at the persuasion of the clerk drove northward to the clerk's house, near the City Road, and thence to fetch a cask (which the clerk had sold to a cooper in the city), from the house of the clerk's brother-in-law at Barnsbury; and it was while they were driving along the City Road towards Barnsbury that the accident happened to the plaintiff. There was contradictory evidence as to who was in fault; but by consent the only question left to the jury was the amount of damages; and a verdict was directed for the defendant, with leave to move to enter it for the plaintiff for 807., the amount found by the jury, if the Court should be of opinion, on the evidence, that the defendant was liable for the negligence of his servant. A rule having been obtained accordingly, The carman, Prentice, Q.C., and A. L. Smith, shewed cause. when he caused the injury to the plaintiff, was not acting in the employment of the defendant so as to make him liable for the negligence of which it must be assumed on the finding of the jury the carman was guilty. When the carman, yielding to the request of the clerk, drove directly away from his road home, he was no longer driving in the defendant's employment. It being after business hours both the clerk and carman used the cart and horse as their own. The circumstances of the present case are not distinguishable from those in Mitchell v. Crassweller. (1) There, the defendants' carman having finished the business of the day, returned to their shop in Welbeck Street with their horse and cart, and obtained the key of the stable, which was close at hand; but instead of going there at once and putting up the horse, as was his duty, he drove to Euston Square, and on his way back negligently drove over the plaintiff; and it was held that the carman was not at the time engaged in his master's business so as to make him liable. In that case Maule, J., says, "At the time of the accident the servant was not going a roundabout way to the stable, and, as one of the cases expresses it, making a détour. He was not engaged in the business of his employers. But in violation of his duty, so far from doing what he was employed to do, he did something totally inconsistent with his duty, a thing having no connection whatever with his employer's service. The servant only is (1) 13 C. B. 237; 22 L. J. (C.P.) 100. 1869 STOREY v. ASHTON. 1869 STOREY v. ASHTON. liable, and not the employers. All the cases are reconcileable with that. The master is liable, even though the servant in the performance of his duty is guilty of a deviation or failure to perform it in the strictest and most convenient manner. But where the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of the servant in doing it." And Cresswell, J., says, 66 I agree, that under the circumstances, the carman cannot be said to have been acting in the employ of the defendants at the time the injury complained of was done, so as to make them responsible in damages for his negligence. No doubt if a servant in executing the order express or implied of his master, does it in a negligent, improper, and roundabout manner, the master may be liable. But here the man was doing something which he knew was contrary to his duty, and a violation of the trust reposed in him.” THE COURT then called upon Digby Seymour, Q.C., and Finlay, in support of the rule. Mitchell v. Crassweller (1) is distinguishable. There, the servant had reached home and then made a fresh start. Here the carman was at least a quarter of a mile from home, and he had still the empty bottles to take home, so that he can only be said to have been making a deviation from his way home, and he was acting therefore in the defendant's employment. In Joel v. Morison (2), Parke, B., laid down the law to the jury thus, "If the servants, being on their master's business, took a détour to call upon a friend, the master will be responsible... The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable." Again, in Sleath v. Wilson (3), the facts were, that the servant after putting his master down in Great Stamford Street, was directed to drive to the Red Lion stables in Castle Street, Leicester Square, instead of which he drove to Old Street Road to deliver a parcel of his own, (1) 13 C. B. 237; 22 L. J. (C.P.) 100. (2) 6 C. & P. at p. 503. (3) 9 C. & P. 607, 612. and on returning thence to Leicester Square drove over and injured a person. And Erskine, J., told the jury, "It is quite clear that if a servant, without his master's knowledge, takes his master's carriage out of the coach-house, and with it commits an injury, the master is not answerable; and on this ground, that the master has not intrusted the servant with the carriage. But whenever the master has intrusted the servant with the control of the carriage, it is no answer that the servant acted improperly in the management of it. If it were, it might be contended that if a master directs his servant to drive slowly, and the servant disobeys his orders and drives fast, and through his negligence occasions an injury, the master will not be liable. But that is not the law: the master in such a case will be liable, and the ground is, that he has put it in the servant's power to mismanage the carriage by intrusting him with it. And in this case I am of opinion that the servant was acting in the course of his employment, and till he had deposited the carriage in the Red Lion stables, in Castle Street, Leicester Square, the defendant (his master) was liable for any injury which might be committed through his negligence." Whatman v. Pearson (1) also shews that until the master's business is finished, the servant, however much he may disobey the order of his master, is acting in the master's employment so as to make the master liable for his negligence. COCKBURN, C.J. I am of opinion that the rule must be discharged. I think the judgments of Maule and Cresswell, JJ. in Mitchell v. Crassweller (2) express the true view of the law, and the view which we ought to abide by; and that we cannot adopt the view of Erskine, J., in Sleath v. Wilson (3), that it is because the master has intrusted the servant with the control of the horse and cart that the master is responsible. The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant. I am very far from saying, if the servant when going on his master's business took a somewhat longer road, that owing to this deviation he would cease to be in the employment of the master, so as to divest the latter (1) Law Rep. 3 C. P. 422. (2) 13 C. B. 237; 22 L. J. (C.P.) 100. (3) 9 C. & P. 607, 612. 1869 STOREY บ. ASHTON. 1869 STOREY v. ASHTON. of all liability; in such cases, it is a question of degree as to how far the deviation could be considered a separate journey. Such a consideration is not applicable to the present case, because here the carman started on an entirely new and independent journey which had nothing at all to do with his employment. It is true that in Mitchell v. Crassweller (1) the servant had got nearly if not quite home, while, in the present case, the carman was a quarter of a mile from home; but still he started on what may be considered a new journey entirely for his own business, as distinct from that of his master; and it would be going a great deal too far to say that under such circumstances the master was liable. MELLOR, J. I am of the same opinion. Generally speaking, the master is answerable for the negligent doing of what he employs his servant to do; and it is not, as Cresswell, J. says, because the servant in executing his master's orders, does so in a roundabout way, that the master is to be exonerated from liability. But here, though the carman started on his master's business, and had delivered the wine and collected the empty bottles, when he had got within a quarter of a mile from the defendant's office, he proceeded in a directly opposite direction, and as soon as he started in that direction he was doing nothing for his master; on the contrary, every step he drove was away from his duty. LUSH, J. I am of the same opinion. The question in all such cases as the present is whether the servant was doing that which the master employed him to do. If he was, the master is liable for the negligence just as if he himself was guilty of it. Here the employment was to deliver the wine, and carry the empty bottles home; and if he had been merely going a roundabout way home, the master would have been liable; but he had started on an entirely new journey on his own or his fellow-servant's account, and could not in any way be said to be carrying out his master's employment. HANNEN, J., concurred. Attorneys for plaintiff: Dubois & Maynard. Attorneys for defendant: Plews & Irvine. (1) 13 C. B. 237; 22 L. J. (C.P.) 100. Rule discharged. MARKS v. FELDMAN. Bankrupt—Fraudulent Preference-Relution of Title of Assignees-Money had and received. In July, J., being indebted to the defendant in between 2001. and 3007., and to other creditors in about 1707., voluntarily gave the defendant a bill of sale of all his goods, stock in trade, &c., with a power to enter and sell if the amount owing were not paid on demand. In October the defendant entered and sold the goods, realizing less than the debt. In November, J. was adjudged a bankrupt on his own petition; and the plaintiff, having been appointed creditors' assignee, sued the defendant for the conversion, and for money had and received :— Held, that, as the adjudication was on the bankrupt's own petition, and there was therefore no relation back so as to make the bill of sale an act of bankruptcy, the goods were the defendant's own when he sold them, and an action would not lie for the conversion, nor could the proceeds be money had and received to the use of the plaintiff. DECLARATION by plaintiff as creditors' assignee of R. P. Jackson, a bankrupt. First count, that before Jackson was a bankrupt, defendant converted to his own use and wrongfully deprived him of goods. Second count, that after the bankruptcy defendant converted goods belonging to plaintiff as assignee. Third count, for money had and received by defendant to the use of plaintiff. Pleas: 1. To first and second counts, not guilty. 2 & 3. To first and second counts respectively, a traverse of the property in the goods as alleged. 4. To third count, never indebted. At the trial before Hannen, J., at the York spring assizes, 1868, it appeared that on the 26th of July, 1867, one Jackson, a jeweller and watchmaker, being indebted to the defendant in between 2007. and 3007., and in about 1707. to other creditors, voluntarily assigned all his goods, stock in trade, &c., to the defendant, with a power to him to enter Jackson's premises, and sell the goods comprised in the bill of sale, if the amount owing by Jackson to the defendant were not paid on demand. On the 19th of October the defendant, after demand and nonpayment, entered and sold the goods. 1869 May 7. |