 53. (Owner of a vessel convicted under 11th sect. of 54 Geo. III. c. 159, which makes it an offence to throw out of any vessel in a navigable river ballast, &c., though owner not on board at the time of the offence.) Howells v. Wynne (1863), 15 C. B. N. S. 3. (Breach of special rule made under Coal Mines Regulation Act, 1860; see now the Act of 1887, 50 & 51 Vict.

Looking at the decisions collected below, all that can be said is that there is a primâ facie improbability against criminal

66

liability in the absence of mens rea; that the Legislature may, nevertheless, for public reasons, impose penalties on those who do not prevent as well as those who commit certain offences; that a construction which would make a statute inoperative is not to be assumed; and that "the general scope of the Act, and the nature of the evils to be avoided" (p) must determine whether a master is chargeable for acts which are unknown to him. Where the word "knowingly," "wilfully" or negligently occurs, knowledge or negligence has of course to be proved: the difficulty arises in the cases in which the question is of implying these terms. Compare, e.g., Cundy v. Lecocq (9) with Somerset v. Hart (r); or Mullins v. Collins (s) and Bond v. Evans (t) with Sherras v. de Rutzen (u) and Massey v. Morriss (r), and it becomes plain that the construction of the statute is controlled by collateral considerations (y). In Sherras v. de Rutzen (u) Wright, J., discusses somewhat fully the question of the necessity of proving mens rea (z).

centre of the disc"; loading done by master; no evidence of owner's knowledge or assent.) Somerset v. Wade, [1894] 1 Q. B. 574. (Permitting drunkenness on premises, 35 & 36 Vict. c. 94, s. 13 (1); no evidence of publican's knowledge or connivance or of servant being in charge.) N.B.-The onus of proof in relation to this offence has been shifted on to the publican by the Licensing Act, 1902, s. 4. Emary v. Nolloth, [1903] 2 K. B. 264. (Intoxicating liquor was knowingly sold to a child under fourteen in a bottle neither corked nor sealed by a licensed person's servant contrary to the express orders and without the knowledge of his master, who was himself in charge of the premises at the time of the sale. - Held, that the licence-holder could not be convicted under sect. 2 of the Intoxicating Liquors (Sale to Children) Act, 1901 (1 Edw. VII. c. 27).) Boyle v. Smith, [1906] 1 K. B. 432. (Respondent, who was licensed to sell by retail, at his brewery, beer for consumption off the premises, employed a drayman to deliver beer to customers. The drayman had no authority to sell any beer for the respondent, his sole duty being to deliver beer to customers only who had previously ordered it, and he had been expressly ordered not to sell or deliver beer to other persons, and to bring back to the brewery any beer which he was unable to deliver. The drayman sold and delivered beer from his van to persons who had not previously ordered

it:-Held, that respondent could not be convicted under sect. 3 of the Licensing Act, 1872, for selling liquor at a place where he was not authorized by his licence to do so.) Dickenson v. Fletcher (1873), L. R. 9 C. P. 1; 43 L. J. M. C. 25. (Breach of rule in Mines Regulation Act, 23 & 24 Vict. c. 151, ss. 10 & 22; see now 50 & 51 Vict. c. 58, ss. 49, 50.) Baker v. Carter (1878), L. R. 3 Ex. D. 132. (Breach of rule in Coal Mines Regulation Act, 1872, s. 51; see now 50 & 51 Vict. c. 58, ss. 49, 50.) See also Hearne v. Garton (1859), 28 L. J. M. C. 216; R. v. Bishop (1880), 5 Q. B. D. 259.

(P) Stephen's History of the Criminal Law, vol. ii., p. 117 (1883 ed.).

(q) (1884), 13 Q. B. D. 207 (sale of liquor to drunken person).

(r) (1884), 12 Q. B. D. 360 (permitting gaming).

(8) (1874), L. R. 9 Q. B. 292 (supplying drink to constable on duty).

(t) (1888), 21 Q. B. D. 249 (permitting gaming).

(u) [1895] 1 Q. B. 918 (supplying drink to constable on duty).

(x) [1894] 2 Q. B. 412 (submerging load-line of ship).

(y) See the attempt to reconcile the cases in Bond v. Evans, ubi. sup. ; and the judgment of Alverstone, C. J., in Emary v. Nolloth, [1903] 2 K. B. 264,

268.

(z) See also on this point Betts v. Armstead (1888), 20 Q. B. D. 771; Budd v. Lucas, [1891] 1 Q. B. 408, remarks

Employers have frequently been held criminally answerable for nuisances committed by their servants. Thus, in R. v. Medley (a), the directors of a gas company were indicted jointly with their servants, who conducted the works, for turning refuse into a stream. Denman, C. J., directed the jury to find the defendants guilty, though they were ignorant of what had been done. Perhaps some of such decisions were given at a time when the difference between criminal and civil responsibility had not been precisely determined. Perhaps, too, they are justified by the fact that proceedings for nuisances are in substance, though not in form, civil.

Under this class of cases may be ranged those of which Gregory v. Piper (b) is a type. That was a case in which a servant, though careful and skilful, could not carry out the orders of his master without doing the mischief which was complained of. A servant was ordered to lay down a quantity of rubbish near the plaintiff's wall and gates -- which could not be done without some of the rubbish touching the wall or gates; the defendant was made answerable for the inevitable or natural consequences of his instructions.

of Pollock, B. and Charles, J. at pp. 412, 413; Kearley v. Tylor (1891), 65 L. T. (N. S.) 261; Derbyshire v. Houliston, [1897] 1 Q. B. 772; Parker v. Alder, [1899] 1 Q. B. 20; Brooks v. Mason, [1902] 2 K. B. 743; AngloAmerican Oil Co., Ltd. v. Manning, [1908] 1 K. B. 536. In this last named case, which turned, as Channell, J., said, on very special circumstances,' an employer had been convicted under the Weights and Measures Act, 1875, s. 25, of having in his possession a measure

which is unjust." It was admitted that mens rea was not an element in the offence. A servant got possession of and used the measure in question in fraud of his employers for his own

fraudulent purposes, and not in the interests of his employers. The Court, applying the principle which governs the civil liability of a master for his servant's torts, beld that in the circumstances the possession of the servant was not the possession of the master, and quashed the conviction.

(a) (1824), 6 C. & P. 292. See also R. v. Stephens (1866), L. R. 1 Q. B. 702. (Owner of works carried on by his agents, indictable for causing nuisance by depositing rubbish in a public navigable river, though the defendant had prohibited the workmen from so depositing the rubbish.)

(b) (1829), 9 B. & C. 591.

CHAPTER XXVI.

MASTER'S LIABILITY TO SERVANTS.

A MASTER is not liable at Common Law to his servants for the acts of fellow-servants done in the course of their employment.

This principle, which, it would appear, is peculiar to English law and kindred systems (a), has been altered by the Employers' Liability Act of 1880, and it does not apply at all to claims under the Workmen's Compensation Act, 1906. Both these statutes are dealt with subsequently (b). But it will be advisable to examine the Common Law which is still in force. The reasons assigned for the exemption above stated are various. Sometimes it is put on the ground of general policy, and on the inexpediency of exposing a master to a multiplicity of actions (c). Sometimes the reason assigned is that a servant does, as an implied part of the contract between himself and his master, take upon himself the natural risks and perils incident to the performance of his services (d); or it is said that the liability of the master for the acts of the servant is an exception which ought not to be extended, and that the servant has no cause of action against his fellow servant because "he has not stipulated for a right of action against his master if he sustains damage from the negligence of a fellow servant" (e). Perhaps the most generally accepted reason is that stated by Shaw, J., in Farwell v. Boston Rail. Co. (ƒ) :—

The implied contract of the master does not extend to indemnify the servant against the negligence of anyone but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does

(a) "La question de responsabilité civile se pose en termes identiques entre patrons et ouvriers et entre étrangers": Le Code Ouvrier, André et Quiberry, p. 250. In 1883 and 1884 MM. Sauzet and Sainctelette raised the point that the origin of the two kinds of liability differed--that the liability to third persons was founded on tort, while that to servants arose out of contract; but it was admitted that the master was liable to the servant for injuries in his

employment.
(b) Pt. ii.

(c) Priestley v. Fowler (1837), 3 M. & W. 1.

(d) Morgan v. Vale of Neath Rail. Co. (1865), L. R. 1 Q. B. 149; per Bowen, L. J., in Thomas v. Quartermaine (1887), 18 Q. B. D. 685, 691, 692.

(e) Bramwell, B., in Swainson v. The North-Eastern Rail. Co. (1878), L. R. 3 Ex. D. 341, 348.

(f) (1842), 4 Met. (Mass.) 49.