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Sharrod v. The London and North-western Railway Company.

present case, the injury occasioned by the act directed by the master could not be avoided by reasonable care on the part of the servant, it is the natural and necessary consequence of the master's act, and for that the master is liable in trespass.

Godson and Huddleston, contra. This is exactly like the ordinary case of an injury done by the driver of a mail coach. There is the governing power of man here; the engine driver puts on the steam and lets it off at pleasure, uses more power in ascending gradients, and puts on the break in descending, just as a coachman uses his whip and reins. The rule is properly laid down in Bac. Abr. " Trespass," A: "The difficulty which has arisen in applying this distinction as to trespass and case has been chiefly in actions for injuries done in driving carriages and navigating vessels. If the carriage or vessel is to be considered as a mere passive instrument not less subservient to the person directing it than a gun or a stick held in his hand, it would follow that all immediate injuries received from its contact while under an individual's direction, whether arising from accident, negligence, or wilfulness, are as much trespasses committed by him as a wound from his gun or a blow from his stick; and it is in this light that such injuries appear to have been regarded by Lord Ellenborough and the Court of Queen's Bench in several cases. On the other hand, some other decisions seem to ascribe something of independent agency to a vessel under sail and a carriage drawn by horses; and it has been held, that an injury received from their contact, if accidental, and not wilful, does not amount to an immediate trespass, but only to a case of consequential damage." The question, therefore, here is, Was there not an independent agency? It may be conceded that if the damage had been occasioned by the defendants' directing a carriage to be run down an inclined plane on which it could not have been stopped, they would have been liable in trespass. But here, as there was a driver to control it, they are only liable in case. Cur. adv. vult.

The judgment of the court' was now delivered by

PARKE, B. We are of opinion, in this case, that an action of trespass will not lie against the company, the defendants. The immediate act which caused the damage to the plaintiff's cattle was the impact of a machine, which was under the control of a rational agent, the servant of the defendants; not so much so indeed as a horse, or carriage drawn by horses, or propelled by mechanical power along an ordinary highway would be, in which cases both the direc tion and the speed of the machine are under government, but still in such a degree as to make the cases similar for the purpose of deciding the present question. We may treat the case, then, as if the damage had been done by an ordinary carriage drawn by horses; and, it being


Sharrod v. The London and North-western Railway Company.


now settled that an action of trespass will lie against a corporation,1 we may consider, for the present purpose, the defendants as one natural person, and the carriage under the care of his servants. Now, the law is well established on the one hand that, whenever the injury done to the plaintiff results from the immediate force of the defendant himself, whether intentionally or not, the plaintiff may bring an action of trespass; on the other, that if the act be that of the servant, and be negligent, not wilful, case is the only remedy against the master. The maxim "qui facit per alium facit per se" renders the master liable for all the negligent acts of the servant in the course of his employment; but that liability does not make the direct act of the servant the direct act of the master. Trespass will not lie against him; case will, in effect, for employing a careless servant, but not trespass, unless, as was said by the court in Morley v. Gaisford, 2 H. Black. 442, the act was done by his command;" that is, unless either the particular act which constitutes the trespass is ordered to be done by the principal, or some act which comprises it, or some act which leads by a physical necessity to the act complained of. The former is the case when one, as servant, is ordered to enter a close to try a right or otherwise; the latter, when such a case occurs as Gregory v. Piper, where the rubbish ordered to be removed from a natural necessity fell on the plaintiff's soil; but, when the act is that of the servant in performing his duty to his master, the rule of law we consider to be, that case is the only remedy against the master, and then only is maintainable when the act is negligent or improper, and this rule applies to all cases where the carriage or cattle of a master is placed in the care and under the management of a servant, a rational agent. The agent's direct act or trespass is not the direct act of the master. Each blow of the whip, whether skilful and careful or not, is not the blow of the master, it is the voluntary act of the servant; nor can it, we think, be reasonably said that all the acts done in the skilful and careful conduct of the carriage are those of the master, for which he is responsible in an action of trespass, to the same extent as if he had given them himself, because he has impliedly ordered them; but those that were careless and unskilful were not, for he has given no order, except to use skill and care.

Our opinion is, that in all cases where a master gives the direction and control over a carriage, or animal, or chattel, to another rational agent, the master is only responsible in an action on the case for want of skill or care of the agent-no more; consequently, this action cannot be supported. We should observe that, though the master in this case is taken to have ordered the driver of the engine to proceed at a great speed, it did not follow as a necessary conse quence that it would impinge on the plaintiff's cattle. It might not have happened if the driver had seen the cattle sooner, or the cattle had heard the engine and got out of the way. The act, therefore, cannot be treated as a trespass, on the ground that it was by neces

1 See The Eastern Counties Railway Company v. Broom, 1 English Reports, 406, (1851,) and note (1) by the editors.

The Attorney General v. Robson.

sary implication ordered to be done by the defendants-the principle on which the case of Gregory v. Piper was decided. This is the simple case of an act done by the servant in the course of his employment, not specifically ordered by the master, and though the injury by such an act be direct so far as relates to the servant, we have recently held, that a master would not be responsible in trespass. Gordon v. Rolt, 4 Exch. Rep. 365; s. c. 18 Law J. Rep. (N. s.) Exch. 432. If, in the present case, the plaintiff's cattle had a right to be on the railway, the plaintiff has a remedy by an action on the case against the company for causing the engine to be driven in such a way as to injure that right; for the defendants were bound to see that their carriages did not travel at such a speed as to make it impossible to avoid other persons who had a lawful right to be there. If the cattle were altogether wrong-doers, there has been no neglect or misconduct for which the defendants are responsible. If the cattle had an excuse for being there, as if they had escaped through defect of fences which the company should have kept up, the cattle were not wrong-doers, though they had no right to be there, and their damage is a consequent damage from the wrong of the defendants in letting their fences be incomplete or out of repair, and may be recovered accordingly in an action on the case.

Rule absolute. 1



Michaelmas Term, November 8, 1850.

Customs Acts, 8 & 9 Vict. c. 87, s. 46 Concerned in


The owner of a vessel, who knowingly lets his vessel that it may be employed in a smug. gling adventure, and the cargo of which is unshipped without the duties being paid, is liable to the penalties, under the 8 & 9 Vict. c. 87, s. 46, as a person "concerned " in the illegal unshipping of the goods.

THIS was an information, under the 8 & 9 Vict. c. 87, s. 46,3 against the defendant as having been concerned in the illegal unshipping of tobacco at Yarmouth.

1 It was also held in Philadelphia, &c. R. R. Co. v. Wilt, 4 Wharton, 143, (1839,) that trespass would not lie against a railroad corporation for an injury to the plaintiff by the defendant's locomotive, whether such injury was wilful or accidental on the 2 20 Law J. Rep. (N. s.) Exch. 188.

part of the servants of the company, unless it appear that the injury was done by the command or with the assent of the corporation; but that the proper remedy for such injury was an action on the case.

3 That section enacts, "That every person who shall, either in the United Kingdom or the Isle of Man, unship or assist or be otherwise concerned in the unshipping of any goods which are prohibited to be imported into the United Kingdom or into the Isle of Man, or the duties for which have not been paid or secured, or who shall knowingly harbor, keep, or conceal, or shall knowingly permit or suffer to be harbored, kept,

The Attorney General v. Robson.

At the trial, before Pollock, C. B., at the sittings in Middlesex, after Trinity term, 1850, it appeared that the defendant was owner of a vessel which he had let for a voyage from Newcastle to Schelling, well knowing that the object of the voyage was to obtain tobacco, and run it at Yarmouth. In order to carry out the plan, the defendant had cleared the vessel at Newcastle as for a voyage to Yarmouth, but the captain sailed direct to Schelling, under the guidance of a pilot put on board by the charterers. The defendant was at Yarmouth when the vessel arrived there, and after the cargo had been run complimented the captain on his skill. The defendant received 2001. for the use of the vessel. Upon this evidence, it was contended, on behalf of the defendant, that he was not guilty of the offence charged; but his lordship overruled the objection, and a verdict was found for the crown, with 8000l. penalties.

Bramwell now moved for a rule for a new trial for misdirection. The defendant was not assistant or concerned in the unshipping of the tobacco, although the purpose for which his vessel had been hired was known to him. He was not present at the time, and took no part in the running of the tobacco.

[Pollock, C. B. Supposing an indictment for conspiracy, could it not have been said that he was an associate in the transaction?

Platt, B. You say he was concerned in shipping, but not in unshipping the cargo.

Alderson, B. Although he may not be strictly an assistant, he was a person "otherwise concerned in the unshipping."]

Per curiam. The direction was right.

Rule refused.

or concealed, any goods which shall have been illegally unshipped without payment of duties, or which shall have been illegally removed without payment of the same, from any warehouse or place of security in which they may have been deposited, or any goods prohibited to be imported, or to be used or consumed in the United Kingdom or in the Isle of Man, and every person, either in the United Kingdom or in the Isle of Man, to whose hands and possession any such prohibited or uncustomed goods shall knowingly come, or who shall assist or be in any wise concerned in the illegal removal of any goods from any warehouse or place of security in which they shall have been deposited as aforesaid, shall forfeit either the treble value thereof, or the penalty of 100%., at the election of the commissioners of her majesty's customs."

Tharratt v. Trevor.


Hilary Term, January 31, 1851.

Costs, Certificate for, under 9 & 10 Vict. c. 95, s. 129- Time for Taxation of Costs.

Under the 9 & 10 Vict. c. 95, s. 129, (the County Court Act,) a judge of a superior court may certify for costs at any time before the costs are taxed.

THIS was a rule calling upon the defendant to show cause why so much of a rule obtained by him for a suggestion to deprive the plaintiff of costs, as related to a stay of proceedings, should not be set aside. It appeared that the action had been brought against the defendant to recover damages on account of his having put an end to a contract without a quarter's notice, and having been tried, before Platt, B., on the 14th of January, the plaintiff obtained a verdict, damages 10. The judge at the trial abstained from certifying under the 9 & 10 Vict. c. 95, s. 129, that the cause was fit to be tried before the superior court, but referred the parties to chambers. On the 21st of January, the defendant served the plaintiff with the rule for a suggestion to deprive the plaintiff of costs, and for a stay of proceedings. The plaintiff. thereupon obtained the present rule, subsequently to which, namely, on the 30th of January, Platt, B., granted a certificate at chambers, entitling the plaintiff to costs.

Knowles, for the defendant, showed cause. The learned judge had no power fourteen days after the trial to grant a certificate giving the plaintiff his costs. The certificate ought to have been granted either at the trial, or at least before the time had elapsed for moving for a new trial. The 129th section of the County Courts Act, 9 & 10 Vict. c. 95, deprives the plaintiff of costs in certain cases, unless the "judge who shall try the cause shall certify on the back of the record, that the action was fit to be brought in such superior court." The judge ought to grant the certificate within a reasonable time; that is, whilst the record is in his power.

[Parke, B. The language of the 22 & 23 Car. 2, c. 9, relating to costs, is nearly the same as that of the act just cited, and in that case the certificate need not be granted at the trial, but must be made within a reasonable time.]

That reasonable time is limited to the four days within which a new trial may be moved for. At all events, the present rule must be discharged on the ground that the defendant's rule was properly drawn up with a stay of proceedings.

Burchell, in support of the rule. First, the judge who tried the cause was not bound to certify at the time of trial. Secondly, the plaintiff is entitled to set aside so much of the defendant's rule as relates to a stay of proceedings.

1 20 Law J. Rep. (N. s.) Exch. 189.

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